WAIVER, CONSENT AND AMENDMENT
NO. 15
TO SALE AND SERVICING AGREEMENT
This WAIVER,
CONSENT AND AMENDMENT NO. 15 TO SALE AND SERVICING AGREEMENT (this
“ Amendment ”), is dated as of February 10,
2009, among CapitalSource Funding III LLC, as seller (together with
its successors and assigns, in such capacity, the “
Seller ”), CapitalSource Finance LLC, as originator
(together with its successors and assigns, in such capacity, the
“ Originator ”) and as servicer (together with
its successors and assigns, in such capacity, the “
Servicer ”), Wachovia Bank, National Association, as a
purchaser (together with its successors and assigns, “
WBNA ”), Wachovia Capital Markets, LLC, as the
administrative agent (together with its successors and assigns, in
such capacity, the “ Administrative Agent ”) and
as the purchaser agent for WBNA (together with its successors and
assigns, in such capacity, “ WBNA Agent ”),
Wells Fargo Bank, National Association (“ Wells 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 ”) and Wachovia Bank, National Association, not
in its individual capacity but as the hedge counterparty (together
with its successors and assigns, in such capacity, the “
Hedge Counterparty ”). Capitalized terms used but not
defined herein have the meanings provided in the Sale and Servicing
Agreement (as defined below).
WHEREAS ,
the above-named parties (other than WBNA, as a purchaser) have
entered into the Sale and Servicing Agreement, dated as of
April 20, 2004 (such agreement as amended, modified,
supplemented, waived or restated from time to time, the “
Sale and Servicing Agreement ”); and
WHEREAS ,
pursuant to and in accordance with Section 13.1 of the
Sale and Servicing Agreement, the parties hereto desire to provide
for certain amendments to the Sale and Servicing Agreement as
provided for herein;
NOW,
THEREFORE , based upon the above Recitals, the mutual premises
and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
(a) The cover
of the Sale and Servicing Agreement is hereby amended by deleting
reference to the number “150,000,000” and replacing it
with the number “100,000,000”.
(b) The
definition of “Change-in-Control” in Section 1.1
of the Sale and Servicing Agreement is hereby amended and restated
in its entirety as follows:
“
Change-in-Control ”: Means (a) any Person or two
or more Persons acting in concert shall have acquired
“beneficial ownership,” directly or indirectly, of, or
shall have acquired by contract or otherwise, or shall have entered
into a contract or arrangement that, upon
consummation,
will result in its or their acquisition of, or control over, Voting
Stock of CapitalSource Inc. (or other securities convertible into
such Voting Stock) representing 33-1/3% or more of the combined
voting power of all Voting Stock of CapitalSource Inc.,
(b) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the assets
of CapitalSource Inc. and its Subsidiaries taken as a whole to any
“person” (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), (c) the failure of
CapitalSource Inc. to own (directly or through wholly owned
subsidiaries) 99.9% of the outstanding Voting Stock of
CapitalSource TRS LLC (f/k/a CapitalSource TRS Inc.) or any
Servicing Guarantor, (d) the failure of CapitalSource TRS LLC
(f/k/a CapitalSource TRS Inc.) to own (directly or through wholly
owned subsidiaries) 99.9% of the outstanding Voting Stock of the
Originator or any Servicing Guarantor, (e) the creation or
imposition of any Lien on any limited liability company membership
interests in the Seller; provided , however , that it
shall not be a Change-in-Control if a Lien on such limited
liability membership interests of the Seller shall be created or
imposed in favor of WBNA, as agent, or its successors, assigns or
subsequent transferees in such capacity, in connection with
(i) that certain Credit Agreement, dated as of March 14,
2006, by and among CapitalSource Inc., the guarantors listed
therein, the lenders listed therein, WBNA and Bank of America,
N.A., and all Credit Documents (as defined therein) thereunder,
(ii) that certain Pledge Agreement, dated as of
December 23, 2008, by and among CapitalSource Inc., its direct
and indirect subsidiaries listed therein, WBNA, the Collateral
Custodian and the Servicer, and (iii) that certain Security
Agreement, dated as of December 23, 2008, by and among
CapitalSource Inc., its direct and indirect subsidiaries listed
therein and WBNA or (f) the failure by the Originator to own
all of the limited liability company membership interests in the
Seller; provided , however , that it shall not be a
Change-in-Control if WBNA, or its successors, assigns or subsequent
transferees, shall own such limited liability membership interests
of the Seller. Notwithstanding the foregoing, solely for the
purpose of determining whether there has been a Change-in-Control
pursuant to clause (a) above, any purchase by one or more
Excluded Persons which increases any of such Excluded
Persons’ direct or indirect ownership interest (whether
individually or in the aggregate) in the Voting Stock of
CapitalSource Inc. shall not constitute a Change-in-Control even if
the amount of Voting Stock acquired or controlled by such Excluded
Person(s) exceeds (whether individually or in the aggregate)
33-1/3% of the combined voting power of all Voting Stock of the
Originator, any Servicing Guarantor or CapitalSource Inc., as
applicable; provided that for so long as any of such
Excluded Persons’ direct or indirect ownership interest in
the Voting Stock of the Originator, any Servicing Guarantor or
CapitalSource Inc. exceeds (individually or in the aggregate)
33-1/3% of the combined voting power of all Voting Stock of the
Originator, any Servicing Guarantor or CapitalSource Inc., as
applicable, the initiation by the Originator, any
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