FIFTH AMENDED AND RESTATED THREE PARTY AGREEMENT RELATING TO LOCKBOX SERVICES AND CONTROL

Exhibit 10.40

FIFTH AMENDED AND RESTATED THREE PARTY

Dated as of June 30, 2005

      THIS FIFTH AMENDED AND RESTATED THREE PARTY AGREEMENT RELATING TO LOCKBOX SERVICES AND CONTROL (such agreement as amended, modified, waived, supplemented or restated from time to time, the “ Agreement ”) is entered into as of June 30, 2005, by and among:

     (1)  BANK OF AMERICA, N.A. , a national banking association, as the lockbox bank under this Agreement (in such capacity, the “ Bank ”) and under the Intercreditor Agreement (as defined below);

     (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 to the Intercreditor Agreement (as defined below) 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, in each of the following capacities: (i) as the originator under the Financing Documents (in such capacity, the “ Originator ”); (ii) as the original servicer under the Financing Documents (in such capacity, the “ Original Servicer ”); and (iii) as the original lockbox servicer under this Agreement and the Intercreditor Agreement (in such capacity, the “ Lockbox Servicer ”); and

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

     Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Intercreditor Agreement.

R E C I T A L S

      WHEREAS , the Company has granted to certain lenders or their nominees a security interest in the Lockbox Accounts (as defined below) and the Remittances (as defined in the Intercreditor Agreement) mailed to the United States Post Office addresses P.O. Box 409739, Atlanta, GA 30384-9739, P.O. Box 409761, Atlanta, GA 30384-9761 and P.O. Box 409780, Atlanta, GA 30384-9780 (each a “ Lockbox ” and, collectively, the “ Lockboxes ”; each such address is referred to herein as a “ Lockbox Address ” and, collectively as the “ Lockbox Addresses ”) processed therein and deposited to the Company’s accounts numbered

003930559738, 003938703751, 003939396662 and 003922575610 with the Bank (the “ Lockbox Accounts ”);

      WHEREAS , the parties hereto have entered into the 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 “ Intercreditor Agreement ”) with respect to liens that attach to, and the administration of, the Remittances in the Lockboxes and the Lockbox Accounts; and

      WHEREAS , the parties hereto are entering into this Agreement with the intent to, among other things, (i) amend, restate and supercede in its entirety the Fourth Amended and Restated Three Party Agreement Relating to Lockbox Services, dated as of November 25, 2003 (the “ Existing Agreement ”), (ii) provide for the disposition of the net proceeds of the Remittances deposited in the Lockboxes and the Lockbox Accounts, and (iii) provide the Financing Agents, including any subsequent Financing Agents with continued “control” (as such term is used in Section 9-104 of the Uniform Commercial Code as enacted in the State of New York (the “ UCC ”)), for the purpose of perfecting and continuing the perfection of such Financing Agents’ security interests in the Lockbox and the Lockbox Accounts under the UCC.

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

     1. The Bank is hereby authorized:

          (a) to perform the lockbox service set forth herein (the “ Lockbox Service ”) and to follow its usual operating procedures for the handling of any Check (as such term is defined in the UCC), in accordance with the Standard Terms and Conditions attached hereto as Exhibit A and incorporated herein, except as modified by this Agreement;

          (b) to charge the Lockbox Accounts for all returned Checks, service charges, and other fees and charges associated with the Lockbox Service and this Agreement; and

          (c) to follow its usual procedures in the event the Lockbox Addresses, the Lockbox Accounts or any Check should be or become the subject of any writ, levy, order or other similar judicial or regulatory order or process.

     2. (a) The Bank will comply with instructions originated by the Requisite Financing Agents (as defined in the Intercreditor Agreement) or an entity designated by them concerning the Lockboxes and the Lockbox Accounts without further consent by the Lockbox Servicer (including, without limitation, any instructions to pay over to the Financing Agents all available balances in the Lockboxes and the Lockbox Accounts from time to time). Unless and until a Notice (as defined below) is received by the Bank, the Bank may also comply with any instruction it receives from the Lockbox Servicer concerning the Lockboxes and the Lockbox Accounts without further consent by the Financing Agents (including, without limitation, making withdrawals from the Lockboxes and the Lockbox Accounts); provided , that , the Bank will not comply with any instructions to close any of the Lockboxes or any Lockbox Account without the prior written consent of each Financing Agent. Within a reasonable period of time not to exceed two (2) Business Days after the Bank’s receipt of written notice in the form of Attachment I (the

“ Notice ”), the Bank shall no longer comply with instructions from the Lockbox Servicer with respect to the Lockboxes and Lockbox Accounts, and within a reasonable period of time not to exceed five (5) Business Days shall transfer all collected and available balances in the Lockbox Accounts to the account specified in the written instructions in the Notice, provided, that such Notice shall only specify one account to which the Bank shall send all such funds. “Business Day” means each Monday through Friday, excluding bank holidays. Funds are not available if, in the reasonable determination of the Bank, they are subject to a hold, dispute or legal process preventing their withdrawal. Thereafter the Financing Agents shall have exclusive control of the Lockboxes and the Lockbox Accounts unless and until the Financing Agents provide the Bank with notice to the contrary in compliance with the notice requirements of Section 15 hereof. The Bank will not agree with any other person to comply with instructions concerning the Lockboxes and the Lockbox Accounts given by any person other than the Lockbox Servicer and/or the Requisite Financing Agents (or an entity appointed by them).

          (b) The Bank shall have no responsibility or liability to the Financing Agents with respect to the value of the Lockbox Accounts or any responsibility to limit, restrict or otherwise monitor the withdrawal of funds from the Lockbox Accounts by the Company or the Lockbox Servicer unless and until a Notice has been received by the Bank. This Agreement does not create any obligation or duty of the Bank other than those expressly set forth herein. The Bank may rely on notices and communications which do not conflict with the terms hereof that it reasonably believes are given by the appropriate party. The Bank shall not be obligated to make any inquiry as to the authority, capacity, existence or identity of any party purporting to give such notice or instructions including, without limitation, whether any group of Financing Agents comprise the Requisite Financing Agents (as represented in writing to the Bank) or the validity of the designation of the authority designated to any entity or designated by the Requisite Financing Agents or the Financing Agents pursuant to Section 23 or otherwise; provided that, notwithstanding the foregoing, as a condition to any action to be taken hereunder the Bank shall be entitled to require, at its sole option, a written certification with respect to any group’s authorization to cause it to take any such actions and the Bank shall be entitled to, and fully protected in its reliance on, any such certification.

     3. (a) If the balances in the Lockbox Accounts are not sufficient to pay the Bank for any returned Check and the Originator has not paid the amounts payable in respect of such returned Checks, each Financing Agent, as applicable, agrees to pay to the Bank on demand the portion of any amounts received by such Financing Agent with respect to such returned Check.

          (b) If the balances in the Lockbox Accounts are not sufficient to compensate the Bank for any fees or charges due the Bank in connection with the Lockbox Service or this Agreement, the Originator agrees to pay the Bank on demand the amount due the Bank. The Originator will have breached this Agreement if it has not paid the Bank, within five (5) Business Days after the demand, the amount due the Bank.

          (c) The Originator hereby authorizes the Bank, without prior notice, from time to time to debit any other account the Originator may have with the Bank for the amount or amounts due from the Originator under subsection 3(a) or 3(b) .

          (d) The Bank agrees it shall not have and shall not exercise any right of set-off against the Lockbox Accounts, except as permitted under Section 1(b) of this Agreement, until it has been advised in writing by each Financing Agent that all of the obligations owed to such Financing Agent (and persons represented by such Financing Agent) and secured by the Checks and the Lockbox Accounts are paid in full. The Financing Agents shall notify the Bank promptly in writing upon payment in full of all such obligations and this Agreement shall automatically terminate upon receipt of all such notices, provided , however , that Bank shall have no obligation to confirm that the parties representing themselves in writing to the Bank as all of the then existing Financing Agents, comprise all of the then existing Financing Agents.

     4. The Bank may terminate this Agreement upon thirty (30) days’ prior written notice to the Company, the Originator, the Lockbox Servicer and the Financing Agents and the transfer of all amounts on deposit in the Lockbox Accounts to the account designated in writing by the Requisite Financing Agents. The Financing Agents may terminate this Agreement upon thirty (30) days’ prior written notice to the Company and the Bank. Neither the Company nor the Lockbox Servicer may terminate this Agreement or the Lockbox Service except with (i) the written consent of each Financing Agent and (ii) upon thirty (30) days’ prior written notice to the Bank and the Financing Agents.

          (a) The Bank will not be liable to the Company, the Originator or the Financing Agents for any expense, claim, loss, damage or cost (the “ Damages ”) arising out of or relating to its performance under this Agreement other than those Damages which result directly from its acts or omissions constituting negligence or willful misconduct.

          (b) In no event will the Bank or any Financing Agent be liable for any special, indirect, exemplary or consequential damages, including but not limited to lost profits.

          (c) The Bank will be excused from failing to act or delay in acting, and no such failure or delay shall constitute a breach of this Agreement or otherwise give rise to any liability of the Bank, if (i) such failure or delay is caused by circumstances beyond the Bank’s reasonable control, including but not limited to legal constraint, emergency conditions, action or inaction of governmental, civil or military authority, fire, strike, lockout or other labor dispute, war, riot, theft, flood, earthquake or other natural disaster, breakdown of public or private or common carrier communications or transmission facilities, equipment failure, or act, negligence or default of the Company, the Originator or the Financing Agents or (ii) such failure or delay resulted from the Bank’s reasonable belief that the action would have violated any guideline, rule or regulation of any governmental authority.

     5. The Originator shall indemnify the Bank against, and hold it harmless from, any and all liabilities, claims, costs, expenses and damages of any nature (including but not limited to allocated costs of staff counsel, other reasonable attorney’s fees and any fees and expenses incurred in enforcing this Agreement) in any way arising out of or relating to disputes or legal actions concerning the Bank’s provision of the Lockbox Service, this Agreement, any Check or the Lockbox Addresses. This Section 5 does not apply to any cost or damage attributable to the gross negligence or intentional misconduct of the Bank. The Originator’s obligations under this Section 5 shall survive termination of this Agreement.

     6. (a) Each party hereto represents and warrants (each as to itself only) that: (i) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation; (ii) the performance of its obligations under this Agreement and the consummation of the transactions contemplated hereunder will not (A) constitute or result in a breach of its certificate or articles of incorporation, by-laws or partnership agreement, as applicable, or the provisions of any material contract to which it is a party or by which it is bound or (B) result in the violation of any law, regulation, judgment, decree or governmental order applicable to it; and (iii) all approvals and authorizations required to permit the execution, delivery, performance and consummation of this Agreement and the transactions contemplated hereunder have been obtained.

          (b) The Bank represents and warrants to the Company, the Originator, the Original Servicer, the Lockbox Servicer and the Financing Agents that: (i) the Lockbox Accounts are held with the Bank in the name of the Company; (ii) this Agreement constitutes its duly authorized, legal, valid, binding and enforceable obligation; (iii) the Bank has not agreed (and will not agree) with any party, other than the Company and the Financing Agents, to comply with instructions concerning the Lockbox Accounts; and (iv) the Requisite Financing Agents are entitled to control the Lockbox Accounts and to direct the Bank in the disposition of funds in the Lockbox Accounts, without further consent of the Company, as provided in this Agreement.

          (c) Each of the parties hereto (each as to itself only) agrees that it shall be deemed to make and renew each representation and warranty in subsections 6(a) and (b) , as applicable, on and as of each day on which it uses the Lockbox Service.

     7. The Company represents and warrants that it has not assigned or granted a security interest in the Lockbox Accounts or any funds now or hereafter deposited in the Lockbox Accounts, except as described in the Intercreditor Agreement.

     8. Each of the Company, the Originator, the Original Servicer, t