WAIVER, CONSENT AND AMENDMENT NO. 6 TO AMENDED AND RESTATED SALE AND SERVICING AGREEMENT
Exhibit
10.15.1
WAIVER, CONSENT AND AMENDMENT NO. 6
TO AMENDED AND RESTATED SALE AND SERVICING AGREEMENT
TO AMENDED AND RESTATED SALE AND SERVICING AGREEMENT
This WAIVER, CONSENT AND AMENDMENT NO. 6 TO AMENDED AND RESTATED SALE AND SERVICING AGREEMENT
(this “Amendment”), is dated as of February 17, 2009, among CSE QRS FUNDING I LLC, as
seller (together with its successors and assigns, in such capacity, the “Seller”), CSE
Mortgage 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”), Fairway Finance Company, LLC, as a purchaser (together
with its successors and assigns, “Fairway”), JPMorgan Chase Bank, National Association, as
a purchaser (together with its successors and assigns, “JPMorgan”), Three Pillars Funding
LLC, as a purchaser (together with its successors and assigns, “Three Pillars”), Scaldis
Capital Limited, as an additional purchaser (together with its successors and assigns,
“Scaldis”), 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”),
BMO Capital Markets Corp. (f/k/a Xxxxxx Xxxxxxx Corp.), as the purchaser agent for Fairway
(together with its successors and assigns, in such capacity, the “Fairway Agent”), JPMorgan
Chase Bank, National Association, as the purchaser agent for JPMorgan (together with its successors
and assigns, in such capacity, the “JPMorgan Agent”), SunTrust Xxxxxxxx Xxxxxxxx, Inc., as
the purchaser agent for Three Pillars (together with its successors and assigns, in such capacity,
the “Three Pillars Agent”), Fortis Bank S.A./N.V., as the additional agent for Scaldis
(together with its successors and assigns, in such capacity, “Scaldis Agent”), Xxxxx Fargo
Bank, 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”) 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).
RECITALS
WHEREAS, the above-named parties (other than JPMorgan and WBNA, as purchasers) together with
Symphony No. 4, LLC (“Symphony”), as a purchaser, and Dresdner Bank AG, New York Branch
(“Dresdner Bank”), as a purchaser agent, have entered into the Amended and Restated Sale
and Servicing Agreement, dated as of April 28, 2006 (such agreement as amended, modified,
supplemented, waived or restated from time to time, the “Sale and Servicing Agreement”);
WHEREAS, Symphony and Dresdner Bank are no longer parties to 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:
SECTION 1. AMENDMENTS.
(a) 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”: Any of the following:
(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 the Originator or any Servicing Guarantor;
(d) 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 CapitalSource Finance LLC, 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;
(e) 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; or
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(f) CapitalSource Finance LLC and/or CapitalSource Bank shall fail to be the sub-servicer.
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 Servicing Guarantor or CapitalSource Inc. of any action intended
to terminate or having the effect of terminating the registration of its securities under Section
12(g) of the Exchange Act or intended to suspend or having the effect of suspending its obligation
to file reports with the U.S. Securities and Exchange Commission under Sections 13 and 15(d) of the
Exchange Act, shall constitute a Change-in-Control. “Excluded Person” shall mean each of Xxxx
Xxxxxxx, Farallon Capital Management, LLC, and Madison Dearborn Partners, LLC and their respective
Affiliates. As used herein, “beneficial ownership” shall have the meaning provided in Rule 13d-3
of the Securities and Exchange Commission under the Exchange Act.”
(b) The definition of “Credit Party” in Section 1.1 of the Sale and Servicing Agreement is
hereby amended by deleting reference to the company “CapitalSource TRS Inc.” and replacing it with
the company “CapitalSource TRS LLC (f/k/a CapitalSource TRS Inc.)”.
(c) The definition of “Facility Amount” in Section 1.1 of the Sale and Servicing Agreement is
hereby amended by deleting reference to the number “2,000,000,000” and replacing it with the number
“250,000,000”.
(d) The definition of “Minimum Pool Yield” in Section 1.1 of the Sale and Servicing Agreement
is hereby amended by deleting reference to the percentage “2.00%” and replacing it with the
percentage “1.00%”.
(e) Section 2.1(a) of the Sale and Servicing Agreement is hereby amended by deleting reference
to the number “326,000,000” in clause (1)(A) thereof and replacing it with the number
“100,000,000”.
(f) Section 2.1(a) of the Sale and Servicing Agreement is hereby amended by deleting reference
to the number “101,875,000” in clause (1)(B) thereof and replacing it with the number “31,250,000”.
(g) Section 2.1(a) of the Sale and Servicing Agreement is hereby amended by deleting reference
to the number “163,000,000” in clause (1)(C) thereof and replacing it with the number “50,000,000”.
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(h) Section 2.1(a) of the Sale and Servicing Agreement is hereby amended by deleting reference
to the number “163,000,000” in clause (1)(D) thereof and replacing it with the number “50,000,000”.
(i) Section 2.1(a) of the Sale and Servicing Agreement is hereby amended by deleting reference
to the number “61,125,000” in clause (1)(E) thereof and replacing it with the number “18,750,000”.
(j) Section 2.1(e) of the Sale and Servicing Agreement is hereby amended by deleting reference
to the number “2,000,000,000” and replacing it with the number “250,000,000”.
(k) Section 5.4(m) of the Sale and Servicing Agreement is hereby amended by deleting the
phrase “(including any merger or consolidation of the Originator or transfer of substantially all
of its assets and its business)”.
(l) The signature page for WBNA is hereby amended by deleting reference to the number
“326,000,000” and replacing it with the number “100,000,000”.
(m) The signature page for JPMorgan is hereby amended by deleting reference to the number
“163,000,000” and replacing it with the number “50,000,000”.
(n) The signature page for Fairway is hereby amended by deleting reference to the number
“101,875,000” and replacing it with the number “31,250,000”.
(o) The signature page for Three Pillars is hereby amended by deleting reference to the number
“163,000,000” and replacing it with the number “50,000,000”.
(p) The signature page for Scaldis is hereby amended by deleting reference to the number
“61,125,000” and replacing it with the number “18,750,000”.
SECTION 2. WAIVER.
(a) Solely with respect to a merger or consolidation of the Servicer into any other Person for
tax purposes (a “Tax Merger”), each of the Seller, the Servicer, the Backup Servicer, the
Collateral Custodian, the Administrative Agent and the Secured Parties hereby agree to a one-time
waiver of the requirements set forth in Section 5.5(b)(i) of the Sale and Servicing Agreement that
the Servicer be the surviving entity of such Tax Merger; provided, however, that such waiver shall
not be effective until the Seller has delivered (i) to the Administrative Agent and each Purchaser
Agent an Officer’s Certificate and an Opinion of Counsel each stating that such Tax Merger complies
with Section 5.5 of the Sale and Servicing Agreement and that all conditions precedent therein
provided for relating to such transaction have been complied with and, in the case of the Opinion
of Counsel, that all agreements with respect to such Tax Merger to which the Servicer is a party
are legal, valid and binding with respect to the Servicer and such other matters as the
Administrative Agent may reasonably request, (ii) favorable bring-down opinions of counsel for the
Originator, the Seller and the Servicer, in form and substance satisfactory the Administrative
Agent, and (iii) a merger agreement or substantially similar document to the Administrative Agent
and each Purchaser Agent which states, to the reasonable
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satisfaction of the Administrative Agent, that the surviving entity of such Tax Merger shall
assume all of the assets and liabilities of the Servicer.
(b) Solely with respect to each Determination Date that occurs in January 2009, February 2009
and March 2009 where the Average Portfolio Charged-Off Ratio exceeds 4.0%, each of the Seller, the
Servicer, the Backup Servicer, the Collateral Custodian, the Administrative Agent and the Secured
Parties hereby agree to a one-time waiver per each such Determination Date of such Termination
Event as set forth in Section 10.1(c) of the Sale and Servicing Agreement; provided, however, that
no waiver is granted hereby for any Determination Date not set forth in this Section 2(b);
provided, further, that at any time after the date hereof when the Average Portfolio Charged-Off
Ratio exceeds 4.0%, the Seller shall be prohibited from requesting an Advance from any of the
Purchasers or their respective Purchaser Agents.
SECTION 3. CONSENT.
(a) Pursuant to Section 5.2(j) of the Sale and Servicing Agreement, the Administrative Agent
and each Purchaser Agent hereby consent to the amendment to the operating agreement of the Seller
as set forth on Exhibit A hereto.
(b) Pursuant to Section 5.5(b) of the Sale and Servicing Agreement, the Administrative Agent
and each Purchaser Agent hereby consent to a Tax Merger, which shall be completed within 30 days of
the date first set forth above, and hereby agree that this Amendment constitutes notice of such Tax
Merger.
SECTION 4. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, all provisions of the Sale and Servicing Agreement
shall remain in full force and effect. After this Amendment becomes effective, all references to
the Sale and Servicing Agreement, and corresponding references thereto or therein such as “hereof,”
“herein,” or words of similar effect referring to the Sale and Servicing Agreement shall be deemed
to mean the Sale and Servicing Agreement as amended hereby. This Amendment shall not constitute a
novation of the Sale and Servicing Agreement, but shall constitute an amendment thereof. This
Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of
the Sale and Servicing Agreement other than as expressly set forth herein.
SECTION 5. REPRESENTATIONS.
Each of the Originator, the Servicer and the Seller, severally for itself only, represents and
warrants as of the date of this Amendment as follows:
(i) it is duly incorporated or organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization;
(ii) the execution, delivery and performance by it of this Amendment and the Sale and
Servicing Agreement as amended hereby are within its powers, have been duly authorized, and
do not contravene (A) its charter, by-laws, or other organizational documents, or (B) any
Applicable Law;
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(iii) no consent, license, permit, approval or authorization of, or registration,
filing or declaration with any governmental authority, is required in connection with the
execution, delivery, performance, validity or enforceability of this Amendment and the Sale
and Servicing Agreement as amended hereby by or against it;
(iv) this Amendment has been duly executed and delivered by it;
(v) each of this Amendment and the Sale and Servicing Agreement as amended hereby
constitutes its legal, valid and binding obligation enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity; and
(vi) there is no Termination Event or Unmatured Termination Event that has not been
otherwise waived in this Amendment.
SECTION 6. CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Amendment is conditioned upon: (i) payment of the outstanding fees
and disbursements of the Purchasers; (ii) payment of the outstanding fees and disbursements of
Dechert LLP, as counsel to the Administrative Agent and the Purchasers; (iii) delivery of executed
signature pages by all parties hereto to the Administrative Agent; (iv) delivery of a duly executed
Variable Funding Note in the name of “Wachovia Capital Markets, LLC, as the WBNA Agent” and in the
face amount equal to $100,000,000; (v) delivery of a duly executed Variable Funding Note in the
name of “BMO Capital Markets Corp., as the Fairway Agent” and in the face amount equal to
$31,250,000; (vi) delivery of a duly executed Variable Funding Note in the name of “JPMorgan Chase
Bank, National Association” and in the face amount equal to $50,000,000; (vii) delivery of a duly
executed Variable Funding Note in the name of “SunTrust Xxxxxxxx Xxxxxxxx, Inc., as the Three
Pillars Agent” and in the face amount equal to $50,000,000; (viii) delivery of a duly executed
Variable Funding Note in the name of “Fortis Bank S.A./N.V., as the Scaldis Agent” and in the face
amount equal to $18,750,000; and (ix) delivery and execution of certain amendments to each
Purchaser Fee Letter by the parties thereto.
SECTION 7. MISCELLANEOUS.
(a) Without in any way limiting any other obligation hereunder or under the Transaction
Documents, the Seller agrees to provide, from time to time, any additional documentation and to
execute additional acknowledgements, amendments, instruments or other agreements as may be
reasonably requested and required by the Administrative Agent to effectuate the foregoing.
(b) This Amendment may be executed in any number of counterparts (including by facsimile), 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.
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(c) 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.
(d) This Amendment may not be amended or otherwise modified except as provided in the Sale and
Servicing Agreement.
(e) The failure or unenforceability of any provision hereof shall not affect the other
provisions of this Amendment.
(f) 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 number, and vice versa, and the masculine
gender shall include the feminine and neuter and the neuter shall include the masculine and
feminine.
(g) This Amendment and the Sale and Servicing Agreement represent the final agreement among
the parties with respect to the matters set forth therein and may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements among the parties. There are no unwritten
oral agreements among the parties with respect to such matters.
(h) Each of the Purchasers and Purchaser Agents party hereto agree to use commercially
reasonable efforts to promptly deliver for cancellation any and all Variable Funding Notes issued
under the Sale and Servicing Agreement prior to the date of this Amendment and held by such
Purchaser or Purchaser Agent to Xxxxxx Xxxxx LLP, as counsel for the Seller, at 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, XX 00000, Attn: Xxxxx X. Xxxxx.
(i) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE SALE AND
SERVICING AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS SET
FORTH IN THE SALE AND SERVICING AGREEMENT.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Waiver, Consent and Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first above written.
| CSE QRS FUNDING I LLC, as Seller |
||||
| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CSE MORTGAGE LLC, as Originator and as Servicer |
||||
| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | /S/ XXXX XXXXXXX | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Director | |||
| WACHOVIA CAPITAL MARKETS, LLC, as the Administrative Agent and as the WBNA Agent |
||||
| By: | /S/ XXX XXXX | |||
| Name: | Xxx Xxxx | |||
| Title: | Managing Director | |||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| FAIRWAY FINANCE COMPANY, LLC |
||||
| By: | /S/ XXXXXX X. XXXXXXX | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| BMO CAPITAL MARKETS CORP. (f/k/a Xxxxxx Xxxxxxx Corp.), as the Fairway Agent |
||||
| By: | /S/ XXXXX X. XXXXXXXXX | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Managing Director | |||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION |
||||
| By: | /S/ XXXXXXX X. XXXXXXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Executive Director | |||
| JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as the JPMorgan Agent |
||||
| By: | /S/ XXXXXXX X. XXXXXXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Executive Director | |||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| THREE PILLARS FUNDING LLC |
||||
| By: | /S/ XXXXX X. XXXXX | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Vice President | |||
| SUNTRUST XXXXXXXX XXXXXXXX, INC., as the Three Pillars Agent |
||||
| By: | /S/ XXXXXXX X. XXXX | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Managing Director | |||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| SCALDIS CAPITAL LIMITED |
||||
| By: | /S/ XXXX-XXXXX XXXXX | |||
| Name: | Xxxx-Xxxxx Xxxxx | |||
| Title: | Director | |||
| FORTIS BANK S.A./N.V., as the Scaldis Agent |
||||
| By: | /S/ XXXXXX XXXXXX | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Chief of Staff, Global Markets | |||
| By: | /S/ XXXXXXXXX XXXX | |||
| Name: | Xxxxxxxxx Xxxx | |||
| Title: | Head of New Issues, Global Markets | |||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but
solely as the Backup Servicer and as the Collateral Custodian |
||||
| By: | /S/ XXXXXXX X. XXXXX | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Vice President | |||
