FOURTH AMENDED AND RESTATED INTERCREDITOR AND LOCKBOX ADMINISTRATION AGREEMENT dated as of June 30, 2005
Exhibit 10.39
FOURTH AMENDED AND RESTATED
INTERCREDITOR AND LOCKBOX
ADMINISTRATION AGREEMENT
INTERCREDITOR AND LOCKBOX
ADMINISTRATION AGREEMENT
dated as of June 30, 2005
THIS 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 “Agreement”), is by and among:
(1) BANK OF AMERICA, N.A., a national banking association (together with its successors and
assigns, “Bank of America”), as lockbox bank under this Agreement (the “Lockbox
Bank”);
(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 hereto 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 (the
“Originator”), in each of the following capacities: (i) as original servicer under the
Financing Documents (the “Original Servicer”) and (ii) as lockbox servicer under this
Agreement (solely in such capacity, the “Lockbox Servicer”); and
(4) CAPITALSOURCE FUNDING INC., a Delaware corporation (f/k/a CapitalSource Funding LLC), as
the owner of the lockbox accounts and lockbox (in such capacity, the “Owner”).
R E C I T A L S
WHEREAS, the Originator and certain of its affiliates have entered into various commercial
paper conduit, warehouse, securitization, repurchase, loan sale and financing arrangements (each
such transaction is referred to herein as a “Financing” and, collectively, such
transactions are referred to herein as “Financings”) more particularly described on
Schedule I hereto, pursuant to which the Originator and/or such affiliates have sold,
assigned, transferred and/or granted a security interest in certain specific loans, receivables,
general intangibles, other assets and related security (collectively, together with any proceeds
thereof, being the “Obligations”) in favor of the respective Financing Agents;
WHEREAS, the Originator and certain of its affiliates may from time to time enter into
additional Financings pursuant to which the Originator and/or such affiliates may sell, assign,
transfer and/or grant a security interest in certain specific Obligations in favor of one or more
subsequent Financing Agents (the specified Obligations which have been sold, assigned, transferred
and/or granted, in the case of Financings consummated on or prior to the date hereof
| Fourth A&R Lockbox Admin. and Intercreditor | 1 |
and identified on Schedule I hereto as of the date hereof, and which may be sold,
assigned, transferred and/or granted as part of a Financing consummated after the date hereof that
involves a Financing Agent, are referred to herein collectively as “Financing Assets” and
the agreements, instruments or documents executed in connection therewith, as any of the same may
be amended, supplemented, waived, modified or restated from time to time, are referred to
collectively herein as the “Financing Documents”); and
WHEREAS, the parties hereto have entered into a Fifth Amended and Restated Three Party
Agreement Relating to Lockbox Services and Control, dated on or about June 30, 2005, as the same
may be amended, supplemented or restated from time to time in accordance therewith and herewith (a
copy of which is attached as Exhibit A hereto) (as amended, modified, supplemented,
restated or replaced from time to time, the “Lockbox Agreement”) providing for the
processing of deposits by the Lockbox Bank to accounts in the name of the Owner (the “Lockbox
Accounts”) of payments made by the underlying obligors of certain Obligations that are received
from time to time at the lockbox designated therein (the “Lockbox”) or otherwise deposited
directly into the Lockbox Accounts by wire transfer or otherwise and income or proceeds thereof
(collectively, “Remittances”), some of which Remittances may relate to various Financing
Assets and some of which may not relate to any of the Financing Assets but constitute Remittances
with respect to Obligations or portions of Obligations or other loans, receivables, general
intangibles, other property and related security retained by the Originator (including such
property in which other assignees of the Originator may have an interest) (collectively, “Other
Assets”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Regarding Liens and Interests.
(a) Each Financing Agent shall not have or assert, and hereby disclaims, any right, title or
interest in or to any (i) Financing Assets in which a security interest has not been granted to it
pursuant to its applicable Financing Documents, (ii) Other Assets and (iii) Remittances relating to
either of the foregoing except to the extent such Remittances are commingled with Remittances of
such Financing Agent’s Financing Assets which are pending distribution, and each Financing Agent
claims an undivided interest in the contents of the Lockbox Accounts to the extent such Remittances
deposited therein represent its Financing Assets, in each case subject in all respects to the terms
of this Agreement; provided, however, that each such Financing Agent does not
hereby disclaim its rights under Section 1(d) and 2(c) below, or any rights it may
have as a beneficiary of the security interest in the Lockbox and Lockbox Accounts, referred to in
Section 3 below.
(b) Each of the Originator, the Original Servicer, the Lockbox Servicer and the Owner shall
not have or assert, and hereby disclaims, any right, title or interest in or to any Financing
Assets (except to the extent permitted pursuant to the related Financing Documents), including,
without limitation, all Remittances relating thereto, except to the extent such Remittances are
commingled with the Remittances representing Financing Assets which are pending distribution, in
which case the Originator claims an undivided interest in the contents of
| Fourth A&R Lockbox Admin. and Intercreditor | 2 |
the Lockbox Accounts solely to the extent such Remittances represent Other Assets and subject
in all respects to the terms of this Agreement.
(c) Nothing herein shall be deemed to waive any rights of any Financing Agent in the event of
any transfer or other disposition of Financing Assets, as the case may be, in violation of the
agreements relating thereto or to preclude the exercise by any Financing Agent of rights and
remedies provided for under the Financing Documents related to the Remittances related to such
Financing Agent, as applicable, including without limitation (and if and to the extent so provided
therein or thereby) notification to customers of the Originator directing such customer’s
Remittances be made to an account or lockbox other than the Lockbox Accounts or Lockbox, it being
understood that this Agreement addresses only Remittances which are contained in or on deposit in
the Lockbox or Lockbox Accounts; provided that in no event shall any Financing Agent cause any
Remittances in which another Financing Agent has an interest or which comprise part of the Other
Assets to be remitted to an account other than the Lockbox Accounts without the prior written
consent of each other Financing Agent that would be affected thereby and, in the case of Other
Assets, the Originator, as applicable.
(d) In exercising any of its rights or remedies under the Financing Documents, as applicable,
with respect to any right, title and interest of the Originator as lessee, licensee or otherwise,
in and to any computer hardware and software or related intellectual property, each of the
Financing Agents agrees that it shall not take any action that would materially impair the rights
or ability of any other party to use such property in connection with the transactions contemplated
under the Financing Documents, as applicable. The parties acknowledge that such property may be
necessary to or useful in the servicing, administration and collection of all of the Financing
Assets and agree to cooperate in good faith such that the respective interests of each Financing
Agent therein and with respect thereto shall be protected and preserved.
Section 2. Separation of Collateral.
(a) Each Financing Agent hereby agrees promptly to transfer and return to, or in accordance
with the directions of, any other applicable Financing Agent or the Originator (as applicable), at
such account or other place as the appropriate other Financing Agent or the Originator (as
applicable) may instruct, any funds or other property that are received by such Financing Agent and
that are identifiable by such Financing Agent, using reasonable efforts, or that are identified by
the Originator, the Original Servicer (or a Successor Servicer, if applicable), the Lockbox
Servicer, the Owner or another Financing Agent, in each case, as not constituting Financing Assets
(or portions thereof) in which such Financing Agent has been granted an interest pursuant to its
applicable Financing Documents but instead constituting (x) Financing Assets (or portions thereof)
other than those in which such Financing Agent has been granted an interest under its Financing
Documents or (y) Other Assets. For purposes of maintaining the perfection of the other Financing
Agent’s (as applicable) interest therein, the other Financing Agents each hereby appoint such
Financing Agent as its agent in respect of such funds and other property; provided, that
such Financing Agent’s sole duty as such agent shall be to hold such funds or other property for
the benefit of the applicable Financing Agent and to transfer such funds or other property to or at
the direction of such other Financing Agent (as applicable) as aforesaid. To the extent any
Financing Agent fails to promptly comply with its obligations to return funds or other property as
provided in this Section 2(a), subsequent
| Fourth A&R Lockbox Admin. and Intercreditor | 3 |
distributions that would otherwise be made to such Financing Agent may be paid (on behalf of
such Financing Agent at the instruction of the Originator or such Financing Agent) to such other
Financing Agent or the Originator until such Financing Agent’s obligation to return such funds or
other property is satisfied (whether by return of such funds or other property or through
subsequent distributions), and each Financing Agent hereby agrees to and authorizes the application
of such payments and the rights of the Originator or the applicable Financing Agent, as applicable,
to cause such application.
(b) Each of the Originator, the Original Servicer, the Lockbox Servicer and the Owner hereby
agrees promptly to transfer and return to, or in accordance with the directions of, the applicable
Financing Agent, at such account or other place as such Financing Agent may instruct, any funds or
other property that are received by the Originator, the Original Servicer, the Lockbox Servicer or
the Owner, and that are identifiable by the Originator, the Original Servicer, the Lockbox Servicer
or the Owner, using reasonable efforts, or that are identified by any Financing Agent, in each
case, as not constituting Other Assets but instead constituting Financing Assets (or proceeds
thereof). For purposes of maintaining the perfection of the respective Financing Agent’s interest
therein, the applicable Financing Agents each hereby appoint the Originator, the Original Servicer,
the Lockbox Servicer or the Owner, as applicable, as their agent in respect of any such funds and
other property. The Originator, the Original Servicer, the Lockbox Servicer or the Owner, as such
agent, shall hold such funds or other property for the benefit of the applicable Financing Agent
and transfer such funds or other property to or at the direction of such Financing Agent as
aforesaid. To the extent the Originator fails to promptly comply with its obligations to return
funds or other property as provided in this Section 2(b), subsequent distributions that
would otherwise be made to the Originator shall be paid (on behalf of the Originator and the
Originator hereby directs such amounts to be paid as described herein) to any applicable Financing
Agent (or, pro rata among any applicable group of Financing Agents) until the Originator’s
obligation to return such funds or other property is satisfied (whether by return of such funds or
other property or through subsequent distributions), and the Originator hereby agrees to and
authorizes the application of such payments and the rights of the applicable Financing Agent or
Financing Agents to cause such application.
(c) Each Financing Agent hereby acknowledges that certain related records and other files
(including electronic files), documentation, software and similar assets may comprise a portion of
the Financing Assets inapplicable to that Financing Agent and/or Other Assets. Each of the parties
hereto agrees to cooperate in good faith such that the respective interests of the applicable
Financing Agent (or further assignees thereof) in such assets shall be protected and preserved and,
without limiting the obligations of any party hereto, each party hereto agrees to permit each other
reasonable access to such assets (to the extent they shall be in the possession or control of such
party) as shall be necessary or desirable to manage and realize on the Financing Assets or the
Other Assets, as the case may be. Except as otherwise provided in the immediately preceding
sentence, in the event that any of the Financing Assets or the Other Assets become commingled, then
each of the Financing Agents shall, in good faith, cooperate with each other to identify and
separate any such commingled Financing Assets or the Other Assets, as applicable.
(d) The out–of–pocket costs and expenses incurred by the parties hereto to effect any
identification, separation and/or sharing (including without limitation reasonable fees and
expenses of auditors and attorneys) required by this Section 2 that is not completed by the
| Fourth A&R Lockbox Admin. and Intercreditor | 4 |
Original Servicer or the Originator (at their own expense) shall be borne by the Originator.
No Financing Agent shall be required by this Section 2 to take any action that it believes,
in good faith, may prejudice its ability to realize the value of, or to otherwise protect, its
interests (and the interests of the parties for which it acts) in the applicable Financing Assets
or the Other Assets, respectively; provided, that nothing in this sentence shall relieve
the Originator or any of its subsidiaries or affiliates of its obligations hereunder or under the
Financing Documents, as applicable, with respect to the Financing Assets notwithstanding any effect
thereof on the Other Assets or the rights or interests of the Originator or any of its subsidiaries
or affiliates therein or thereto.
Section 3. Lockbox Issues.
(a) The Originator, the Owner, the Original Servicer, the Lockbox Servicer and the Lockbox
Bank confirm to each of the Financing Agents that the Lockbox and the Lockbox Accounts have been
established by the Owner with the Lockbox Bank, and that the Lockbox Agreement is in full force and
effect pursuant to its terms.
(b) The Lockbox Numbers and Lockbox Account Numbers are set forth below:
| Lockbox No. | Lockbox Account No. | |||
CapitalSource Funding Inc. — HFG
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇ |
003930559738 | |||
CapitalSource Funding Inc. — SFG
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇ |
003938703751 | |||
CapitalSource Funding Inc. — CFG
▇.▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇ |
003939396662 | |||
CapitalSource Funding Inc.
|
003922575610 | |||
The Originator and the Owner agree that the Lockbox and the Lockbox Accounts shall be maintained at
all times in the name of the Owner.
(c) The Lockbox Bank’s authorized representatives will have sole access to the Lockbox, and
neither the Originator nor any of its affiliates (including, without limitation, the
| Fourth A&R Lockbox Admin. and Intercreditor | 5 |
Owner) shall have any authority to cancel or alter the name, address, location and other terms
of the Lockbox without the prior written consent of all the parties hereto. Items will be
endorsed, credited to the Lockbox Accounts and presented for payment in accordance with the
Standard Terms and Conditions as attached as Exhibit A to and made a part of the Lockbox
Agreement.
(d) The Original Servicer is hereby designated as the initial Lockbox Servicer. The Original
Servicer confirms to each of the parties hereto that all actions of the Original Servicer taken
hereunder and under the Lockbox Agreement with respect to Remittances received in the Lockbox or
Lockbox Accounts shall be in its capacity as servicer under the applicable Financing Documents or
hereunder and not in its individual capacity. The Original Servicer (or any Successor Servicer (as
defined below)), shall (within two (2) business days of receipt of the associated remittance
details) determine and identify the portion of such Remittance received in the Lockbox or Lockbox
Accounts that represents the Financing Assets (“Financing Remittances”) and the portion
that represents Other Assets (“Other Remittances”). To the extent such Remittances
constitute Financing Remittances, the Original Servicer shall determine which Financing each
portion of such Financing Remittances relate to and cause the transfer of such funds, to the extent
it is permitted to do so pursuant to Section 3(e)(1) below, to the appropriate collection account
in accordance with (and within the time frames specified by) the related Financing Documents. In
addition, the Original Servicer (or a Successor Servicer) shall determine whether any amounts in
the Lockbox Accounts do not constitute Remittances with respect to either Financing Assets or Other
Assets, but have nonetheless been paid or deposited thereto by a customer in error
(“Misdirected Payments”). The Original Servicer (or a Successor Servicer) shall provide
notice to the Lockbox Servicer (if a separate entity) of the amounts of the payments to be made to
each Financing Agent and the Originator, as applicable, and of any Misdirected Payments (such
notice being an “Allocation Notice”), which amounts shall be determined in accordance with
this Section 3(d). For purposes of this Agreement, portions of Financing Remittances that relate
to each Financing and the Other Remittances shall each constitute a “Type” of Remittance
and the category of Obligations (or portion thereof) to which such Remittance relates constituting
a “Type” of Obligation.
Each of the parties hereto hereby agrees that:
| (1) | if the Original Servicer is terminated or has resigned its role as servicer under any of the applicable Financing Documents, or | ||
| (2) | if the funds in the Lockbox or Lockbox Accounts become subject to any seizure, freeze application, or enforcement of any security interest adverse to the interests of any Financing Agent |
(each of the events in clause (1) and (2) being a “Lockbox Trigger Event”), then in any
such case this Agreement and the Lockbox Agreement shall continue to remain in full force and
effect and a successor servicer to the Original Servicer hereunder shall be appointed by delivery
of joint written notice from both (a) the Financing Agents representing holders of at least 66.67%
of the Financing Assets that are part of financings that are term securitizations and (b) the
Financing Agents representing holders of at least 66.67% of the Financing Assets that are part of
financings that are not term securitizations, each as determined from the most recent Financing
Asset Report (as defined below) delivered by the Originator (such Financing Agents being the
| Fourth A&R Lockbox Admin. and Intercreditor | 6 |
“Requisite Financing Agents”), to the Originator (with a copy to the Lockbox Bank)
identifying such successor servicer, together with such successor servicer’s written acceptance of
such appointment, and such successor servicer (being referred to herein as the “Successor
Servicer”) shall thereupon succeed to all rights, benefits, duties and obligations of the
Original Servicer hereunder, to the extent the same relate to the giving of disbursement
instructions above.
Each of the parties hereto hereby agrees that if the Lockbox Bank’s short-term debt rating is
reduced below “F-1” by Fitch, Inc., then in any such case this Agreement and the Lockbox Agreement
shall continue to remain in full force and effect and a successor lockbox bank to the initial
Lockbox Box hereunder shall be appointed by delivery of joint written notice from each Financing
Agent then party to this Agreement pursuant to and in accordance with the provisions of Section
3(h) hereof.
In the event a customer with respect to an Obligation of one Type is also a customer with
respect to any other Type of Obligation, and one or more Remittances related to such customer are
in the Lockbox Accounts at any one time, the Original Servicer (or a Successor Servicer, if
applicable) shall determine which Remittances relate to which Type, and shall also determine how
such Remittances are to be allocated, in accordance with the allocation rules described below
(unless otherwise specified in writing by the customer in respect of that customer’s Remittance, in
which case the Remittance shall be allocated in accordance with such customer specification to the
extent that none of the parties hereto object to such specification):
(i) First, to all past due payments, if any, with respect to each Obligation of such customer,
without regard to Type (but subject to the proviso below);
(ii) Second, to the minimum payment due in the current payment period with respect to each
Obligation of such customer, without regard to Type (but subject to the proviso below); and
(iii) Third, to the remaining outstanding balance of each Obligation of such customer, without
regard to Type (but subject to the proviso below);
provided, that if in allocating Remittances in accordance with the above,
(x) the Remittances to be allocated are in respect of more than one Type, and
(y) the Remittances to be allocated are insufficient to satisfy for all Types of
Obligation, the delinquencies, minimum current payments due or remaining outstanding
balances, as applicable,
then the Remittances shall be allocated to the delinquencies, minimum current payments due or
remaining outstanding balances, as applicable, for each Type of Obligation pro rata based on the
proportion that the delinquency, minimum current payment due or remaining outstanding balance, as
applicable, for each such Type bears to the delinquencies, minimum current payments due or
remaining outstanding balances, as applicable, for all Types.
| Fourth A&R Lockbox Admin. and Intercreditor | 7 |
The allocation contemplated by this Section 3(d) shall be made by the Requisite Financing Agents
(or an entity chosen by them) as opposed to the Original Servicer (or a Successor Servicer) under
the circumstances contemplated by Section 3(e)(2) below.
(e) Disbursements
| (1) | The Financing Agents agree that (i) at any time prior to a Lockbox Trigger Event none of them will deliver or cause the delivery of a Notice (as defined in Section 2(a) of the Lockbox Agreement, a “Notice”) to the Lockbox Bank and (ii) at any time prior to delivery of a Notice to the Lockbox Bank (x) the Lockbox Servicer shall have authority to deliver the written disbursement instructions (the “Disbursement Instructions”) to the Lockbox Bank and (y) the Original Servicer (or a Successor Servicer) shall have the authority to make the allocation determinations described in Section 3(d) above or deliver an Allocation Notice to the Lockbox Servicer. Until a Notice is received by the Lockbox Bank, the Lockbox Servicer will deliver Disbursement Instructions to the Lockbox Bank in a timely manner and in compliance with its obligations to direct Remittances with respect to each Financing to the applicable collection account and the Lockbox Bank shall make distributions pursuant to such Disbursement Instructions. | ||
| (2) | On and after the occurrence of a Lockbox Trigger Event, the Requisite Financing Agents (or another entity designated by them) shall be entitled to deliver a Notice to the Lockbox Bank and/or to make the allocation determinations (including the preparation of the Allocation Notice, if any) described in Section 3(d) above by providing notice of exercise of such right to the Original Servicer (or any Successor Servicer). Upon delivery of a Notice to the Lockbox Bank and at all times thereafter, the Lockbox Bank shall no longer honor such instructions or any Allocation Notice or Disbursement Instructions received from the Lockbox Servicer, the Owner or the Originator, but shall instead make distributions pursuant to the account listed in the Notice from the Requisite Financing Agents (or an entity designated by them). Each of the Financing Agents agree that the funds so transferred to such account will be allocated in accordance with the provisions of this Agreement. | ||
| (3) | The Lockbox Bank shall disburse funds from the Lockbox Account only upon and in conformity with Section 3(e)(1) or 3(e)(2) above and shall be fully protected to the extent it follows any such instructions. The Lockbox Bank shall have no obligation or responsibility to make inquiry or in any way attest to, determine or verify the accuracy of any such written instructions or allocations, nor shall the Lockbox Bank have any duty or obligation in this regard other than to comply with such instructions of the Lockbox Servicer or, after receipt of a Notice, the Requisite Financing Agents (or an entity designated by them) by effecting funds transfers in accordance with such instructions. | ||
| (4) | [Intentionally omitted] |
| Fourth A&R Lockbox Admin. and Intercreditor | 8 |
| (5) | The Original Servicer (or any Successor Servicer) agrees to provide the Allocation Notice to the Lockbox Servicer for so long as the Financing Agents have not provided a Notice pursuant to Section 3(e)(2) above and to otherwise cooperate in good faith to provide access to the information necessary to make the allocations required by the Disbursement Instructions (including, without limitation preparing such Disbursement Instructions, or instructions related to disbursements from the account designated in the Notice on behalf of the Financing Agents if so requested) to the Lockbox Servicer or the Financing Agents (or a representative appointed by the Requisite Financing Agents) within the time frames specified by Section 3(d) above. | ||
| (6) | Each Disbursement Instruction shall be calculated in accordance with the Allocation Notice (if any) and (whether presented by the Original Servicer (or a Successor Servicer) or the Requisite Financing Agents (or an entity designated by them)) the other provisions of Section 3(d) above and shall identify Remittances held in the Lockbox Accounts as Financing Remittances or Other Remittances and direct that transfers be made by the Lockbox Bank from the Lockbox Accounts to (i) the collection account specified in the written instructions received by the Lockbox Servicer from the applicable Financing Agent with respect to the Financing Remittances applicable to such Financing Agent or (ii) the account specified in the written instructions received by the Lockbox Servicer from the Originator with respect to the Other Remittances, as applicable. | ||
| (7) | Each of the parties hereto agrees that it will not (by actions taken hereunder, pursuant to the Financing Documents or otherwise) cause the payment or application of Remittances in contravention of the order or the allocation set forth in this Agreement including as set forth in valid Disbursement Instructions; provided, that the foregoing shall not prevent any entity that is a Financing Agent from providing financing, liquidity or other services to the Originator in connection with transactions which are not Financings and for which such entity does not serve as a Financing Agent hereunder (for the avoidance of doubt, any such financings, liquidity or other transactions would involve remittances related to Other Assets and such entity, until such time as it became a Financing Agent hereunder with respect to that transaction, would have no direct rights under this Agreement with respect to such transaction). |
(f) The Lockbox Servicer may resign or cease to perform its respective duties and obligations
as Lockbox Servicer upon written notice thirty (30) days in advance to the Financing Agents of such
intention to resign or cease performing its obligations. The Lockbox Bank may resign or cease to
perform any duties or obligations under this Agreement pursuant to Section 4 of the Lockbox
Agreement. Originator agrees to pay on demand to the Lockbox Bank all usual and customary service
charges, transfer fees and account maintenance fees in connection with its services hereunder and
pursuant to the Lockbox Agreement and agrees to pay to Lockbox Bank, upon receipt of Lockbox Bank’s
invoice, all costs, expenses and attorneys’ fees (including allocated costs for in–house legal
services) incurred by the Lockbox Bank in connection with the enforcement of this Agreement and any
instrument or agreement required hereunder, including but not limited to any such costs, expenses
and fees arising out of the resolution of any conflict,
| Fourth A&R Lockbox Admin. and Intercreditor | 9 |
dispute, motion regarding entitlement to rights or rights of action, or other action to
enforce the Lockbox Bank’s rights in a case arising under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code. The
Originator agrees to pay the Lockbox Bank, upon receipt of Lockbox Bank’s invoice, all costs,
expenses and attorneys’ fees (including allocated costs for in–house legal services) incurred by
the Lockbox Bank in the preparation and administration of this Agreement (including any amendments
hereto or instruments or agreements required hereunder).
The Lockbox Bank agrees that pursuant to the Lockbox Agreement it shall not exercise any right
of set–off against Financing Remittances in the Lockbox Accounts; provided, that the
Lockbox Bank may exercise rights of set–off to reimburse itself for any checks against which
payment is made from the Lockbox Accounts which are subsequently returned unpaid or returned for
any reason. Any amounts paid to the Lockbox Bank with respect to returned checks pursuant to this
paragraph shall be allocated among the Financing Agents and/or the Originator, as applicable, in
relation to the funds received in relation to such returned check. Any subsequent distribution
shall be subject to reduction by such amounts pursuant to Section 2(a) and Section
2(b), as applicable by such allocation. Any amounts offset by the Lockbox Bank in respect to
fees and expenses pursuant to this paragraph shall be reimbursed by the Originator to the
applicable Financing Agent within two (2) business days of notice of such offset.
(g) Each of the Financing Agents hereby appoints the Lockbox Servicer as their agent and
custodian, solely for purposes of continuing the perfection and priority of its respective
interests, with respect to the applicable Financing Remittances; provided, however,
the Lockbox Servicer shall have no fiduciary or other duties or obligations, either express or
implied, to any Financing Agent in such capacity. Such rights shall be in addition to (and not in
lieu of) the Financing Agent’s right to direct disposition of the funds in the Lockbox Accounts
pursuant to the Lockbox Agreement and this Agreement.
(h) Each of the Lockbox Bank and Lockbox Servicer may be removed upon at least thirty (30)
days’ joint written notice (the “Successor Notice Period”) from each of the Financing
Agents to the Lockbox Bank and/or the Lockbox Servicer, as applicable; provided,
that, no such removal shall be effective until a successor lockbox bank to the Lockbox Bank
and/or a successor lockbox servicer to the Lockbox Servicer, as applicable, shall be appointed by
delivery of joint written notice from each of the Financing Agents to the Lockbox Bank and/or the
Lockbox Servicer identifying such successor, together with such successor lockbox bank’s and/or
lockbox servicer’s written acceptance of such appointment, and such successor lockbox bank (being
referred to herein as the “Successor Lockbox Bank”) and such successor lockbox servicer
(being referred to herein as the “Successor Lockbox Servicer”) shall thereupon succeed to
all rights, benefits, duties and obligations of the Lockbox Bank and the Lockbox Servicer, as
applicable, hereunder and under the Lockbox Agreement and this Agreement; provided,
further, that, in the event no Successor Lockbox Bank or Successor Lockbox Servicer
(as applicable) has been appointed prior to the expiration of the Successor Notice Period, each of
the Financing Agents shall give to the Lockbox Bank or the Lockbox Servicer (as applicable) at
least thirty (30) days’ joint written notice prior to the appointment and acceptance of its
successor becoming effective. Upon receipt of such written notice and acceptance by the Successor
Lockbox Servicer, the Successor Lockbox Servicer shall thereafter make disbursements of Financing
Remittances, as applicable, from the Lockbox Accounts pursuant to Section 3(d) and
(e) above; provided after removal and prior to receipt of notice of such acceptance
of appointment, the
| Fourth A&R Lockbox Admin. and Intercreditor | 10 |
Lockbox Servicer shall give Disbursement Instructions to disburse Financing Remittances solely
in accordance with the joint written instructions of each of the Financing Agents. Each of the
Financing Agents agrees to use its good faith best efforts to agree upon a mutually acceptable
Successor Lockbox Bank and Successor Lockbox Servicer, as applicable, in the event of the removal
of the Lockbox Bank and/or the Lockbox Servicer.
Section 4. Security Interest in Lockbox and Lockbox Accounts.
The parties hereto acknowledge that the Originator and one or more affiliates, as applicable,
have granted a security interest in all their right, title and interest in the Lockbox and Lockbox
Accounts, and the proceeds thereof, in favor of the each Financing Agent (as applicable), but only
to the extent of each of their respective interests under the applicable Financing Documents.
Section 5. Notice Matters.
All notices and other communications hereunder or in connection herewith shall be in writing
(including facsimile communication) and shall be personally delivered or sent by certified mail,
postage prepaid, by facsimile or by overnight delivery service, to the intended party at the
address or facsimile number of such party set forth on Exhibit B hereto or at such other
address or facsimile number as shall be designated by such party in a written notice to the other
parties hereto given in accordance with this paragraph. All notices and communications hereunder
or in connection herewith shall be effective only upon receipt. Facsimile transmissions shall be
deemed received upon receipt of verbal confirmation of the receipt of such facsimile.
Section 6. Authorization; Binding Effect; Survival.
The Lockbox Bank and the Lockbox Servicer confirm that they are authorized to execute, deliver
and perform this Agreement. The Originator, the Original Servicer and the Owner confirm that they
are able to execute, deliver and perform this Agreement. Each Financing Agent confirms that it is
authorized to execute, deliver and perform this Agreement. This Agreement shall be binding on and
inure to the benefit of each Financing Agent and its respective successors and assigns. Except as
provided in the preceding sentence, the provisions of this Agreement may not be relied upon by any
third party for any purpose.
Section 7. Integration.
This Agreement contains a final and complete integration of all prior expressions by the
parties hereto with respect to the intercreditor matters set forth herein and shall together
constitute the entire agreement between the parties hereto with respect to such matters,
superseding all prior oral or written understandings.
Section 8. Limitation of Liability; Force Majeure.
(i) The Lockbox Bank may conclusively rely on and shall be fully protected in acting upon any
certificate, instrument, opinion, notice, letter, telegram or other document delivered to
| Fourth A&R Lockbox Admin. and Intercreditor | 11 |
it and that in good faith it reasonably believes to be genuine and that has been signed by the
proper party or parties.
(ii) The Lockbox Bank may consult counsel satisfactory to it and the advice or opinion of such
counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(iii) Except to the extent expressly provided herein or in the Lockbox Agreement, the Lockbox
Bank shall not be liable to the parties hereto for any expense, claim, loss, damage or cost arising
out of or relating to its performance under this Agreement or the Lockbox Agreement, error of
judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistakes of
fact or law, or for anything that it may do or refrain from doing in connection herewith except in
the case of its willful misconduct or grossly negligent performance or omission of its duties.
(iv) The Lockbox Bank shall not be obligated to take any legal action hereunder that might in
its judgment involve any expense or liability unless it has been furnished with an indemnity
reasonably satisfactory to it. Nothing contained in this Agreement shall create any agency,
fiduciary, joint venture or partnership relationship between the Lockbox Bank and any other party
hereto.
(v) The Lockbox Bank shall have no duties or responsibilities except such duties and
responsibilities as are specifically set forth in this Agreement and no covenants or obligations
shall be implied in this Agreement against the Lockbox Bank.
(vi) The Lockbox Bank shall not be required to expend or risk its own funds in the performance
of its duties hereunder.
(vii) The Lockbox Bank shall not be liable for any loss or claim resulting from any cause
outside of the Lockbox Bank’s reasonable control.
(viii) In no event shall the Lockbox Bank be liable for incidental, special, indirect or
consequential damages, including but not limited to lost profits.
(ix) A delay in or failure of performance by the Lockbox Bank under this Agreement will be
excused and shall not constitute a default hereunder or otherwise give rise to any liability of the
Lockbox Bank if such delay or failure could not be prevented by the exercise of reasonable
diligence by the Lockbox Bank and such delay or failure was caused by circumstances beyond the
Lockbox Bank’s reasonable control, including but not limited to (i) 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 all other parties hereto or (ii) such failure or delay resulted
from the Lockbox Bank’s reasonable belief that the action would have violated any guideline, rule
or regulation of any governmental authority.
| Fourth A&R Lockbox Admin. and Intercreditor | 12 |
Section 9. Amendments.
No amendment or supplement to or modification of this Agreement and no waiver of or consent to
departure from any of the provisions of this Agreement shall be effective unless such amendment,
supplement, modification, waiver or consent is in writing and signed, in the case of an amendment,
supplement or modification, by each of the Financing Agents, the Lockbox Bank, the Owner, the
Originator, the Original Servicer and the Lockbox Servicer; provided, that after delivery
of a Notice to the Bank, then neither the Owner, the Originator, the Original Servicer (only if it
is still acting in such capacity and there has not been appointed a Successor Servicer) or the
Lockbox Servicer shall need to be a party to any amendment, supplement or modification that does
not increase the liabilities or obligations of such party hereunder or, in the case of any waiver
or consent, by the party against which enforcement of such waiver or consent is sought, and any
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given. Prior to the execution of any such amendment, waiver or consent, the
Originator and/or any applicable Financing Agent shall furnish written notification of the
substance of such amendment, supplement, modification or consent, together with a copy thereof, to
each rating agency to the extent required pursuant to the respective Financing Documents.
Section 10. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT THAT MATTERS RELATING TO THE PERFECTION
OR EFFECT OF PERFECTION OR NONPERFECTION OF A SECURITY INTEREST IN THE LOCKBOX AND LOCKBOX ACCOUNTS
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF WHERE THE ACCOUNT IS MAINTAINED.
Section 11. Waiver of Jury Trial.
EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING
OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH PARTY FURTHER (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT EACH OTHER PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE WAIVER AND CERTIFICATIONS CONTAINED IN THIS SECTION 11.
| Fourth A&R Lockbox Admin. and Intercreditor | 13 |
Section 12. Headings.
Captions and section headings are used in this Agreement for convenience of reference only and
shall not affect the meaning or interpretation of any provision hereof.
Section 13. Counterparts.
This Agreement may be executed in any number of counterparts (including by facsimile or other
electronic means) and by the different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
Section 14. Termination.
In the event that all obligations secured by Financing Assets with respect to a Financing
Agent shall have been paid in full and the applicable Financing Documents and liens created
thereunder shall have been terminated or released, then the applicable Financing Agent shall
promptly notify the other parties hereto and the Lockbox Servicer, and such Financing Agent shall
no longer have any rights or obligations hereunder. The foregoing shall not release the Originator
of any obligations it may have to the Lockbox Servicer.
Section 15. Description of Financings; Effectiveness of Provisions Relating to Subsequent
Financings and Joinder.
Schedule I attached hereto shall set forth a description of the principal Financing
Documents related to each Financing, the name of the applicable Financing Agent and an abbreviated
name of the related transaction, which shall be used by such Financing Agent to identify the
capacity in which they have executed any documents or taken any action hereunder. Notwithstanding
anything to the contrary contained herein, the provisions of this Agreement relating to subsequent
Financings, the subsequent Financing Assets, and the subsequent Financing Agents shall not become
operative until the applicable subsequent Financing Agent shall have executed and delivered to each
of the parties hereto an executed counterpart of the joinder agreement attached hereto as
Exhibit C agreeing to be bound by all the applicable terms and conditions hereof and of the
Lockbox Agreement. In connection with each subsequent Financing, the Originator will update
Schedule I hereto and provide copies to each of the parties hereto.
Section 16. Indemnification.
The Originator hereby agrees to indemnify and hold harmless the Lockbox Bank, the Lockbox
Servicer, and each Financing Agent and each director, officer, employee, agent and affiliate
thereof (collectively, the “Indemnified Parties”) from and against any and all losses,
liabilities (including liabilities for penalties), claims, demands, actions, suits, judgments,
out–of–pocket costs and expenses (including legal fees and expenses) (collectively, the
“Indemnified Amounts”) arising out of or resulting from the execution, performance and
enforcement of this Agreement, except for Indemnified Amounts arising out of or resulting from the
gross negligence, willful misconduct or bad faith of the applicable Indemnified Party. The
obligations
| Fourth A&R Lockbox Admin. and Intercreditor | 14 |
of the Originator under this Section 16 shall survive the termination of this
Agreement and/or the earlier termination or resignation of an Indemnified Party.
Section 17. Lockbox Agreement.
All services of the Lockbox Bank and the Lockbox Servicer in the performance of Remittance
processing, deposit and other administrative duties hereunder shall be governed by the Lockbox
Agreement.
Section 18. Other Transactions.
Nothing herein shall limit, restrict or impair Bank of America in any other transaction or
relationship with the Originator or any affiliate of the Originator in such capacity and this
Agreement applies to Bank of America solely in its capacity as Lockbox Bank.
Section 19. No Proceedings.
Each of the parties hereto hereby agrees not to institute or join any other person or entity
in instituting, any suit pursuant to ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar suit or
proceeding under then applicable state or federal law providing for the relief of debtors or the
protection of creditors, against the Owner prior to the date which is one year and one day (or, if
longer, the applicable preference period then in effect) after payment of all obligations of the
Owner to each applicable Financing Agent (and the parties for which it is acting as agent) are paid
in full. This section shall survive any termination of this Agreement.
Section 20. Financing Asset Reports.
The Originator and the Original Servicer agree to deliver to each of the Financing Agents, no
less frequently than quarterly, a report (the “Financing Asset Report”) that specifies the
aggregate amount of all of the Financing Assets and the portion of such aggregate amount held by
each Financing Agent and such other detail as the Originator and the Original Servicer or any
Financing Agent shall deem appropriate to enable the Financing Agents to calculate the Requisite
Financing Agents.
[Remainder of page intentionally left blank]
| Fourth A&R Lockbox Admin. and Intercreditor | 15 |
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, Successor by Merger to ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as the CS Funding II Facility Agent, the 2002-2 Securitization Agent, the 2003-1 Securitization Agent, the 2003-2 Securitization Agent, the 2004-1 Securitization Agent, the 2004-2 Securitization Agent and the 2005-1 Securitization Agent |
||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| BANK OF AMERICA, N.A., not in its individual capacity but solely as the Lockbox Bank | ||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORP., as the CS Funding Agent |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| WACHOVIA CAPITAL MARKETS, LLC, as the CS Funding III Warehouse Agent | ||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| BANK OF MONTREAL, CHICAGO BRANCH as the Mariner Facility Agent | ||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| Fourth A&R Lockbox Admin. and Intercreditor |
| JPMORGAN CHASE BANK, N.A., as CS Funding V Agent |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| CAPITALSOURCE FINANCE LLC, as the Originator, as the Original Servicer and the Lockbox Servicer | ||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Director – Treasury and Risk Management | |||
| CAPITALSOURCE FUNDING INC., as the Owner |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President | |||
| Fourth A&R Lockbox Admin. and Intercreditor |
EXHIBIT A
LOCKBOX AGREEMENT
LOCKBOX AGREEMENT
SEE ATTACHED
| Fourth A&R Lockbox and Intercreditor Agreement | Exhibit A-1 |
EXHIBIT B
NOTICE ADDRESSES
If to the CS Funding II Facility Agent, the 2002-2 Securitization Agent, the 2003-1 Securitization
Agent, the 2003-2 Securitization Agent, the 2004-1 Securitization Agent, the 2004-2 Securitization
Agent or the 2005-1 Securitization Agent:
| ▇▇▇▇▇ Fargo Bank, National Association | ||
| Sixth and Marquette Avenue | ||
| MAC N9311–161 | ||
| ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Attention:
|
Corporate Trust Services Asset–Backed Administration |
|
Facsimile No.:
|
(612) 667–3539 | |
Confirmation No.:
|
(612) 667–8058 | |
| with a copy to: | ||
| Wachovia Capital Markets, LLC | ||
| One Wachovia Center, Mail Code: NC 0600 | ||
| ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Attention:
|
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
Facsimile No.:
|
(704) 374–6495 | |
Confirmation No.:
|
(704) 383–0906 | |
| And a copy to: | ||
| Citigroup Global Markets Realty Corp. | ||
| ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attn: Asset-Backed Finance | ||
If to the CS Funding III Facility Agent:
| Wachovia Capital Markets, LLC | ||
| One Wachovia Center, Mail Code: NC 0600 | ||
| ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Attention:
|
▇▇▇ ▇▇▇▇ | |
Facsimile No.:
|
(704) 715–0067 | |
Confirmation No.:
|
(704) 374–6230 | |
If to the CS Funding Agent:
| Fourth A&R Lockbox and Intercreditor Agreement | Exhibit B-1 |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp. | ||||
| ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ | ||||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
Attention:
|
▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
Facsimile No.:
|
(▇▇▇) ▇▇▇-▇▇▇▇ | |||
Confirmation No.:
|
(▇▇▇) ▇▇▇-▇▇▇▇ | |||
If to the Mariner Facility Agent:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financing, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the CS Funding V Agent:
JPMorgan Chase Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention of Loan and Agency Services
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention of Loan and Agency Services
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
JPMorgan Chase Bank, N.A.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of Collateral Management Services Group
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention of Collateral Management Services Group
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
And a copy to:
| Fourth A&R Lockbox and Intercreditor Agreement | Exhibit B-2 |
| JPMorgan Chase Bank, N.A., | ||
| ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, | ||
| ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, | ||
| Attention of Financial Institutions Corporate Banking | ||
| Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ | ||
| Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇ | ||
If to a subsequent Financing Agent:
| To the Notice Address Specified in the Applicable Joinder Agreement | ||
If to the Lockbox Bank:
| Bank of America, N.A. | ||
| Mail Code: MD4–301–10–38 | ||
| ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Attention:
|
Deposit Support East Manager | |
Facsimile No.:
|
(▇▇▇) ▇▇▇-▇▇▇▇ | |
Confirmation No.:
|
(410) 605–8616 | |
If to the Owner:
| CapitalSource Funding Inc. | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Attention:
|
Treasurer | |
Facsimile No.:
|
(301) 841–2700 | |
Confirmation No.:
|
(301) 841–2307 | |
If to the Originator or any of its affiliates, the Lockbox Servicer or the Original Servicer:
| CapitalSource Finance LLC | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||
Attention:
|
Treasurer | |
Facsimile No.:
|
(301) 841–2700 | |
Confirmation No.:
|
(301) 841–2307 | |
| Fourth A&R Lockbox and Intercreditor Agreement | Exhibit B-3 |
EXHIBIT C
JOINDER IN FOURTH AMENDED AND RESTATED INTERCREDITOR
AND LOCKBOX ADMINISTRATION AGREEMENT
As required by Section 15 of the Fourth Amended and Restated Intercreditor and Lockbox
Administration Agreement, dated as of June 30, 2005 (such agreement as amended, modified,
supplemented or restated from time to time, the “Agreement”), [Name of Financing Agent], a
[type of entity/jurisdiction of formation], hereby agrees to be bound by all the terms and
provisions of the Agreement as a Financing Agent thereunder and shall, for all purposes, be a
“Financing Agent” thereunder.
IN WITNESS WHEREOF, the undersigned has executed this joinder in the Agreement as of this
[___] day of [___].
| [FINANCING AGENT] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[Executed counterpart to go to each of the parties to the Agreement – Agreement Section 15]
| Fourth A&R Lockbox and Intercreditor Agreement | Exhibit C |
EXHIBIT C-1
NOTICE ADDRESS FOR FINANCING AGENT
If to the [Name of Financing Agent]:
| [Name] | ||
| [ ] | ||
| [ ] | ||
Attention:
|
[ ] | |
Facsimile No.:
|
[ ] | |
Confirmation No.:
|
[ ] | |
| Fourth A&R Lockbox and Intercreditor Agreement | Exhibit C-1 |
SCHEDULE I
| Description of Principal | Abbreviated Name of | |||
| Financing Documents | Financing Agent | Transaction | ||
Fourth Amended and
Restated Loan
Certificate and
Servicing Agreement
dated May 28, 2004
|
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp. | CS Funding Facility | ||
Amended and
Restated Sale and
Servicing Agreement
dated October 7,
2004 Indenture
dated September 17,
2003
|
▇▇▇▇▇ Fargo Bank Minnesota, National Association, successor by merger to ▇▇▇▇▇ Fargo Bank Minnesota, National Association | CS Funding II Facility | ||
Sale and Servicing
Agreement dated
April 20, 2004
|
Wachovia Capital Markets, LLC | CS Funding III Facility | ||
Amended and
Restated Loan
Agreement dated
February 10, ▇▇▇▇
|
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Branch | Mariner Facility | ||
Sale and Servicing
Agreement and
Credit Agreement,
each dated June 30,
2005
|
JPMorgan Chase Bank, N.A. | CS Funding V Facility | ||
Commercial Loan
Sale Agreement
Sale and Servicing
Agreement
Indenture each
dated October 30,
2002
|
▇▇▇▇▇ Fargo Bank, National Association, successor by merger to ▇▇▇▇▇ Fargo Bank Minnesota, National Association | 2002-2 Securitization | ||
Commercial Loan
Sale Agreement
Sale and Servicing
Agreement
Indenture each
dated April 17,
2003
|
▇▇▇▇▇ Fargo Bank, National Association, successor by merger to ▇▇▇▇▇ Fargo Bank Minnesota, National Association | 2003-1 Securitization | ||
Commercial Loan
Sale Agreement
Sale and Servicing
Agreement
Indenture each
dated November 25,
2003
|
▇▇▇▇▇ Fargo Bank, National Association, successor by merger to ▇▇▇▇▇ Fargo Bank Minnesota, National Association | 2003-2 Securitization |
| Fourth A&R Lockbox and Intercreditor Agreement | Schedule I-1 |
| Description of Principal | Abbreviated Name of | |||
| Financing Documents | Financing Agent | Transaction | ||
Commercial Loan
Sale Agreement
Sale and Servicing
Agreement
Indenture, each
dated June 22, 2004
|
▇▇▇▇▇ Fargo Bank, National Association | 2004-1 Securitization | ||
Commercial Loan
Sale Agreement
Sale and Servicing
Agreement
Indenture, each
dated October 28,
2004
|
▇▇▇▇▇ Fargo Bank, National Association | 2004-2 Securitization | ||
Commercial Loan
Sale Agreement
Sale and Servicing
Agreement
Indenture, each
dated April 14,
2005
|
▇▇▇▇▇ Fargo Bank, National Association | 2005-1 Securitization |
| Fourth A&R Lockbox and Intercreditor Agreement | Schedule I-2 |