EXHIBIT 10.7.2
EXECUTION VERSION
AMENDMENT NO. 2 TO
THIRD AMENDED AND RESTATED LOAN
CERTIFICATE AND SERVICING AGREEMENT
THIS AMENDMENT NO. 2 TO THIRD AMENDED AND RESTATED LOAN CERTIFICATE AND
SERVICING AGREEMENT, dated as of April 22, 2003 (this "Amendment"), is entered
into by and among
(1) CAPITALSOURCE FUNDING LLC, a Delaware limited liability
company, as the seller (together with its successors and assigns in such
capacity, the "Seller");
(2) CAPITALSOURCE FINANCE LLC, a Delaware limited liability
company ("CapitalSource Finance"), 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");
(3) VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation
(together with its successors and assigns, "VFCC"), as a purchaser (together
with its successors and assigns in such capacity, a "Purchaser");
(4) FAIRWAY FINANCE CORPORATION, a Delaware corporation (together
with its successors and assigns, "Fairway"), as a purchaser (together with its
successors and assigns in such capacity, a "Purchaser");
(5) EIFFEL FUNDING, LLC, a Delaware limited liability company
(together with its successors and assigns, "Eiffel"), as a purchaser (together
with its successors and assigns in such capacity, a "Purchaser");
(6) HANNOVER FUNDING COMPANY LLC, a Delaware limited liability
company (together with its successors and assigns, "Hannover"), as a purchaser
(together with its successors and assigns in such capacity, a "Purchaser");
(7) WACHOVIA SECURITIES, INC. (f/k/a First Union Securities,
Inc.), a Delaware corporation (together with its successors and assigns, "WSI"),
as the agent for VFCC (together with its successors and assigns in such
capacity, the "VFCC Agent") and as the agent for the VFCC Agent, the Eiffel
Agent, the Fairway Agent and the Hannover Agent (together with its successors
and assigns in such capacity, the "Administrative Agent");
(8) BMO XXXXXXX XXXXX CORP., a Delaware corporation (together with
its successors and assigns, "BMO Xxxxxxx Xxxxx"), as the agent for Fairway
(together with its successors and assigns in such capacity, the "Fairway
Agent");
(9) CDC FINANCIAL PRODUCTS INC., a Delaware corporation (together
with its successors and assigns, "CDC"), as the agent for Eiffel (together with
its successors and assigns in such capacity, the "Eiffel Agent");
(10) NORDDEUTSCHE LANDESBANK GIROZENTRALE, a bank organized under
the laws of Germany (together with its successors and assigns, "Xxxx XX"), as
the agent for Eiffel (together with its successors and assigns in such capacity,
the "Hannover Agent"); and
(11) XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION ("Xxxxx
Fargo"), not in its individual capacity but as the backup servicer (together
with its successors and assigns in such capacity, the "Backup Servicer"), and
not in its individual capacity but as the collateral custodian (together with
its successors and assigns in such capacity, the "Collateral Custodian").
Capitalized terms used but not defined herein are used as defined in
the Agreement (defined below).
WHEREAS, the parties hereto entered into that certain Third Amended and
Restated Loan Certificate and Servicing Agreement, dated as of February 25,
2003, as amended by Amendment No. 1 to Third Amended and Restated Loan
Certificate and Servicing Agreement, dated as of April 3, 2003 (as further
amended, supplemented, modified or restated from time to time, the "Agreement");
WHEREAS, the parties hereto desire to amend the Agreement as provided
herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) The definition of "Facility Amount" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety as follows:
Facility Amount: $700,000,000, as such amount may vary from time to
time upon the written agreement of the parties hereto; provided, that,
such amount may not at any time exceed the aggregate Commitments then
in effect; provided, further, that, on or after the Termination Date,
the Facility Amount shall mean the Advances Outstanding.
(b) Section 2.1(a) of the Agreement is hereby amended and restated
in its entirety as follows:
"(a) On the terms and conditions hereinafter set forth, on
the Closing Date, the Seller shall deliver to each of the Purchaser
Agents, at the applicable address set forth on the signature pages of
this Agreement, duly executed variable funding certificates (each a
"Variable Funding Certificate" or "VFC"), in substantially the form of
Exhibits X-0, X-0, X-0 and B-4, dated as of the date of this Agreement,
in an aggregate face amount equal to the Facility Amount, and otherwise
duly completed. Each Variable Funding Certificate shall evidence an
undivided ownership interest in the Assets purchased by each applicable
Purchaser in an amount equal, at any time, to the percentage equivalent
of a fraction (i) the numerator of which is the Advances outstanding
under the applicable VFC on such day, and (ii) the denominator of which
is the total aggregate Advances Outstanding on such day. Interest shall
accrue, and each VFC shall be payable, as
2
described herein. The VFC purchased by (1) VFCC shall be in the name
of "Wachovia Securities, Inc., as the VFCC Agent" and shall be in the
face amount equal to $350,000,000, (2) Fairway shall be in the name of
"BMO Xxxxxxx Xxxxx Corp., as the Fairway Agent" and shall be in the
face amount equal to $150,000,000, (iii) Eiffel shall be in the name
of "Xxxx & Co., as nominee for Deutsche Bank Trust Company Americas,
Collateral Trustee for Eiffel Funding, LLC" and shall be in the face
amount equal to $125,000,000, and (iv) Hannover shall be in the name
of "Norddeutsche Landesbank Girozentrale, as the Hannover Agent" and
shall be in the face amount equal to $75,000,000."
(c) Exhibit B-1 to the Agreement is hereby amended and replaced in
its entirety by Exhibit B-1 attached to this Amendment.
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, the Agreement shall remain in
full force and effect. All references to the Agreement shall be deemed to mean
the Agreement as modified hereby. This Amendment shall not constitute a novation
of the Agreement, but shall constitute an amendment thereof. The parties hereto
agree to be bound by the terms and conditions of the Agreement as amended by
this Amendment, as though such terms and conditions were set forth herein.
SECTION 3. CONDITIONS PRECEDENT.
This Amendment shall not be effective until having been duly executed
by, and delivered to, the parties hereto.
SECTION 4. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts,
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.
(b) 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.
(c) This Amendment may not be amended or otherwise modified except
as provided in the Agreement.
(d) The failure or unenforceability of any provision hereof shall
not affect the other provisions of this Amendment.
(e) 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.
3
(f) This Amendment represents the final agreement between the
parties 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.
(g) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AND EACH HEDGE COUNTERPARTY HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF
ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES
HERETO AND EACH SECURED PARTY 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.
(h) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
HERETO AND EACH HEDGE COUNTERPARTY HEREBY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SELLER: CAPITALSOURCE FUNDING LLC
By: /s/ Xxxxx X. Xxxxxxx
______________________
Name: Xxxxx X. Xxxxxxx
____________________
Title: Controller
____________________
CapitalSource Funding LLC
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Controller
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE ORIGINATOR CAPITALSOURCE FINANCE LLC
AND SERVICER:
By: /s/ Xxxxx X. Xxxxxxx
______________________
Name: Xxxxx X. Xxxxxxx
____________________
Title: Controller
___________________
CapitalSource Finance LLC
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Controller
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
VFCC: VARIABLE FUNDING CAPITAL
CORPORATION
Commitment:
$350,000,000 By: Wachovia Securities, Inc., as
attorney-in-fact
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
_______________________________________
Name: Xxxxxxx X. Xxxxxx, Xx.
_____________________________________
Title: Vice President
____________________________________
Variable Funding Capital Corporation
c/o Wachovia Securities, Inc.
One Wachovia Center, Mail Code: NC0610
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
With respect to notices required pursuant to Section 13.2, a copy of notices
sent to VFCC shall be sent to:
Lord Securities Corp.
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE ADMINISTRATIVE AGENT AND WACHOVIA SECURITIES, INC.
THE VFCC AGENT: f/k/a First Union Securities, Inc.
By: /s/ Xxxx X. Xxxxxxxx
_______________________________________
Name: Xxxx X. Xxxxxxxx
_____________________________________
Title: Vice President
____________________________________
Wachovia Securities, Inc.
One Wachovia Center, Mail Code: NC0610
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
EIFFEL: EIFFEL FUNDING, LLC
Commitment: By: Global Securitization Services, LLC,
$125,000,000 its manager
By: /s/ Xxxxxx X. Xxxxx
_______________________
Name: Xxxxxx X. Xxxxx
_____________________
Title: President
_____________________
Eiffel Funding, LLC
c/o Global Securitization Services, LLC
Xxxxx 000
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
EIFFEL AGENT: CDC FINANCIAL PRODUCTS INC.
By: /s/ Xxxx Xxxxxxxx
_______________________
Name: Xxxx Xxxxxxxx
_____________________
Title: Director
_____________________
By: /s/
Name:_____________________________________
Title:____________________________________
CDC Financial Products Inc.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
FAIRWAY: FAIRWAY FINANCE CORPORATION
Commitment:
$150,000,000
By: /s/ Xxxx X. Xxxxxx
_______________________________________
Name: Xxxx X. Xxxxxx
_____________________________________
Title: Vice President
____________________________________
Fairway Finance Corporation
c/o Lord Securities Corporation
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
FAIRWAY AGENT: BMO XXXXXXX XXXXX CORP.
By: /s/ Xxxxx X. Xxxxxx
_______________________________________
Name: Xxxxx X. Xxxxxx
_____________________________________
Title: Managing Director
____________________________________
By: /s/ Xxxxxxx X. Xxxxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxxxx
_____________________________________
Title: Executive Managing Director
____________________________________
BMO Xxxxxxx Xxxxx Corp.
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
HANNOVER: HANNOVER FUNDING COMPANY LLC
Commitment:
$75,000,000
By: /s/ Xxxxxx Xxxxxx
______________________________________
Xxxxxx Xxxxxx, Vice-President
Hannover Funding Company LLC
c/o Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Vice-President
Facsimile No.: ___________________________
Confirmation No.: (000) 000-0000
HANNOVER AGENT: NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ Omar Xxxx Xxxxx
______________________________________
Omar Xxxx Xxxxx, Senior Vice-President
By: /s/ Xxxxxx X. Xxxxx
______________________________________
Xxxxxx X. Xxxxx, Vice-President
Norddeutsche Landesbank Girozentrale
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Omar Xxxx Xxxxx, Vice-President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
THE BACKUP SERVICER: XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Backup
Servicer
By: /s/ Xxxxxxx Xxxxx
___________________________________
Name: Xxxxxxx Xxxxx
_________________________________
Title: Assistant Vice President
_________________________________
Xxxxx Fargo Bank Minnesota, National
Association
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE COLLATERAL CUSTODIAN: XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Collateral Custodian
By: /s/ Xxxxxxx Xxxxx
___________________________________
Name: Xxxxxxx Xxxxx
_________________________________
Title: Assistant Vice President
_________________________________
Xxxxx Fargo Bank Minnesota, National
Association
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
Acknowledged and Agreed to
as of the date first written above.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Hedge Counterparty
By: /s/ Xxxx X. Xxxxxxx
_______________________________________
Name: Xxxx X. Xxxxxxx
_____________________________________
Title: Senior Vice President
____________________________________
Wachovia Bank, National Association
Xxx Xxxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Senior Vice President,
Risk Management
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
NOMURA CREDIT & CAPITAL, INC.,
as the Participant
By: /s/ N. Xxxxx XxXxxxx
____________________________
Name: N. Xxxxx XxXxxxx
___________________________
Title: Authorized Agent
_________________________
Nomura Credit & Capital, Inc.
2 World Financial Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Finance Group
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
NOMURA HOLDING AMERICA INC.,
as the Guarantor
By: /s/ Xxxxxx Xxxxxxx
______________________________
Name: Xxxxxx Xxxxxxx
____________________________
Title: Chief Financial Officer
___________________________
Nomura Holding America Inc.
2 World Financial Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Finance Group
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
EXHIBIT B-1
To Amendment No. 2 to
Third Amended and
Restated Loan
Certificate and
Servicing Agreement
FORM OF VARIABLE FUNDING CERTIFICATE
(VFCC)
$350,000,000 April 22, 2003
THIS VARIABLE FUNDING CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). NEITHER THIS VARIABLE FUNDING
CERTIFICATE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE
WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS VARIABLE FUNDING CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE THIRD AMENDED AND RESTATED LOAN CERTIFICATE AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR VALUE RECEIVED, CAPITALSOURCE FUNDING LLC, a Delaware limited
liability company (the "Seller"), promises to pay to Wachovia Securities, Inc.
(formerly known as First Union Securities, Inc.) ("WSI"), as the VFCC agent (the
"VFCC Agent"), or its or Variable Funding Capital Corporation's ("VFCC")
assigns, the principal sum of THREE HUNDRED FIFTY MILLION DOLLARS
($350,000,000), or, if less, the unpaid principal amount of the aggregate
advances ("Advances") made by VFCC to the Seller pursuant to the Third Amended
and Restated Loan Certificate and Servicing Agreement (as defined below), as set
forth on the attached Schedule, on the dates specified in the Third Amended and
Restated Loan Certificate and Servicing Agreement, and to pay interest on the
unpaid principal amount of each Advance on each day that such unpaid principal
amount is outstanding, at the Interest Rate related to such Advance as provided
in the Third Amended and Restated Loan Certificate and Servicing Agreement, on
each Payment Date and each other date specified in the Third Amended and
Restated Loan Certificate and Servicing Agreement.
This Variable Funding Certificate (the "Certificate") is issued
pursuant to the Third Amended and Restated Loan Certificate and Servicing
Agreement, dated as of February 25, 2003 (the "Third Amended and Restated Loan
Certificate and Servicing Agreement"), by and among the Seller, as the seller,
CapitalSource Finance LLC, as the originator and as the servicer, VFCC, Fairway
Finance Corporation, Eiffel Funding, LLC and Hannover Funding Company LLC , as
the purchasers, WSI, as the administrative agent, the VFCC Agent, BMO Xxxxxxx
Xxxxx Corp., as
B-1-1
the Fairway agent, CDC Financial Products, Inc., as the Eiffel agent,
Norddeutsche Landesbank Girozentrale, as the Hannover agent, and Xxxxx Fargo
Bank Minnesota, National Association, as the backup servicer and as the
collateral custodian, as amended by Amendment No. 1 to Third Amended and
Restated Loan Certificate and Servicing Agreement, dated as of March 3, 2003,
and by Amendment No. 2 to Third Amended and Restated Loan Certificate and
Servicing Agreement, dated as of April 22, 2003. Capitalized terms used but not
defined in this Certificate are used with the meanings ascribed to them in the
Third Amended and Restated Loan Certificate and Servicing Agreement, as amended.
Notwithstanding any other provisions contained in this Certificate, if
at any time the rate of interest payable by the Seller under this Certificate,
when combined with any and all other charges provided for in this Certificate,
in the Third Amended and Restated Loan Certificate and Servicing Agreement or in
any other document (to the extent such other charges would constitute interest
for the purpose of any applicable law limiting interest that may be charged on
this Certificate), exceeds the highest rate of interest permissible under
applicable law (the "Maximum Lawful Rate"), then so long as the Maximum Lawful
Rate would be exceeded the rate of interest under this Certificate shall be
equal to the Maximum Lawful Rate. If at any time thereafter the rate of interest
payable under this Certificate is less than the Maximum Lawful Rate, the Seller
shall continue to pay interest under this Certificate at the Maximum Lawful Rate
until such time as the total interest paid by the Seller is equal to the total
interest that would have been paid had applicable law not limited the interest
rate payable under this Certificate. In no event shall the total interest
received by VFCC under this Certificate exceed the amount which VFCC could
lawfully have received had the interest due under this Certificate been
calculated since the date of this Certificate at the Maximum Lawful Rate.
Payments of the principal of, and interest on, Advances represented by
this Certificate shall be made by or on behalf of the Seller to the holder
hereof by wire transfer of immediately available funds in the manner and at the
address specified for such purpose as provided in the Third Amended and Restated
Loan Certificate and Servicing Agreement, or in such manner or at such other
address as the holder of this Certificate shall have specified in writing to the
Seller for such purpose, without the presentation or surrender of this
Certificate or the making of any notation on this Certificate.
If any payment under this Certificate falls due on a day that is not a
Business Day, then such due date shall be extended to the next succeeding
Business Day and interest shall be payable on any principal so extended at the
applicable Interest Rate.
If all or a portion of (i) the principal amount hereof or (ii) any
interest payable thereon or (iii) any other amounts payable hereunder shall not
be paid when due (whether at maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum that is equal to the Base
Rate plus 2%, in each case from the date of such non-payment to (but excluding)
the date such amount is paid in full.
Portions or all of the principal amount of the Certificate shall become
due and payable at the time or times set forth in the Third Amended and Restated
Loan Certificate and Servicing Agreement. Any portion or all of the principal
amount of this Certificate may be prepaid, together with interest thereon (and,
as set forth in the Third Amended and Restated Loan
B-1-2
Certificate and Servicing Agreement, certain costs and expenses of VFCC) at the
time and in the manner set forth in, but subject to the provisions of, the
Third Amended and Restated Loan Certificate and Servicing Agreement.
Except as provided in the Third Amended and Restated Loan Certificate
and Servicing Agreement, the Seller expressly waives presentment, demand,
diligence, protest and all notices of any kind whatsoever with respect to this
Certificate.
All amounts evidenced by this Certificate, VFCC's Advances and all
payments and prepayments of the principal hereof and the respective dates and
maturity dates thereof shall be endorsed by the VFCC Agent, on the schedule
attached hereto and made a part hereof or on a continuation thereof, which shall
be attached hereto and made a part hereof; provided, however, that the failure
of the VFCC Agent to make such a notation shall not in any way limit or
otherwise affect the obligations of the Seller under this Certificate as
provided in the Third Amended and Restated Loan Certificate and Servicing
Agreement.
The holder hereof may sell, assign, transfer, negotiate, grant
participations in or otherwise dispose of all or any portion of any Advances
made by VFCC and represented by this Certificate and the indebtedness evidenced
by this Certificate.
This Certificate is secured by the security interests granted pursuant
to Section 9.1 of the Third Amended and Restated Loan Certificate and Servicing
Agreement. The holder of this Certificate is entitled to the benefits of the
Third Amended and Restated Loan Certificate and Servicing Agreement and may
enforce the agreements of the Seller contained in the Third Amended and Restated
Loan Certificate and Servicing Agreement and exercise the remedies provided for
by, or otherwise available in respect of, the Third Amended and Restated Loan
Certificate and Servicing Agreement, all in accordance with, and subject to the
restrictions contained in, the terms of the Third Amended and Restated Loan
Certificate and Servicing Agreement. If a Termination Event shall occur, the
unpaid balance of the principal of all Advances, together with accrued interest
thereon, shall be declared, and become, due and payable in the manner and with
the effect provided in the Third Amended and Restated Loan Certificate and
Servicing Agreement.
The Seller, the Originator, the Servicer, the Purchasers, the
Collateral Custodian and the Backup Servicer each intend, for federal, state and
local income and franchise tax purposes only, that the Certificate be evidence
of indebtedness of the Seller secured by the Assets. VFCC, as a Purchaser under
the Third Amended and Restated Loan Certificate and Servicing Agreement, by the
acceptance hereof, agrees to treat the Certificate for federal, state and local
income and franchise tax purposes as indebtedness of the Seller.
This Certificate is one of the "Variable Funding Certificates" referred
to in Section 2.1 of the Third Amended and Restated Loan Certificate and
Servicing Agreement and represents a fractional undivided ownership interest in
the Assets to the extent provided in the Third Amended and Restated Loan
Certificate and Servicing Agreement. This Certificate shall be construed in
accordance with and governed by the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
B-1-3
IN WITNESS WHEREOF, the undersigned has executed this Certificate as on
the date first written above.
CAPITALSOURCE FUNDING LLC
By:_______________________________________
Name:_____________________________________
Title:____________________________________
B-1-4
Schedule attached to Variable Funding Certificate dated April 22, 2003 of
CapitalSource Funding LLC, payable to the order of Wachovia Securities, Inc., as
agent for Variable Funding Capital Corporation
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Date of Principal Principal Outstanding
Advance or Amount of Amount of Principal
Repayment Advance Repayment Amount
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