Exhibit 10.74
EXECUTION VERSION
FIRST AMENDMENT TO THE NOTE PURCHASE AGREEMENT
This First Amendment (this “
Amendment ”) to the Note Purchase 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 (the “
Depositor ”), CapitalSource Finance LLC, a Delaware
limited liability company (“ CapitalSource, ”
and in its capacity as Loan Originator, the “ Loan
Originator ”) and Citigroup Global Markets Realty Corp.
(“ Citigroup ,” and in its capacity as Purchaser
hereunder, the “ Purchaser ”).
R E C I T A L
S :
WHEREAS, the Issuer, the Depositor,
the Loan Originator and the Purchaser are parties to the Note
Purchase Agreement, dated as of April 19, 2007 (as amended,
supplemented and otherwise modified form time to time including by
this Amendment, the “ Note Purchase Agreement
”);
WHEREAS, the parties hereto desire to
amend the Note Purchase Agreement pursuant to Section 11.01 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
Note Purchase Agreement . Upon the execution and delivery of
this Amendment and satisfaction of the conditions precedent set
forth herein, the definition of “Maximum Note Principal
Balance” in Section 1.01 of the Note Purchase Agreement
is hereby amended and restated in its entirety as follows:
“
Maximum Note Principal Balance ” means an amount equal
to One Billion Five Hundred Million Dollars ($1,500,000,000).
Section 2. Conditions
Precedent . The effectiveness of this Amendment shall be
subject to satisfaction (or waiver by the Purchaser) of the
following conditions precedent:
(a)
Execution and Delivery of this Amendment . Each of the
parties hereto shall have executed and delivered this
Amendment.
(b)
No Default or Event of Default . No Default or Event of
Default shall have occurred or be continuing.
Section 3. Restructuring of
the CSVII Financing Facility . A Termination Date shall be
deemed to occur under the Basic Documents if the parties to the
Basic Documents shall not have entered into an amendment in form
and substance satisfactory to the Initial Noteholder on or before
October 15, 2007 to substantially conform the concentration
limitations, covenants, representations and warranties set forth in
the Basic Documents to the concentration limitations, covenants,
representations and warranties set forth in the CSII Financing
Facility. “CSII
Financing Facility” means the facility under which notes are
issued pursuant to the Indenture, dated as of September 17,
2003 between CapitalSource Funding II Trust, as issuer, and Wells
Fargo Bank Minnesota, National Association, as indenture trustee,
and such notes are purchased by Citigroup Global Markets Realty
Corp. pursuant to the Amended and Restated Note Purchase Agreement,
dated as of September 17, 2003 and amended and restated as of
October 7, 2004, among CapitalSource Funding II Trust, as
issuer, CS Funding II Depositor LLC, as depositor, CapitalSource
and Citigroup Global Markets Realty Corp.
Section 4. No Reliance .
Each of the Issuer, the Depositor and the Loan Originator hereby
acknowledges that it has not relied on the Purchaser or any of its
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,
