FOURTH AMENDED AND RESTATED INTERCREDITOR AND LOCKBOX ADMINISTRATION AGREEMENT

Exhibit 10.39

FOURTH AMENDED AND RESTATED
INTERCREDITOR AND LOCKBOX
ADMINISTRATION AGREEMENT

dated as of June 30, 2005

      THIS FOURTH AMENDED AND RESTATED INTERCREDITOR AND LOCKBOX ADMINISTRATION AGREEMENT , dated as of June 30, 2005 (such agreement as amended, modified, waived, supplemented or restated from time to time, the “ Agreement ”), is by and among:

     (1)  BANK OF AMERICA, N.A. , a national banking association (together with its successors and assigns, “ Bank of America ”), as lockbox bank under this Agreement (the “ Lockbox Bank ”);

     (2) Each of the FINANCING AGENTS party hereto, including each of the parties that from time to time may become a Financing Agent party hereto by execution and delivery of a joinder agreement in the form of Exhibit C hereto as financing agent under any of the Financing Documents (as defined below) (each a “ Financing Agent ” and collectively, the “ Financing Agents ”);

     (3)  CAPITALSOURCE FINANCE LLC , a Delaware limited liability company (the “ Originator ”), in each of the following capacities: (i) as original servicer under the Financing Documents (the “ Original Servicer ”) and (ii) as lockbox servicer under this Agreement (solely in such capacity, the “ Lockbox Servicer ”); and

     (4)  CAPITALSOURCE FUNDING INC. , a Delaware corporation (f/k/a CapitalSource Funding LLC), as the owner of the lockbox accounts and lockbox (in such capacity, the “ Owner ”).

R E C I T A L S

      WHEREAS , the Originator and certain of its affiliates have entered into various commercial paper conduit, warehouse, securitization, repurchase, loan sale and financing arrangements (each such transaction is referred to herein as a “ Financing ” and, collectively, such transactions are referred to herein as “ Financings ”) more particularly described on Schedule I hereto, pursuant to which the Originator and/or such affiliates have sold, assigned, transferred and/or granted a security interest in certain specific loans, receivables, general intangibles, other assets and related security (collectively, together with any proceeds thereof, being the “ Obligations ”) in favor of the respective Financing Agents;

      WHEREAS , the Originator and certain of its affiliates may from time to time enter into additional Financings pursuant to which the Originator and/or such affiliates may sell, assign, transfer and/or grant a security interest in certain specific Obligations in favor of one or more subsequent Financing Agents (the specified Obligations which have been sold, assigned, transferred and/or granted, in the case of Financings consummated on or prior to the date hereof

and identified on Schedule I hereto as of the date hereof, and which may be sold, assigned, transferred and/or granted as part of a Financing consummated after the date hereof that involves a Financing Agent, are referred to herein collectively as “ Financing Assets ” and the agreements, instruments or documents executed in connection therewith, as any of the same may be amended, supplemented, waived, modified or restated from time to time, are referred to collectively herein as the “ Financing Documents ”); and

      WHEREAS , the parties hereto have entered into a Fifth Amended and Restated Three Party Agreement Relating to Lockbox Services and Control, dated on or about June 30, 2005, as the same may be amended, supplemented or restated from time to time in accordance therewith and herewith (a copy of which is attached as Exhibit A hereto) (as amended, modified, supplemented, restated or replaced from time to time, the “ Lockbox Agreement ”) providing for the processing of deposits by the Lockbox Bank to accounts in the name of the Owner (the “ Lockbox Accounts ”) of payments made by the underlying obligors of certain Obligations that are received from time to time at the lockbox designated therein (the “ Lockbox ”) or otherwise deposited directly into the Lockbox Accounts by wire transfer or otherwise and income or proceeds thereof (collectively, “ Remittances ”), some of which Remittances may relate to various Financing Assets and some of which may not relate to any of the Financing Assets but constitute Remittances with respect to Obligations or portions of Obligations or other loans, receivables, general intangibles, other property and related security retained by the Originator (including such property in which other assignees of the Originator may have an interest) (collectively, “ Other Assets ”).

      NOW, THEREFORE , for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

      Section 1. Regarding Liens and Interests .

     (a) Each Financing Agent shall not have or assert, and hereby disclaims, any right, title or interest in or to any (i) Financing Assets in which a security interest has not been granted to it pursuant to its applicable Financing Documents, (ii) Other Assets and (iii) Remittances relating to either of the foregoing except to the extent such Remittances are commingled with Remittances of such Financing Agent’s Financing Assets which are pending distribution, and each Financing Agent claims an undivided interest in the contents of the Lockbox Accounts to the extent such Remittances deposited therein represent its Financing Assets, in each case subject in all respects to the terms of this Agreement; provided , however , that each such Financing Agent does not hereby disclaim its rights under Section 1(d) and 2(c) below, or any rights it may have as a beneficiary of the security interest in the Lockbox and Lockbox Accounts, referred to in Section 3 below.

     (b) Each of the Originator, the Original Servicer, the Lockbox Servicer and the Owner shall not have or assert, and hereby disclaims, any right, title or interest in or to any Financing Assets (except to the extent permitted pursuant to the related Financing Documents), including, without limitation, all Remittances relating thereto, except to the extent such Remittances are commingled with the Remittances representing Financing Assets which are pending distribution, in which case the Originator claims an undivided interest in the contents of

the Lockbox Accounts solely to the extent such Remittances represent Other Assets and subject in all respects to the terms of this Agreement.

     (c) Nothing herein shall be deemed to waive any rights of any Financing Agent in the event of any transfer or other disposition of Financing Assets, as the case may be, in violation of the agreements relating thereto or to preclude the exercise by any Financing Agent of rights and remedies provided for under the Financing Documents related to the Remittances related to such Financing Agent, as applicable, including without limitation (and if and to the extent so provided therein or thereby) notification to customers of the Originator directing such customer’s Remittances be made to an account or lockbox other than the Lockbox Accounts or Lockbox, it being understood that this Agreement addresses only Remittances which are contained in or on deposit in the Lockbox or Lockbox Accounts; provided that in no event shall any Financing Agent cause any Remittances in which another Financing Agent has an interest or which comprise part of the Other Assets to be remitted to an account other than the Lockbox Accounts without the prior written consent of each other Financing Agent that would be affected thereby and, in the case of Other Assets, the Originator, as applicable.

     (d) In exercising any of its rights or remedies under the Financing Documents, as applicable, with respect to any right, title and interest of the Originator as lessee, licensee or otherwise, in and to any computer hardware and software or related intellectual property, each of the Financing Agents agrees that it shall not take any action that would materially impair the rights or ability of any other party to use such property in connection with the transactions contemplated under the Financing Documents, as applicable. The parties acknowledge that such property may be necessary to or useful in the servicing, administration and collection of all of the Financing Assets and agree to cooperate in good faith such that the respective interests of each Financing Agent therein and with respect thereto shall be protected and preserved.

      Section 2. Separation of Collateral .

     (a) Each Financing Agent hereby agrees promptly to transfer and return to, or in accordance with the directions of, any other applicable Financing Agent or the Originator (as applicable), at such account or other place as the appropriate other Financing Agent or the Originator (as applicable) may instruct, any funds or other property that are received by such Financing Agent and that are identifiable by such Financing Agent, using reasonable efforts, or that are identified by the Originator, the Original Servicer (or a Successor Servicer, if applicable), the Lockbox Servicer, the Owner or another Financing Agent, in each case, as not constituting Financing Assets (or portions thereof) in which such Financing Agent has been granted an interest pursuant to its applicable Financing Documents but instead constituting (x) Financing Assets (or portions thereof) other than those in which such Financing Agent has been granted an interest under its Financing Documents or (y) Other Assets. For purposes of maintaining the perfection of the other Financing Agent’s (as applicable) interest therein, the other Financing Agents each hereby appoint such Financing Agent as its agent in respect of such funds and other property; provided , that such Financing Agent’s sole duty as such agent shall be to hold such funds or other property for the benefit of the applicable Financing Agent and to transfer such funds or other property to or at the direction of such other Financing Agent (as applicable) as aforesaid. To the extent any Financing Agent fails to promptly comply with its obligations to return funds or other property as provided in this Section 2(a) , subsequent

distributions that would otherwise be made to such Financing Agent may be paid (on behalf of such Financing Agent at the instruction of the Originator or such Financing Agent) to such other Financing Agent or the Originator until such Financing Agent’s obligation to return such funds or other property is satisfied (whether by return of such funds or other property or through subsequent distributions), and each Financing Agent hereby agrees to and authorizes the application of such payments and the rights of the Originator or the applicable Financing Agent, as applicable, to cause such application.

     (b) Each of the Originator, the Original Servicer, the Lockbox Servicer and the Owner hereby agrees promptly to transfer and return to, or in accordance with the directions of, the applicable Financing Agent, at such account or other place as such Financing Agent may instruct, any funds or other property that are received by the Originator, the Original Servicer, the Lockbox Servicer or the Owner, and that are identifiable by the Originator, the Original Servicer, the Lockbox Servicer or the Owner, using reasonable efforts, or that are identified by any Financing Agent, in each case, as not constituting Other Assets but instead constituting Financing Assets (or proceeds thereof). For purposes of maintaining the perfection of the respective Financing Agent’s interest therein, the applicable Financing Agents each hereby appoint the Originator, the Original Servicer, the Lockbox Servicer or the Owner, as applicable, as their agent in respect of any such funds and other property. The Originator, the Original Servicer, the Lockbox Servicer or the Owner, as such agent, shall hold such funds or other property for the benefit of the applicable Financing Agent and transfer such funds or other property to or at the direction of such Financing Agent as aforesaid. To the extent the Originator fails to promptly comply with its obligations to return funds or other property as provided in this Section 2(b) , subsequent distributions that would otherwise be made to the Originator shall be paid (on behalf of the Originator and the Originator hereby directs such amounts to be paid as described herein) to any applicable Financing Agent (or, pro rata among any applicable group of Financing Agents) until the Originator’s obligation to return such funds or other property is satisfied (whether by return of such funds or other property or through subsequent distributions), and the Originator hereby agrees to and authorizes the application of such payments and the rights of the applicable Financing Agent or Financing Agents to cause such application.

     (c) Each Financing Agent hereby acknowledges that certain related records and other files (including electronic files), documentation, software and similar assets may comprise a portion of the Financing Assets inapplicable to that Financing Agent and/or Other Assets. Each of the parties hereto agrees to cooperate in good faith such that the respective interests of the applicable Financing Agent (or further assignees thereof) in such assets shall be protected and preserved and, without limiting the obligations of any party hereto, each party hereto agrees to permit each other reasonable access to such assets (to the extent they shall be in the possession or control of such party) as shall be necessary or desirable to manage and realize on the Financing Assets or the Other Assets, as the case may be. Except as otherwise provided in the immediately preceding sentence, in the event that any of the Financing Assets or the Other Assets become commingled, then each of the Financing Agents shall, in good faith, cooperate with each other to identify and separate any such commingled Financing Assets or the Other Assets, as applicable.

     (d) The out–of–pocket costs and expenses incurred by the parties hereto to effect any identification, separation and/or sharing (including without limitation reasonable fees and expenses of auditors and attorneys) required by this Section 2 that is not completed by the

Original Servicer or the Originator (at their own expense) shall be borne by the Originator. No Financing Agent shall be required by this Section 2 to take any action that it believes, in good faith, may prejudice its ability to realize the value of, or to otherwise protect, its interests (and the interests of the parties for which it acts) in the applicable Financing Assets or the Other Assets, respectively; provided , that nothing in this sentence shall relieve the Originator or any of its subsidiaries or affiliates of its obligations hereunder or under the Financing Documents, as applicable, with respect to the Financing Assets notwithstanding any effect thereof on the Other Assets or the rights or interests of the Originator or any of its subsidiaries or affiliates therein or thereto.

      Section 3. Lockbox Issues .

     (a) The Originator, the Owner, the Original Servicer, the Lockbox Servicer and the Lockbox Bank confirm to each of the Financing Agents that the Lockbox and the Lockbox Accounts have been established by the Owner with the Lockbox Bank, and that the Lockbox Agreement is in full force and effect pursuant to its terms.

     (b) The Lockbox Numbers and Lockbox Account Numbers are set forth below:

The Originator and the Owner agree that the Lockbox and the Lockbox Accounts shall be maintained at all times in the name of the Owner.

     (c) The Lockbox Bank’s authorized representatives will have sole access to the Lockbox, and neither the Originator nor any of its affiliates (including, without limitation, the

Owner) shall have any authority to cancel or alter the name, address, location and other terms of the Lockbox without the prior written consent of all the parties hereto. Items will be endorsed, credited to the Lockbox Accounts and presented for payment in accordance with the Standard Terms and Conditions as attached as Exhibit A to and made a part of the Lockbox Agreement.

     (d) The Original Servicer is hereby designated as the initial Lockbox Servicer. The Original Servicer confirms to each of the parties hereto that all actions of the Original Servicer taken hereunder and under the Lockbox Agreement with respect to Remittances received in the Lockbox or Lockbox Accounts shall be in its capacity as servicer under the applicable Financing Documents or hereunder and not in its individual capacity. The Original Servicer (or any Successor Servicer (as defined below)), shall (within two (2) business days of receipt of the associated remittance details) determine and identify the portion of such Remittance received in the Lockbox or Lockbox Accounts that represents the Financing Assets (“ Financing Remittances ”) and the portion that represents Other Assets (“ Other Remittances ”). To the extent such Remittances constitute Financing Remittances, the Original Servicer shall determine which Financing each portion of such Financing Remittances relate to and cause the transfer of such funds, to the extent it is permitted to do so pursuant to Section 3(e)(1) below, to the appropriate collection account in accordance with (and within the time frames specified by) the related Financing Documents. In addition, the Original Servicer (or a Successor Servicer) shall determine whether any amounts in the Lockbox Accounts do not constitute Remittances with respect to either Financing Assets or Other Assets, but have nonetheless been paid or deposited thereto by a customer in error (“ Misdirected Payments ”). The Original Servicer (or a Successor Servicer) shall provide notice to the Lockbox Servicer (if a separate entity) of the amounts of the payments to be made to each Financing Agent and the Originator, as applicable, and of any Misdirected Payments (such notice being an “ Allocation Notice ”), which amounts shall be determined in accordance with this Section 3(d). For purposes of this Agreement, portions of Financing Remittances that relate to each Financing and the Other Remittances shall each constitute a “ Type ” of Remittance and the category of Obligations (or portion thereof) to which such Remittance relates constituting a “ Type ” of Obligation.

     Each of the parties hereto hereby agrees that:

(each of the events in clause (1) and (2) being a “ Lockbox Trigger Event ”), then in any such case this Agreement and the Lockbox Agreement shall continue to remain in full force and effect and a successor servicer to the Original Servicer hereunder shall be appointed by delivery of joint written notice from both (a) the Financing Agents representing holders of at least 66.67% of the Financing Assets that are part of financings that are term securitizations and (b) the Financing Agents representing holders of at least 66.67% of the Financing Assets that are part of financings that are not term securitizations, each as determined from the most recent Financing Asset Report (as defined below) delivered by the Originator (such Financing Agents being the

“ Requisite Financing Agents ”), to the Originator (with a copy to the Lockbox Bank) identifying such successor servicer, together with such successor servicer’s written acceptance of such appointment, and such successor servicer (being referred to herein as the “ Successor Servicer ”) shall thereupon succeed to all rights, benefits, duties and obligations of the Original Servicer hereunder, to the extent the same relate to the giving of disbursement instructions above.

     Each of the parties hereto hereby agrees that if the Lockbox Bank’s short-term debt rating is reduced below “F-1” by Fitch, Inc., then in any such case this Agreement and the Lockbox Agreement shall continue to remain in full force and effect and a successor lockbox bank to the initial Lockbox Box hereunder shall be appointed by delivery of joint written notice from each Financing Agent then party to this Agreement pursuant to and in accordance with the provisions of Section 3(h) hereof.

     In the event a customer with respect to an Obligation of one Type is also a customer with respect to any other Type of Obligation, and one or more Remittances related to such customer are in the Lockbox Accounts at any one time, the Original Servicer (or a Successor Servicer, if applicable) shall determine which Remittances relate to which Type, and shall also determine how such Remittances are to be allocated, in accordance with the allocation rules described below (unless otherwise specified in writing by the customer in respect of that customer’s Remittance, in which case the Remittance shall be allocated in accordance with such customer specification to the extent that none of the parties hereto object to such specification):

     (i) First, to all past due payments, if any, with respect to each Obligation of such customer, without regard to Type (but subject to the proviso below);

     (ii) Second, to the minimum payment due in the current payment period with respect to each Obligation of such customer, without regard to Type (but subject to the proviso below); and

     (iii) Third, to the remaining outstanding balance of each Obligation of such customer, without regard to Type (but subject to the proviso below);

provided , that if in allocating Remittances in accordance with the above,

     (x) the Remittances to be allocated are in respect of more than one Type, and

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