EXHIBIT 10.8.1
EXECUTION VERSION
AMENDMENT NO. 1 TO
LOAN CERTIFICATE AND
SERVICING AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN CERTIFICATE AND SERVICING AGREEMENT, dated
as of April 3, 2003 (this "Amendment"), is entered into by and among
(1) CAPITALSOURCE ACQUISITION FUNDING LLC, a Delaware limited
liability company, as the seller (together with its successors and assigns in
such capacity, the "Seller");
(2) CAPITALSOURCE FINANCE LLC, a Delaware limited liability
company ("CapitalSource Finance"), as the originator (together with its
successors and assigns in such capacity, the "Originator"), and as the servicer
(together with its successors and assigns in such capacity, the "Servicer");
(3) VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation
(together with its successors and assigns, "VFCC"), as the purchaser (together
with its successors and assigns in such capacity, the "Purchaser");
(4) WACHOVIA SECURITIES, INC., a Delaware corporation (together
with its successors and assigns, "WSI"), as the agent for the Purchaser
(together with its successors and assigns in such capacity, the "Purchaser
Agent") and as the agent for the Purchaser Agent (together with its successors
and assigns in such capacity, the "Administrative Agent"); and
(5) XXXXX FARGO BANK MINNESOTA, 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").
Capitalized terms used but not defined herein are used as defined in
the Agreement (defined below).
WHEREAS, the parties hereto entered into that certain Loan Certificate
and Servicing Agreement, dated as of February 28, 2003 (as amended,
supplemented, modified or restated from time to time, the "Agreement");
WHEREAS, the parties hereto desire to amend the Agreement as provided
herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) The definition of "Facility Amount" in Section 1.1 of the
Agreement is hereby amended and restated in its entirety as follows:
Facility Amount: $125,000,000, as such amount may vary from time to
time upon the written agreement of the parties hereto; provided, that,
such amount may not at any time exceed the aggregate Commitments then
in effect; provided, further, that, on or after the Termination Date,
the Facility Amount shall mean the Advances Outstanding.
(b) Section 2.1(a) of the Agreement is hereby amended and restated
in its entirety as follows:
"(a) On the terms and conditions hereinafter set forth, on
the Closing Date, the Seller shall deliver to the Purchaser Agent, at
its address set forth on the signature pages of this Agreement, a duly
executed variable funding certificate (the "Variable Funding
Certificate" or "VFC"), in substantially the form of Exhibit B, dated
as of the date of this Agreement, in an aggregate face amount equal to
the Facility Amount, and otherwise duly completed. The Variable Funding
Certificate shall evidence an undivided ownership interest in the
Assets purchased by the Purchaser in an amount equal, at any time, to
the percentage equivalent of a fraction (i) the numerator of which is
the Advances outstanding under the VFC on such day, and (ii) the
denominator of which is the total aggregate Advances Outstanding on
such day. Interest shall accrue, and the VFC shall be payable, as
described herein. The VFC purchased by VFCC shall be in the name of
"Wachovia Securities, Inc., as the Purchaser Agent" and shall be in the
face amount equal to $125,000,000."
(c) Exhibit B to the Agreement is hereby amended and replaced in
its entirety by Exhibit B attached to this Amendment.
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, the Agreement shall remain in
full force and effect. All references to the Agreement shall be deemed to mean
the Agreement as modified hereby. This Amendment shall not constitute a novation
of the Agreement, but shall constitute an amendment thereof. The parties hereto
agree to be bound by the terms and conditions of the Agreement as amended by
this Amendment, as though such terms and conditions were set forth herein.
SECTION 3. CONDITIONS PRECEDENT.
This Amendment shall not be effective until having been duly executed
by, and delivered to, the parties hereto.
SECTION 4. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts,
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.
(b) 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.
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(c) This Amendment may not be amended or otherwise modified except
as provided in the Agreement.
(d) The failure or unenforceability of any provision hereof shall
not affect the other provisions of this Amendment.
(e) 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, and vice versa, and the masculine gender shall include the feminine and
neuter and the neuter shall include the masculine and feminine.
(f) This Amendment represents the final agreement between the
parties and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements between the parties. There are no unwritten oral
agreements between the parties.
(g) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE
STATE OF NEW YORK. EACH OF THE PARTIES HERETO AND EACH SECURED PARTY HEREBY
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE
OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT.
(h) TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE SELLER: CAPITALSOURCE ACQUISITION FUNDING
LLC
By: /s/ Xxxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxx
___________________________________
Title: Senior Vice President
__________________________________
CapitalSource Acquisition Funding LLC
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Controller
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE ORIGINATOR CAPITALSOURCE FINANCE LLC
AND THE SERVICER:
By: /s/ Xxxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxx
___________________________________
Title: Senior Vice President
__________________________________
CapitalSource Finance LLC
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Controller
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
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VFCC: VARIABLE FUNDING CAPITAL
CORPORATION
Commitment:
$125,000,000 By: Wachovia Securities, Inc., as
attorney-in-fact
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
_____________________________________
Name: Xxxxxxx X. Xxxxxx, Xx.
___________________________________
Title: Vice President
__________________________________
Variable Funding Capital Corporation
c/o Wachovia Securities, Inc.
One Wachovia Center, Mail Code: NC0610
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
With respect to notices required pursuant to Section 13.2 of the Agreement, a
copy of notices sent to VFCC shall be sent to:
Lord Securities Corp.
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE ADMINISTRATIVE AGENT AND WACHOVIA SECURITIES, INC.
THE PURCHASER AGENT:
By: /s/ Xxxx X. Xxxxxxxx
_____________________________________
Name: Xxxx X. Xxxxxxxx
___________________________________
Title: Vice President
__________________________________
Wachovia Securities, Inc.
One Wachovia Center, Mail Code: NC0610
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
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THE BACKUP SERVICER: XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Backup
Servicer
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: Corporate Trust Officer
----------------------------------
Xxxxx Fargo Bank Minnesota, National
Association
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE COLLATERAL CUSTODIAN: XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Collateral Custodian
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: Corporate Trust Officer
----------------------------------
Xxxxx Fargo Bank Minnesota, National
Association
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
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EXHIBIT B
To Amendment No. 1 to
Loan Certificate and
Servicing Agreement
FORM OF VARIABLE FUNDING CERTIFICATE
$125,000,000 April 3, 2003
THIS VARIABLE FUNDING CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). NEITHER THIS VARIABLE FUNDING
CERTIFICATE NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE
WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS VARIABLE FUNDING CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE LOAN CERTIFICATE AND SERVICING AGREEMENT REFERRED TO HEREIN.
FOR VALUE RECEIVED, CAPITALSOURCE ACQUISITION FUNDING LLC, a Delaware
limited liability company (the "Seller"), promises to pay to Wachovia
Securities, Inc. ("WSI"), as the purchaser agent (the "Purchaser Agent"), or its
or Variable Funding Capital Corporation's ("VFCC") assigns, the principal sum of
ONE HUNDRED TWENTY-FIVE MILLION DOLLARS ($125,000,000), or, if less, the unpaid
principal amount of the aggregate advances ("Advances") made by VFCC to the
Seller pursuant to the Loan Certificate and Servicing Agreement (as defined
below), as set forth on the attached Schedule, on the dates specified in the
Loan Certificate and Servicing Agreement, and to pay interest on the unpaid
principal amount of each Advance on each day that such unpaid principal amount
is outstanding, at the Interest Rate related to such Advance as provided in the
Loan Certificate and Servicing Agreement, on each Payment Date and each other
date specified in the Loan Certificate and Servicing Agreement.
This Variable Funding Certificate (the "Certificate") is issued
pursuant to the Loan Certificate and Servicing Agreement, dated as of February
28, 2003, by and among the Seller, as the seller, CapitalSource Finance LLC, as
the originator and as the servicer, VFCC, as the purchaser, WSI, as the
administrative agent, the purchaser agent, and Xxxxx Fargo Bank Minnesota,
National Association, as the backup servicer and as the collateral custodian.
Capitalized terms used but not defined in this Certificate are used with the
meanings ascribed to them in the Loan Certificate and Servicing Agreement, as
amended by Amendment No. 1 to Loan Certificate and Servicing Agreement, dated as
of the date hereof (collectively, the "Loan Certificate and Servicing
Agreement").
Notwithstanding any other provisions contained in this Certificate, if
at any time the rate of interest payable by the Seller under this Certificate,
when combined with any and all other charges provided for in this Certificate,
in the Loan Certificate and Servicing Agreement or in
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any other document (to the extent such other charges would constitute interest
for the purpose of any applicable law limiting interest that may be charged on
this Certificate), exceeds the highest rate of interest permissible under
applicable law (the "Maximum Lawful Rate"), then so long as the Maximum Lawful
Rate would be exceeded the rate of interest under this Certificate shall be
equal to the Maximum Lawful Rate. If at any time thereafter the rate of interest
payable under this Certificate is less than the Maximum Lawful Rate, the Seller
shall continue to pay interest under this Certificate at the Maximum Lawful Rate
until such time as the total interest paid by the Seller is equal to the total
interest that would have been paid had applicable law not limited the interest
rate payable under this Certificate. In no event shall the total interest
received by VFCC under this Certificate exceed the amount which VFCC could
lawfully have received had the interest due under this Certificate been
calculated since the date of this Certificate at the Maximum Lawful Rate.
Payments of the principal of, and interest on, Advances represented by
this Certificate shall be made by or on behalf of the Seller to the holder
hereof by wire transfer of immediately available funds in the manner and at the
address specified for such purpose as provided in the Loan Certificate and
Servicing Agreement, or in such manner or at such other address as the holder of
this Certificate shall have specified in writing to the Seller for such purpose,
without the presentation or surrender of this Certificate or the making of any
notation on this Certificate.
If any payment under this Certificate falls due on a day that is not a
Business Day, then such due date shall be extended to the next succeeding
Business Day and interest shall be payable on any principal so extended at the
applicable Interest Rate.
If all or a portion of (i) the principal amount hereof or (ii) any
interest payable thereon or (iii) any other amounts payable hereunder shall not
be paid when due (whether at maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum that is equal to the Base
Rate plus 2%, in each case from the date of such non-payment to (but excluding)
the date such amount is paid in full.
Portions or all of the principal amount of the Certificate shall become
due and payable at the time or times set forth in the Loan Certificate and
Servicing Agreement. Any portion or all of the principal amount of this
Certificate may be prepaid, together with interest thereon (and, as set forth in
the Loan Certificate and Servicing Agreement, certain costs and expenses of
VFCC) at the time and in the manner set forth in, but subject to the provisions
of, the Loan Certificate and Servicing Agreement.
Except as provided in the Loan Certificate and Servicing Agreement, the
Seller expressly waives presentment, demand, diligence, protest and all notices
of any kind whatsoever with respect to this Certificate.
All amounts evidenced by this Certificate, VFCC's Advances and all
payments and prepayments of the principal hereof and the respective dates and
maturity dates thereof shall be endorsed by the Purchaser Agent, on the schedule
attached hereto and made a part hereof or on a continuation thereof, which shall
be attached hereto and made a part hereof; provided, however, that the failure
of the Purchaser Agent to make such a notation shall not in any way limit or
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otherwise affect the obligations of the Seller under this Certificate as
provided in the Loan Certificate and Servicing Agreement.
The holder hereof may sell, assign, transfer, negotiate, grant
participations in or otherwise dispose of all or any portion of any Advances
made by VFCC and represented by this Certificate and the indebtedness evidenced
by this Certificate.
This Certificate is secured by the security interests granted pursuant
to Section 9.1 of the Loan Certificate and Servicing Agreement. The holder of
this Certificate is entitled to the benefits of the Loan Certificate and
Servicing Agreement and may enforce the agreements of the Seller contained in
the Loan Certificate and Servicing Agreement and exercise the remedies provided
for by, or otherwise available in respect of, the Loan Certificate and Servicing
Agreement, all in accordance with, and subject to the restrictions contained in,
the terms of the Loan Certificate and Servicing Agreement. If a Termination
Event shall occur, the unpaid balance of the principal of all Advances, together
with accrued interest thereon, shall be declared, and become, due and payable in
the manner and with the effect provided in the Loan Certificate and Servicing
Agreement.
The Seller, the Originator, the Servicer, the Purchaser, the Collateral
Custodian and the Backup Servicer each intend, for federal, state and local
income and franchise tax purposes only, that the Certificate be evidence of
indebtedness of the Seller secured by the Assets. VFCC, as a Purchaser under the
Loan Certificate and Servicing Agreement, by the acceptance hereof, agrees to
treat the Certificate for federal, state and local income and franchise tax
purposes as indebtedness of the Seller.
This Certificate is the "Variable Funding Certificate" referred to in
Section 2.1 of the Loan Certificate and Servicing Agreement and represents a
fractional undivided ownership interest in the Assets to the extent provided in
the Loan Certificate and Servicing Agreement. This Certificate shall be
construed in accordance with and governed by the laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate as on
the date first written above.
CAPITALSOURCE ACQUISITION FUNDING
LLC
By:_______________________________
Name:_____________________________
Title:____________________________
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Schedule attached to Variable Funding Certificate dated April 3, 2003 of
CapitalSource Acquisition Funding LLC, payable to the order of Wachovia
Securities, Inc., as agent for Variable Funding Capital Corporation
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Date of Principal Principal Outstanding
Advance or Amount of Amount of Principal
Repayment Advance Repayment Amount
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