NOTE PURCHASE AGREEMENT among CAPITALSOURCE FUNDING II TRUST, as Issuer CS FUNDING II DEPOSITOR LLC, as Depositor CAPITALSOURCE FINANCE LLC as Loan Originator and CITIGROUP GLOBAL MARKETS REALTY CORP. as Purchaser Dated as of September 17, 2003...
EXHIBIT 10.3.2
among
CAPITALSOURCE FUNDING II TRUST,
as Issuer
CS FUNDING II DEPOSITOR LLC,
as Depositor
CAPITALSOURCE FINANCE LLC
as Loan Originator
and
CITIGROUP GLOBAL MARKETS REALTY CORP.
as Purchaser
Dated as of September 17, 2003
COMMERCIAL LOAN BACKED NOTES
TABLE OF CONTENTS
ARTICLE I | ||||
DEFINITIONS | ||||
SECTION 1.01 | Certain Defined Terms | 1 | ||
SECTION 1.02 | Other Definitional Provisions | 2 | ||
ARTICLE II | ||||
CLOSING AND PURCHASES OF ADDITIONAL NOTE PRINCIPAL BALANCES |
||||
SECTION 2.01 | Closing | 3 | ||
SECTION 2.02 | Requests for Purchases of Additional Note Principal Balances; Reductions in Note Principal Balance | 3 | ||
ARTICLE III | ||||
TRANSFER DATES | ||||
SECTION 3.01 | Transfer Dates | 4 | ||
ARTICLE IV | ||||
CONDITIONS PRECEDENT | ||||
SECTION 4.01 | Closing Subject to Conditions Precedent | 5 | ||
ARTICLE V | ||||
REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE DEPOSITOR |
||||
SECTION 5.01 | Representations and Warranties | 7 | ||
SECTION 5.02 | Securities Act | 10 | ||
SECTION 5.03 | No Fee | 10 | ||
SECTION 5.04 | Information | 10 | ||
SECTION 5.05 | The Purchased Notes | 10 | ||
SECTION 5.06 | Use of Proceeds | 10 | ||
SECTION 5.07 | The Depositor | 10 | ||
SECTION 5.08 | Taxes, etc | 10 |
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SECTION 5.09 | Financial Condition | 11 | ||
ARTICLE VI | ||||
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER |
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SECTION 6.01 | Representations and Warranties | 11 | ||
ARTICLE VII | ||||
COVENANTS OF THE ISSUER AND THE DEPOSITOR | ||||
SECTION 7.01 | Information from the Issuer | 12 | ||
SECTION 7.02 | Access to Information | 13 | ||
SECTION 7.03 | Ownership and Security Interests; Further Assurances | 13 | ||
SECTION 7.04 | Covenants | 13 | ||
SECTION 7.05 | Amendments | 13 | ||
SECTION 7.06 | With Respect to the Exempt Status of the Purchased Notes | 14 | ||
ARTICLE VIII | ||||
ADDITIONAL COVENANTS | ||||
SECTION 8.01 | Legal Conditions to Closing | 14 | ||
SECTION 8.02 | Mutual Obligations | 14 | ||
SECTION 8.03 | Restrictions on Transfer | 14 | ||
ARTICLE IX | ||||
INDEMNIFICATION | ||||
SECTION 9.01 | Indemnification of Purchaser | 14 | ||
ARTICLE X | ||||
LIMITED RECOURSE | ||||
SECTION 10.01 | Limited Recourse | 15 | ||
ARTICLE XI | ||||
MISCELLANEOUS |
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SECTION 11.01 | Amendments | 15 | ||
SECTION 11.02 | Notices | 15 | ||
SECTION 11.03 | No Waiver; Remedies | 15 | ||
SECTION 11.04 | Binding Effect; Assignability | 16 | ||
SECTION 11.05 | Provision of Documents and Information | 16 | ||
SECTION 11.06 | GOVERNING LAW; JURISDICTION | 16 | ||
SECTION 11.07 | No Proceedings | 17 | ||
SECTION 11.08 | Execution in Counterparts | 17 | ||
SECTION 11.09 | No Recourse - Purchaser and Depositor | 17 | ||
SECTION 11.10 | Survival | 18 | ||
SECTION 11.11 | Tax Characterization | 18 | ||
SECTION 11.12 | Conflicts | 18 | ||
SECTION 11.13 | Limitation on Liability | 18 |
Schedule I - Information for Notices
Exhibit A Borrowing Base Certificate
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NOTE PURCHASE AGREEMENT dated as of September 17, 2003 (the “Note Purchase Agreement”), among CapitalSource Funding II Trust (the “Issuer”), CS Funding II Depositor LLC (the “Depositor”), CapitalSource Finance LLC (“CapitalSource”) and Citigroup Global Markets Realty Corp. (“Citigroup,” and in its capacity as Purchaser hereunder, the “Purchaser”).
The parties hereto agree as follows:
ARTICLE I
“Closing” shall have the meaning set forth in Section 2.01.
“Closing Date” shall have the meaning set forth in Section 2.01.
“Commitment Fee” shall mean the commitment fee payable to the Purchaser on the Closing Date equal to (a) 35 basis points (0.35%) multiplied by (b) $400,000,000, such payment to be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim.
“Confidential Information” means all marketing information, financial information, terms sheets and other information concerning the transactions contemplated thereby, prepared by the Purchaser and its Affiliates.
“Eligible Loan” shall have the meaning set forth in the Sale and Servicing Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Governmental Actions” means any and all consents, approvals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Governmental Rules.
“Governmental Authority” means the United States of America, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction over the applicable Person.
“Governmental Rules” means any and all laws, statutes, codes, rules, regulations, ordinances, orders, writs, decrees and injunctions, of any Governmental Authority and any and all
legally binding conditions, standards, prohibitions, requirements and judgments of any Governmental Authority.
“Indemnified Party” means the Purchaser and any of its officers, directors, employees, agents, representatives, assignees and Affiliates and any Person who controls the Purchaser or its Affiliates within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
“Indenture” means the Indenture dated as of September 17, 2003 among the Issuer as Issuer and Xxxxx Fargo Bank Minnesota, National Association as Indenture Trustee as the same may be amended and supplemented from time to time.
“Investment Company Act” shall have the meaning provided in Section 5.01(i).
“Lien” means, with respect to any asset, (a) any mortgage, lien, pledge, charge, security interest, hypothecation, option or encumbrance of any kind in respect of such asset or (b) the interest of a vendor or lessor under any conditional sale agreement, financing lease or other title retention agreement relating to such asset.
“Loan Originator” means CapitalSource, as originator of the Loans.
“Maximum Note Principal Balance” means an amount equal to $400,000,000, less (i) the aggregate outstanding Note Principal Balance of the Purchased Notes, less (ii) any reductions pursuant to Section 2.06 of the Sale and Servicing Agreement.
“Purchaser” means the Purchaser and its permitted successors and assigns.
“Purchased Notes” means the CapitalSource Funding II Trust Commercial Loan Backed Notes issued by the Issuer pursuant to the Indenture.
“Sale and Servicing Agreement” means the Sale and Servicing Agreement dated as of September 17, 2003, among the Issuer, the Depositor, the Loan Originator, the Servicer and Xxxxx Fargo Bank Minnesota, National Association as Indenture Trustee, Collateral Custodian and Backup Servicer, as the same may be amended, modified or supplemented from time to time.
“Servicer” means CapitalSource Finance LLC or its permitted successors and assigns.
SECTION 1.02 Other Definitional Provisions.
(a) All terms defined in this Note Purchase Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in Section 1.01, and accounting terms
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partially defined in Section 1.01 to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms herein are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained herein shall control.
(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Note Purchase Agreement shall refer to this Note Purchase Agreement as a whole and not to any particular provision of this Note Purchase Agreement; and Section, subsection, Schedule and Exhibit references contained in this Note Purchase Agreement are references to Sections, subsections, and Exhibits in or to this Note Purchase Agreement unless otherwise specified.
ARTICLE II
CLOSING AND PURCHASES OF
ADDITIONAL NOTE PRINCIPAL BALANCES
SECTION 2.02 Requests for Purchases of Additional Note Principal Balances; Reductions in Note Principal Balance. (a) At any time during the Revolving Period no later than 12:00 p.m. New York time at least one (1) Business Day prior to a proposed Transfer Date, to the extent that the aggregate outstanding Note Principal Balance of the Purchased Notes (after giving effect to the proposed purchase) is less than the Maximum Note Principal Balance, and subject to the terms and conditions hereof and in accordance with the other Basic Documents, the Issuer may request that the Purchaser purchase Additional Note Principal Balances (each such request, a “Notice of Additional Note Principal Balance”) in the form attached as Exhibit A to the Sale and Servicing Agreement. In addition, in connection with such Notice of Additional Note Principal Balance the Issuer shall deliver or cause the delivery of (i) a Borrowing Base Certificate in the form attached as Exhibit F to the Sale and Servicing Agreement, and a Loan Schedule, (ii) a copy of the S&SA Assignment executed by the Depositor and the Issuer with respect to the Eligible Loans proposed as Collateral for such Additional Note Principal Balance, (iii) a copy of the LPA Assignment executed by the Loan Originator and the Depositor and (iv) such additional information as may be reasonably requested by the Purchaser.
(b) In addition, the Issuer shall or shall cause the Servicer to deliver to the Collateral Custodian (i) no later than 12:00 p.m. New York time on the Business Day prior to the Transfer
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Date, by facsimile transmission or in an electronic format mutually agreed upon by the Servicer and the Collateral Custodian, a copy of the duly executed original Underlying Notes of the Eligible Loans and the related Assignments of Mortgage (if any) and, if any Loans are closed in escrow, a certificate (in the form of Exhibit B) from the closing attorneys of such Eligible Loans certifying the possession of the Required Loan Documents; provided, however, notwithstanding the foregoing, the Required Loan Documents (including any UCCs included in the Required Loan Documents) shall be in the possession of the Collateral Custodian within two (2) Business Days of any related Transfer Date as to such Loans.
On the identified Transfer Date, the Purchaser may (in the exercise of its sole and absolute discretion) purchase the Additional Note Principal Balances requested in the Notice of Additional Note Principal Balance, subject to the terms and conditions and in reliance upon the covenants, representations and warranties set forth herein and in the other Basic Documents.
ARTICLE III
(a) Subject to the conditions and terms set forth herein and in Section 2.06 of the Sale and Servicing Agreement with respect to each Transfer Date, the Purchaser’s purchase of Additional Note Principal Balances shall be subject to the satisfaction, as of the applicable Transfer Date, of each of the following additional conditions:
(i) With respect to the initial Transfer Date only, the Purchaser shall have received the Commitment Fee;
(ii) Each document required to be provided pursuant to Section 2.02 hereof shall have been provided to the Purchaser;
(iii) Each condition set forth in Section 2.06 of the Sale and Servicing Agreement shall have been satisfied;
(iv) Each of the representations and warranties of the Issuer, the Servicer, the Loan Originator and the Depositor made in the Basic Documents shall be true and correct as of such date (except to the extent they expressly relate to an earlier or later time);
(v) The Issuer, the Servicer, the Loan Originator and the Depositor shall be in compliance with all of their respective covenants contained in the Basic Documents and the Purchased Notes, including, without limitation, the financial covenants contained in Section 7.01 of the Sale and Servicing Agreement;
(vi) No Event of Default or Default shall have occurred and be continuing; and
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(vii) With respect to each Transfer Date other than the initial Transfer Date, the Purchaser shall have received evidence reasonably satisfactory to it of the completion of all recordings, registrations, and filings as may be necessary or, in the reasonable opinion of the Purchaser, desirable to perfect or evidence the assignments required to be effected on such Transfer Date in accordance with the Sale and Servicing Agreement including, without limitation, the assignment of the Loans and the proceeds thereof required to be assigned pursuant to the related LPA Assignment, S&SA Assignment and the Indenture.
(b) The Purchaser shall determine in its reasonable discretion whether each of the above conditions have been met and its determination shall be binding on the parties hereto.
(c) The price paid by the Purchaser on each Transfer Date for the Additional Note Principal Balance purchased on such Transfer Date shall be equal to the amount of such Additional Note Principal Balance, and shall be remitted not later than 5:00 p.m. New York City time on the Transfer Date by wire transfer of immediately available funds to or at the direction of the Loan Originator on behalf of the Issuer.
(d) The Purchaser shall record on the schedule attached to the Purchased Notes, the date and amount of any Additional Note Principal Balance purchased by it; provided, that failure to make such recordation on such schedule or any error in such schedule shall not adversely affect the Purchaser’s rights with respect to its Note Principal Balance and its right to receive interest payments in respect of the Note Principal Balance actually held. Absent manifest error, the Note Principal Balance of the Purchased Notes as set forth in the Purchaser’s records shall be binding upon the parties hereto, notwithstanding any notation or record made or kept by any other party hereto.
ARTICLE IV
(a) Payment of Commitment Fee. The Purchaser shall have received the full amount of the Commitment Fee, in immediately available funds, in accordance with the Purchaser’s wiring instructions.
(b) Performance by the Issuer, the Depositor, the Servicer and the Loan Originator. All the terms, covenants, agreements and conditions of the Basic Documents to be complied with and performed by the Issuer, the Depositor, the Servicer and the Loan Originator on or before the Closing Date shall have been complied with and performed in all material respects.
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(e) Opinions of Counsel to the Issuer, the Loan Originator, the Servicer and the Depositor. Counsel to the Issuer, the Loan Originator, the Servicer and the Depositor shall have delivered to the Purchaser opinions, dated as of the Closing Date and reasonably satisfactory in form and substance to the Purchaser and its counsel. In addition to the foregoing, the Loan Originator shall have caused its counsel to deliver to the Purchaser an opinion to the effect that the Issuer will not be treated as an association (or publicly traded partnership) taxable as a corporation or as a taxable mortgage pool, for federal income tax purposes.
(f) Opinions of Counsel to the Indenture Trustee. Counsel to the Indenture Trustee shall have delivered to the Purchaser a favorable opinion, dated as of the Closing Date and reasonably satisfactory in form and substance to the Purchaser and its counsel.
(g) Opinions of Counsel to the Owner Trustee. Delaware counsel to the Owner Trustee of the Issuer shall have delivered to the Purchaser favorable opinions regarding the formation, existence and standing of the Issuer and of the Issuer’s execution, authorization and delivery of each of the Basic Documents to which it is a party and such other matters as the Purchaser may reasonably request, dated as of the Closing Date and reasonably satisfactory in form and substance to the Purchaser and its counsel.
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If any condition specified in this Section 4.01 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Purchaser by notice to the Loan Originator at any time at or prior to the Closing Date, and the Purchaser shall incur no liability as a result of such termination.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE ISSUER AND THE DEPOSITOR
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(a) The Issuer has been duly organized and is validly existing and in good standing as a statutory trust under the laws of the State of Delaware, with requisite trust power and authority to own its properties and to transact the business in which it is now engaged, and is duly qualified to do business and is in good standing (or is exempt from such requirements) in each State of the United States where the nature of its business requires it to be so qualified and the failure to be so qualified and in good standing would reasonably be expected to have a material adverse effect on the Issuer or any adverse effect on the interests of the Purchaser.
(b) The issuance, sale, assignment and conveyance of the Purchased Notes and the Additional Note Principal Balances, the performance of the Issuer’s obligations under each Basic Document to which it is a party and the consummation of the transactions therein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any Lien (other than any Lien created by the Basic Documents), charge or encumbrance upon any of the property or assets of the Issuer or any of its Affiliates pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it or any of its Affiliates is bound or to which any of its property or assets is subject, nor will such action result in any violation of the provisions of its organizational documents or any Governmental Rule applicable to the Issuer, in each case which could reasonably be expected to have a material adverse effect on the transactions contemplated therein.
(c) No Governmental Action which has not been obtained is required by or with respect to the Issuer in connection with the execution and delivery to the Purchaser of the Purchased Notes. No Governmental Action which has not been obtained is required by or with respect to the Issuer in connection with the execution and delivery of any of the Basic Documents to which the Issuer is a party or the consummation by the Issuer of the transactions contemplated thereby except for any requirements under state securities or “blue sky” laws in connection with any transfer of the Purchased Notes.
(d) The Issuer possesses all material licenses, certificates, authorities or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, and has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, authority or permit which, singly or in the aggregate, would reasonably be expected to materially and adversely affect its condition, financial or otherwise, or its earnings, business affairs or business prospects.
(e) Each of the Basic Documents to which the Issuer is a party has been duly authorized, executed and delivered by the Issuer and is a valid and legally binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, subject to enforcement of
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bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity.
(f) The execution, delivery and performance by the Issuer of each of its obligations under each of the Basic Documents to which it is a party will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of its properties are subject or of any statute, order or regulation applicable to the Issuer of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Issuer or any of its properties, in each case which could reasonably be expected to have a material adverse effect on any of the transactions contemplated therein.
(g) The Issuer is not in violation of its organizational documents or in default under any agreement, indenture or instrument the effect of which violation or default would be material to the Issuer or the transactions contemplated by the Basic Documents. The Issuer is not a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Issuer that would reasonably be expected to materially and adversely affect (i) the ability of the Issuer to perform its obligations under any of the Basic Documents to which it is a party or (ii) the business, operations, financial condition, properties, assets or prospects of the Issuer.
(h) There are no actions or proceedings against, or investigations of, the Issuer pending, or, to the knowledge of the Issuer threatened, before any Governmental Authority, court, arbitrator, administrative agency or other tribunal (i) asserting the invalidity of any of the Basic Documents, or (ii) seeking to prevent the issuance of the Purchased Notes or the consummation of any of the transactions contemplated by the Basic Documents or the Purchased Notes, or (iii) that could reasonably be expected to materially and adversely affect the business, operations, financial condition, properties, assets or prospects of the Issuer or the validity or enforceability of, or the performance by the Issuer of its respective obligations under, any of the Basic Documents to which it is a party or (iv) seeking to affect adversely the income tax attributes of the Purchased Notes.
(i) The Issuer is not, and neither the issuance and sale of the Purchased Notes to the Purchaser nor the activities of the Issuer pursuant to the Basic Documents, shall render the Issuer an “investment company” or under the “control” of an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
(j) It is not necessary to qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(k) The Issuer is solvent and has adequate capital for its business and undertakings.
(l) The chief executive offices of the Issuer are located at c/o Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or, with
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the consent of the Purchaser, such other address as shall be designated by the Issuer in a written notice to the other parties hereto.
(m) There are no contracts, agreements or understandings between the Issuer and any Person granting such Person the right to require the filing at any time of a registration statement under the Act with respect to the Purchased Notes.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PURCHASER
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conflict with, or violate, result in a breach of or constitute a default under any term or provision of the Purchaser’s organizational documents or any Governmental Rule applicable to the Purchaser.
(c) Institutional Accredited Investor. The Purchaser is an institutional “accredited investor” within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the 1933 Act (an “Institutional Accredited Investor”) that is acquiring the Purchased Notes for its own account or for one or more accounts (each of which is an Institutional Accredited Investor) as to each of which it exercises sole investment discretion.
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administrative agency or governmental body having jurisdiction over the Purchaser that materially and adversely affects, or which could be expected in the future to materially and adversely affect the ability of the Purchaser to perform its obligations under this Note Purchase Agreement.
ARTICLE VII
COVENANTS OF THE ISSUER AND THE DEPOSITOR
(a) such information (including financial information), documents, records or reports with respect to the Collateral, including, without limitation, the Loans and the Loan Collateral, the Issuer, the Loan Originator, the Servicer or the Depositor as the Purchaser may from time to time reasonably request;
(b) as soon as possible and in any event within five (5) Business Days after the occurrence thereof, notice of each Event of Default under the Sale and Servicing Agreement or the Indenture, and each Default; and
(c) promptly and in any event within 30 days after the occurrence thereof, written notice of a change in address of the chief executive office or place of organization of the Issuer, the Loan Originator or the Depositor.
(a) examine all books, records and documents (including computer tapes and disks) in the possession or under the control of the Issuer or the Depositor relating to the Eligible Loans or the Basic Documents as may be requested, and
(b) visit the offices and property of the Issuer and the Depositor for the purpose of examining such materials described in clause (a) above.
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The Issuer and the Depositor agree to take any and all acts and to execute any and all further instruments reasonably necessary or requested by the Purchaser to more fully effect the purposes of this Note Purchase Agreement.
SECTION 7.06 With Respect to the Exempt Status of the Purchased Notes.
(a) Neither the Issuer nor the Depositor, nor any of their respective Affiliates, nor any Person acting on their behalf will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Purchased Notes under the Securities Act.
(b) Neither the Issuer nor the Depositor, nor any of their Affiliates, nor any Person acting on their behalf will engage in any form of general solicitation or general advertising (within the meaning of Regulation D promulgated under the Securities Act) in connection with any offer or sale of the Purchased Notes.
ARTICLE VIII
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ARTICLE IX
ARTICLE X
LIMITED RECOURSE
SECTION 10.01 Limited Recourse. At the option of the Purchaser, in the event that the Required Overcollateralization Amount is not satisfied on any date of determination, CapitalSource Finance LLC shall be required to remit to the Indenture Trustee an amount equal to such shortfall for payment to the Noteholders pursuant to Section 5.01(b)(7) of the Sale and Servicing Agreement. Such payment shall be applied to reduce the Note Principal Balance of the Purchased Notes. Notwithstanding the foregoing, in no event shall CapitalSource Finance LLC be required to make any payment pursuant to this Section 10.01 if the amount of the payment (or any portion thereof) would cause the aggregate amount of payments made by CapitalSource Finance LLC pursuant to this Section 10.01 on all prior dates during the term of this Agreement to exceed 10% of the Note Principal Balance outstanding on such date.
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ARTICLE XI
SECTION 11.04 Binding Effect; Assignability.
(a) This Note Purchase Agreement shall be binding upon and inure to the benefit of the Issuer, the Depositor and the Purchaser and their respective permitted successors and assigns (including any subsequent holders of the Purchased Notes); provided, however, except as provided in clause (d) below, neither the Issuer nor the Depositor shall have any right to assign their respective rights hereunder or interest herein (by operation of law or otherwise) without the prior written consent of the Purchaser.
(b) The Purchaser may, in the ordinary course of its business and in accordance with the Basic Documents and applicable law, including applicable securities laws, at any time sell to one or more Persons (each, a “Participant”), participating interests in all or a portion of its rights and obligations under this Note Purchase Agreement. Notwithstanding any such sale by the Purchaser of participating interests to a Participant, the Purchaser’s rights and obligations under this Note Purchase Agreement shall remain unchanged, the Purchaser shall remain solely responsible for the performance thereof, and the Issuer and the Depositor shall continue to deal solely and directly with the Purchaser and shall have no obligations to deal with any Participant in connection with the Purchaser’s rights and obligations under this Note Purchase Agreement.
(c) This Note Purchase Agreement shall create and constitute the continuing obligation of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time as all amounts payable with respect to the Purchased Notes shall have been paid in full.
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(d) The Purchaser may sell or assign the Purchased Note only with the prior consent of the Loan Originator unless (i) such sale or assignment is to an Affiliate of the Purchaser, (ii) such sale or assignment occurs during the continuance of a Trigger Event under the Sale and Servicing Agreement or (iii) the Depositor or the Loan Originator breaches a representation or warranty contained in the Sale and Servicing Agreement. In addition, the Purchaser shall have the right to sell or finance the Purchased Note pursuant to a repurchase, financing or similar transaction without the consent of the Loan Originator.
SECTION 11.06 GOVERNING LAW; JURISDICTION. THIS NOTE PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS. EACH OF THE PARTIES TO THIS NOTE PURCHASE AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
SECTION 11.09 No Recourse - Purchaser and Depositor.
(a) The obligations of the Purchaser under this Note Purchase Agreement, or any other agreement, instrument, document or certificate executed and delivered by or issued by the
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Purchaser or any officer thereof are solely the partnership or corporate obligations of the Purchaser, as the case may be. No recourse shall be had for payment of any fee or other obligation or claim arising out of or relating to this Note Purchase Agreement or any other agreement, instrument, document or certificate executed and delivered or issued by the Purchaser or any officer thereof in connection therewith, against any stockholder, limited partner, employee, officer, director or incorporator of the Purchaser.
(b) The obligations of the Depositor under this Note Purchase Agreement, or any other agreement, instrument, document or certificate executed and delivered by or issued by the Depositor or any officer thereof are solely the limited liability company obligations of the Depositor. No recourse shall be had for payment of any fee or other obligation or claim arising out of or relating to this Note Purchase Agreement or any other agreement, instrument, document or certificate executed and delivered or issued by the Purchaser or any officer thereof in connection therewith, against any member, managing director, employee or officer of the Depositor.
(c) The Purchaser, by accepting the Purchased Notes, acknowledges that such Purchased Notes represent an obligation of the Issuer and do not represent an interest in or an obligation of the Loan Originator, the Servicer, the Depositor, the Administrator, the Owner Trustee, the Indenture Trustee or any Affiliate thereof and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement, the Purchased Notes or the Basic Documents.
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intended for the purpose for binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Note Purchase Agreement or any other related documents.
[SIGNATURE PAGE FOLLOWS]
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CAPITALSOURCE FUNDING II TRUST, | ||||
By: Wilmington Trust Company, not in its individual capacity | ||||
but solely as Owner Trustee | ||||
By: | ||||
Name: | ||||
Title: | ||||
CS FUNDING II DEPOSITOR LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
CAPITALSOURCE FINANCE LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
CITIGROUP GLOBAL MARKETS REALTY CORP. | ||||
By: | ||||
Name: | ||||
Title: |
Note Purchase Agreement
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Schedule I
Information for Notices
1. | if to the Issuer: |
CapitalSource Funding II Trust | |||
c/o Wilmington Trust Company | |||
Xxxxxx Square North | |||
0000 Xxxxx Xxxxxx Xxxxxx | |||
Xxxxxxxxxx, Xxxxxxxx 00000 | |||
Attention: Corporate Trust Administration |
with a copy to the Administrator: |
CapitalSource Finance LLC | |||
0000 Xxxxxxx Xxxxxx - 12th Floor | |||
Chevy Xxxxx, Xxxxxxxx 00000 | |||
Attention: Controller |
2. | if to the Depositor: |
CS Funding II Depositor LLC | |||
0000 Xxxxxxx Xxxxxx - 12th Floor | |||
Chevy Xxxxx, Xxxxxxxx 00000 | |||
Attention: Controller |
3. | if to CapitalSource: |
CapitalSource Finance LLC | |||
0000 Xxxxxxx Xxxxxx - 12th Floor | |||
Chevy Xxxxx, Xxxxxxxx 00000 | |||
Attention: Controller |
4. | if to the Purchaser: |
Citigroup Global Markets Realty Corp. | |||
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx | |||
Xxx Xxxx, Xxx Xxxx 00000 | |||
Attention: Asset-Backed Finance |
I-1