exv10w74



 








Exhibit 10.74




EXECUTION VERSION




FIRST AMENDMENT TO THE NOTE PURCHASE AGREEMENT




     This First Amendment (this “Amendment”) to the Note Purchase Agreement referenced
below is entered into as of August 2, 2007, among CapitalSource Funding VII Trust, a Delaware
statutory trust (the “Issuer”), CS Funding VII Depositor LLC, a Delaware limited liability
company, as Depositor (the “Depositor”), CapitalSource Finance LLC, a Delaware limited
liability company (“CapitalSource,” and in its capacity as Loan Originator, the “Loan
Originator”) and Citigroup Global Markets Realty Corp. (“Citigroup,” and in its
capacity as Purchaser hereunder, the “Purchaser”).



R E C I T A L S:




     WHEREAS, the Issuer, the Depositor, the Loan Originator and the Purchaser are parties to the
Note Purchase Agreement, dated as of April 19, 2007 (as amended, supplemented and otherwise
modified form time to time including by this Amendment, the “Note Purchase Agreement”);



     WHEREAS, the parties hereto desire to amend the Note Purchase Agreement pursuant to Section
11.01 thereof as more specifically set forth below;



     NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:



     Section 1. Amendments to the Note Purchase Agreement. Upon the execution and delivery
of this Amendment and satisfaction of the conditions precedent set forth herein, the definition of
“Maximum Note Principal Balance” in Section 1.01 of the Note Purchase Agreement is hereby amended
and restated in its entirety as follows:



          “Maximum Note Principal Balance” means an amount equal to One Billion Five
Hundred Million Dollars ($1,500,000,000).




     Section 2. Conditions Precedent. The effectiveness of this Amendment shall be subject
to satisfaction (or waiver by the Purchaser) of the following conditions precedent:



          (a) Execution and Delivery of this Amendment. Each of the parties hereto shall have
executed and delivered this Amendment.




          (b) No Default or Event of Default. No Default or Event of Default shall have
occurred or be continuing.




     Section 3. Restructuring of the CSVII Financing Facility. A Termination Date shall be
deemed to occur under the Basic Documents if the parties to the Basic Documents shall not have
entered into an amendment in form and substance satisfactory to the Initial Noteholder on or before
October 15, 2007 to substantially conform the concentration limitations, covenants,
representations and warranties set forth in the Basic Documents to the concentration
limitations, covenants, representations and warranties set forth in the CSII Financing Facility.
“CSII



 









 




Financing Facility” means the facility under which notes are issued pursuant to the
Indenture, dated as of September 17, 2003 between CapitalSource Funding II Trust, as issuer, and
Wells Fargo Bank Minnesota, National Association, as indenture trustee, and such notes are
purchased by Citigroup Global Markets Realty Corp. pursuant to the Amended and Restated Note
Purchase Agreement, dated as of September 17, 2003 and amended and restated as of October 7, 2004,
among CapitalSource Funding II Trust, as issuer, CS Funding II Depositor LLC, as depositor,
CapitalSource and Citigroup Global Markets Realty Corp.




     Section 4. No Reliance. Each of the Issuer, the Depositor and the Loan Originator
hereby acknowledges that it has not relied on the Purchaser or any of its officers, directors,
employees, agents and “control persons” as such term is used under the Act and under the Securities
Exchange Act of 1934, as amended, for any tax, accounting, legal or other professional advice in
connection with the transactions contemplated by this Amendment or the Basic Documents, that each
of the Issuer, the Depositor and the Loan Originator has retained and been advised by such tax,
accounting, legal and other professionals as it has deemed necessary in connection with the
transactions contemplated by this Amendment and the Basic Documents and that the Purchaser makes no
representation or warranty, and shall have no liability with respect to, the tax, accounting or
legal treatment or implications relating to the transactions contemplated by this Amendment and the
Basic Documents.



     Section 5. Defined Terms; Headings. All capitalized terms used herein, unless
otherwise defined herein, have the same meanings provided herein or in the Note Purchase Agreement.
The headings of the various Sections of this Amendment have been inserted for convenience of
reference only and shall not be deemed to be part of this Amendment.



     Section 6. Limited Amendment. This Amendment is limited precisely as written and
shall not be deemed to (a) be a consent to a waiver or any other term or condition of the Note
Purchase Agreement, the other Basic Documents or any of the documents referred to therein or
executed in connection therewith or (b) prejudice any right or rights the Purchaser may now have or
may have in the future under or in connection with the Note Purchase Agreement, the other Basic
Documents or any documents referred to therein or executed in connection therewith. Whenever the
Note Purchase Agreement is referred to in the Note Purchase Agreement or any of the instruments,
agreements or other documents or papers executed and delivered in connection therewith, it shall be
deemed to mean the Note Purchase Agreement, as the case may be, as modified by this Amendment.
Except as hereby amended, no other term, condition or provision of the Note Purchase Agreement
shall be deemed modified or amended, and this Amendment shall not be considered a novation and all
terms and conditions of the Note Purchase Agreement shall remain in full force and effect and are
hereby ratified in all respects.



     Section 7. Construction. This Amendment is a document executed pursuant to the Note
Purchase Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered or applied in accordance with the terms and provisions thereof.



     Section 8. Counterparts; Facsimile Signature. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an original and all
of which shall constitute together but one and the same agreement. The parties may execute



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facsimile copies of this Amendment and the facsimile signature of any such party shall be deemed an
original and fully binding on said party.




     Section 9. Governing Law. This Amendment shall be governed by, subject to and
construed in accordance with the applicable terms and provisions of Section 11.06 (Governing Law;
Jurisdiction) of the Note Purchase Agreement, which terms and provisions are incorporated herein by
reference.



     Section 10. Limitation on Liability. The Depositor hereby instructs the Owner
Trustee, pursuant to Section 6.3 of the Trust Agreement, to execute and deliver this Amendment. It
is expressly understood and agreed by the parties hereto that (a) this Amendment is executed and
delivered by Wilmington Trust Company, not individually or personally, but solely as Owner Trustee
of CapitalSource Funding VII Trust, in the exercise of the powers and authority conferred and
vested in it, (b) each of the representations, undertakings and agreements herein made on the part
of the Issuer is made and intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding only the Issuer, (c)
nothing herein contained shall be construed as creating any liability on Wilmington Trust Company,
individually or personally, to perform any covenant either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust
Company be personally liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or covenant made or
undertaken by the Issuer under this Amendment or any other related documents.



     Section 11. Binding Effect; Assignability. This Amendment shall be governed by,
subject to and construed in accordance with the applicable terms and provisions of Section 11.04
(Binding Effect; Assignability) of the Note Purchase Agreement, which terms and provisions are
incorporated herein by reference.



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     IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to the Note Purchase
Agreement to be duly executed by their respective authorized officers as of the day and year first
written above.



	 	 	 	 	 
	 	CAPITALSOURCE FUNDING VII TRUST,

 	 
	 	By:  	Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee
 	 



	 	 	 	 	 
	 	By:  	/s/ IAN P. MONIGLE
 	 
	 	Name:  	Ian P. Monigle 	 
	 	Title:  	Financial Services Officer 	 
	 



	 	 	 	 	 
	 	CS FUNDING VII DEPOSITOR LLC

 	 
	 	By:  	/s/ JEFFREY LIPSON
 	 
	 	Name:  	Jeffrey Lipson 	 
	 	Title:  	Vice President & Treasurer 	 
	 



	 	 	 	 	 
	 	CAPITALSOURCE FINANCE LLC

 	 
	 	By:  	/s/ JEFFREY LIPSON
 	 
	 	Name:  	Jeffrey Lipson 	 
	 	Title:  	Vice President & Treasurer 	 
	 



	 	 	 	 	 
	 	CITIGROUP GLOBAL MARKETS REALTY CORP.

 	 
	 	By:  	/s/ GERALD F. KEEFE
 	 
	 	Name:  	Gerald Keefe 	 
	 	Title:  	Authorized Signatory 	 
	 



[Signature Pages to First Amendment to Note Purchase Agreement]