FIRST AMENDMENT TO THE SALE AND SERVICING AGREEMENT
Exhibit 10.75
EXECUTION VERSION
FIRST AMENDMENT TO THE SALE AND SERVICING AGREEMENT
This First Amendment (this “Amendment”) to the Sale and Servicing Agreement referenced
below is entered into as of August 2, 2007, among CapitalSource Funding VII Trust, a Delaware
statutory trust (the “Issuer”), CS Funding VII Depositor LLC, a Delaware limited liability
company, as Depositor (in such capacity, the “Depositor”), CapitalSource Finance LLC, a
Delaware limited liability company (“CapitalSource”), as Loan Originator (in such capacity,
the “Loan Originator”) and as Servicer (in such capacity, the “Servicer”) and Xxxxx
Fargo Bank, National Association, a national banking association, as Indenture Trustee on behalf of
the Noteholders and as Paying Agent (in such capacities, the “Indenture Trustee”), as
Collateral Custodian (the “Collateral Custodian”) and as Backup Servicer (the “Backup
Servicer”).
R E C I T A L S:
WHEREAS, the Issuer, the Depositor, CapitalSource, the Loan Originator, the Servicer, the
Indenture Trustee, the Paying Agent, the Collateral Custodian and the Backup Servicer are parties
to the Sale and Servicing Agreement, dated as of April 19, 2007 (as amended, supplemented and
otherwise modified form time to time including by this Amendment, the “Sale and Servicing
Agreement”);
WHEREAS, the parties hereto desire to amend the Sale and Servicing Agreement pursuant to
Section 13.02(b) thereof as more specifically set forth below;
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to the Sale and Servicing Agreement. Upon the execution and
delivery of this Amendment by all parties hereto, the Sale and Servicing Agreement is hereby
amended as follows:
(a) Section 1.01 of the Sale and Servicing Agreement is hereby amended by amending and
restating the following definitions contained therein in their entirety:
LIBOR Margin: Has the meaning set forth in the Lender Fee Letter, dated August 2, 2007,
executed by the Initial Noteholder as acknowledged and agreed to by the Issuer, the Depositor and
CapitalSource.
Maturity Date: August 1, 2008.
Nonutilization Fee: A fee payable by the Issuer to the Initial Noteholder on each Payment
Date in an amount equal to (a) prior to September 1, 2007, 0.15% and from and after
September 1, 2007, 0.10% multiplied by (b) the excess, if any, of the Maximum Note Principal
Balance over the average daily amount of the Note Principal Balance for the immediately preceding
month divided by (c) 360 and multiplied by (d) the actual number of calendar days
that have elapsed since the immediately preceding Payment Date (or, with respect to the first Payment Date, the
Closing Date).
Note Purchase Agreement: The Note Purchase Agreement among the Issuer, the Depositor,
CapitalSource and the Initial Noteholder, dated as of April 19, 2007, as the same may be amended or
supplemented from time to time.
Purchase Price Percentage: Prior to September 1, 2007, 90% with respect to all Eligible Loans
and, from and after September 1, 2007, 85% with respect to all Eligible Loans.
Revolving Period: With respect to the Notes, the period commencing on the Closing Date and
ending on the date on which the Revolving Period is terminated pursuant to Section 2.08.
Section 2. Representations and Warranties. Each of the Issuer, the Depositor, the
Loan Originator and the Servicer hereby represents and warrants that (i) it has the power and is
duly authorized to execute and deliver this Amendment, (ii) this Amendment has been duly
authorized, executed and delivered, (iii) it is and will continue to be duly authorized to perform
its respective obligations under the Basic Documents and this Amendment, (iv) the execution,
delivery and performance by it of this Amendment shall not (1) result in the breach of, or
constitute (alone or with notice or with the lapse of time or both) a default under, any material
agreement or instrument to which it is a party, (2) violate (A) any provision of law, statute, rule
or regulation, or organizational documents or other constitutive documents, (B) any order of any
Governmental Authority or (C) any provision of any material indenture, agreement or other
instrument to which it is a party or by which it or any of its property is or may be bound, or (3)
result in the creation or imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by the Issuer other than pursuant to the Basic Documents, (v) this
Amendment and each of the Basic Documents to which it is a party or by which it or its assets may
be or is bound constitutes its legal, valid and binding obligations, enforceable against it
(subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and similar laws affecting creditors’ rights generally and to general principles of
equity), (vi) except as publicly disclosed, there are no actions, suits, investigations (civil or
criminal) or proceedings at law or in equity or by or before any Governmental Authority pending or,
to its knowledge, threatened against or affecting it or any of its business, property or rights (1)
which involve any Basic Document or (2) which would be materially likely to result in a material
adverse effect on its business, assets, operations or financial condition, (vii) it is not in
default or violation with respect to any law, rule or regulation, judgment, writ, injunction or
decree order of any court, governmental authority, regulatory agency or arbitration board or
tribunal, the effect of which would have a material adverse effect on its business, assets,
operations or financial condition and (viii) no Default or Event of Default has occurred or is
continuing. Except as expressly amended by the terms of this Amendment, all terms and conditions
of the Sale and Servicing Agreement shall remain in full force and effect and are hereby ratified
in all respects. Neither the Majority Noteholders nor the Certificateholder object to the
execution of this Amendment by Wilmington Trust Company or the Issuer.
Section 3. No Reliance. Each of the Issuer, the Depositor, the Loan Originator and
the Servicer hereby acknowledges that it has not relied on the Majority Noteholders, the Hedge
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Counterparty or the Certificateholder or any of their respective officers, directors, employees,
agents and “control persons” as such term is used under the Act and under the Securities Exchange
Act of 1934, as amended, for any tax, accounting, legal or other professional advice in connection
with the transactions contemplated by this Amendment or the Basic Documents, that each of the
Issuer, the Depositor, the Loan Originator and the Servicer has retained and been advised by such
tax, accounting, legal and other professionals as it has deemed necessary in connection with the
transactions contemplated by this Amendment and the Basic Documents and that each of the Majority
Noteholders, the Hedge Counterparty and the Certificateholder makes no representation or warranty,
and shall have no liability with respect to, the tax, accounting or legal treatment or implications
relating to the transactions contemplated by this Amendment and the Basic Documents.
Section 4. Defined Terms; Headings. All capitalized terms used herein, unless
otherwise defined herein, have the same meanings provided herein or in the Sale and Servicing
Agreement. The headings of the various Sections of this Amendment have been inserted for
convenience of reference only and shall not be deemed to be part of this Amendment.
Section 5. Limited Amendment. This Amendment is limited precisely as written and
shall not be deemed to (a) be a consent to a waiver or any other term or condition of the Sale and
Servicing Agreement, the other Basic Documents or any of the documents referred to therein or
executed in connection therewith or (b) prejudice any right or rights the Majority Noteholders or
the Hedge Counterparty may now have or may have in the future under or in connection with the Sale
and Servicing Agreement, the other Basic Documents or any documents referred to therein or executed
in connection therewith. Whenever the Sale and Servicing Agreement is referred to in the Sale and
Servicing Agreement or any of the instruments, agreements or other documents or papers executed and
delivered in connection therewith, it shall be deemed to mean the Sale and Servicing Agreement, as
the case may be, as modified by this Amendment. Except as hereby amended, no other term, condition
or provision of the Sale and Servicing Agreement shall be deemed modified or amended, and this
Amendment shall not be considered a novation.
Section 6. Construction; Severability. This Amendment is a document executed pursuant
to the Sale and Servicing Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered or applied in accordance with the terms and provisions thereof. If any one
or more of the covenants, agreements, provisions or terms of this Amendment shall be held invalid
in a jurisdiction for any reason whatsoever, then, in such jurisdiction, such covenants,
agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Amendment and shall in no way affect the validity or enforceability of
the other covenants, agreements, provisions or terms of this Amendment.
Section 7. Counterparts; Facsimile Signature. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement. The parties may execute facsimile
copies of this Amendment and the facsimile signature of any such party shall be deemed an original
and fully binding on said party.
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Section 8. Governing Law. This Amendment shall be governed and construed in
accordance with the applicable terms and provisions of Section 13.05 (Governing Law) of the Sale
and Servicing Agreement, which terms and provisions are incorporated herein by reference.
Section 9. Instructions to Owner Trustee; Limitation on Liability. The
Depositor hereby instructs the Owner Trustee, pursuant to Section 6.3 of the Trust Agreement, to
execute and deliver this Amendment. It is expressly understood and agreed by the parties hereto
that (a) this Amendment is executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee of CapitalSource Funding VII Trust, in the exercise of the
powers and authority conferred and vested in it, (b) each of the representations, undertakings and
agreements herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is made and 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
Amendment or any other related documents.
Section 10. Recordation of Amendment. To the extent permitted by applicable law, this
Amendment, or a memorandum thereof if permitted under applicable law, is subject to recordation in
all appropriate public offices for real property records in all of the counties or other comparable
jurisdictions and in any other appropriate public recording office or elsewhere, such recordation
to be effected by the Servicer at the Securityholders’ expense on direction of the Majority
Noteholders but only when accompanied by an Opinion of Counsel to the effect that such recordation
materially and beneficially affects the interests of the Securityholders or is necessary for the
administration or servicing of the Loans.
Section 11. Successor and Assigns. This Amendment shall be governed by, subject to
and construed in accordance with the applicable terms and provisions of Section 13.10 (Successor
and Assigns) of the Sale and Servicing Agreement, which terms and provisions are incorporated
herein by reference.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to the Sale and
Servicing Agreement to be duly executed by their respective authorized officers as of the day and
year first written above.
| CAPITALSOURCE FUNDING VII TRUST, |
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| By: | Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee | |||
| By: | /s/ XXX X. XXXXXXX | |||
| Name: | Xxx X. Xxxxxxx | |||
| Title: | Financial Services Officer | |||
| CS FUNDING VII DEPOSITOR LLC, as Depositor |
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| By: | /s/ XXXXXXX XXXXXX | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CAPITALSOURCE FINANCE LLC, as Loan Originator and Servicer |
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| By: | /s/ XXXXXXX XXXXXX | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee, Collateral Custodian and Backup Servicer |
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| By: | /s/ XXX XXXXX | |||
| Name: | Xxx Xxxxx | |||
| Title: | V.P. | |||
[Signature Pages to First Amendment to Sale and Servicing Agreement]
| ACKNOWLEDGED AND AGREED: CITIGROUP GLOBAL MARKETS REALTY CORP. |
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| By: | /s/ XXXXXX X. XXXXX | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| CAPITALSOURCE FINANCE LLC, as sole Certificateholder |
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| By: | /s/ XXXXXXX XXXXXX | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
[Signature Pages to First Amendment to Sale and Servicing Agreement]
