exv10w22w3






Exhibit
10.22.3




     THIRD AMENDMENT, dated as of December 31, 2008 (“Third Amendment”), to the Second Amended and
Restated Sale and Servicing Agreement dated as of May 8, 2008 (as amended, restated or otherwise
modified, the “Agreement”), by and among CapitalSource Real Estate Loan LLC, 2007-A, as the seller
(the “Seller”), CSE Mortgage LLC, as the originator (the “Originator”), and as the servicer (the
"Servicer”), each of the Issuers from time to time party thereto (collectively, the “Issuers”),
each of the Liquidity Banks from time to time party thereto (collectively, the “Liquidity Banks”),
Citicorp North America, Inc., as the administrative agent for the Issuers and Liquidity Banks
thereunder (the “Administrative Agent”); and Wells Fargo Bank, National Association, not in its
individual capacity but as the backup servicer (the “Backup Servicer”), and not in its individual
capacity but as the collateral custodian (the “Collateral Custodian”). Terms not otherwise defined
in this Third Amendment shall have the meanings set forth in the Agreement.



     The parties hereto desire to amend the Agreement as set forth below.



     Accordingly, for good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:



     Section 1. Termination of the Class B Facility. Effective as of the Effective Date
(as defined below), the Class B Commitment is hereby terminated. The parties hereto agree and
acknowledge that (i) the Class B facility provided for in the Agreement is no longer in effect,
(ii) the amount of the Class B Advances Outstanding, Class B Availability and the Class B Facility
Amount is, in each case, zero, (iii) no amounts are due or outstanding under or in connection with
the Class B Variable Funding Certificate and (iv) the Class B Variable Funding Certificate is void
and is no longer in effect.



     Section 2. Eligibility of Certain Loans. (a) If on or after the Effective Date a
default or event of default (however defined or described) occurs under or in connection with any
indebtedness owing to CapitalSource Inc. or any of its subsidiaries by any Person listed as a
“Borrower” on Schedule A attached hereto (as updated in accordance with this Section 2, “Schedule
A”), including under or in connection with any of the Loans listed next to such Borrower’s name on
Schedule A, then each of the Loans listed next to such Borrower’s name on Schedule A shall
immediately cease to be Eligible Assets and shall immediately cease to be included in the Borrowing
Base (i) with respect to a default or event of default that is not the result of a payment default,
for so long as such default or event of default is continuing (after giving effect to any cure of
such default or event of default, but regardless of whether any waiver of such default or event of
default has been granted) or (ii) with respect to a default or event of default that is the result
of a payment default, until such time as the applicable Loan has become a performing Loan and
maintained such status for a period of 12 consecutive months. The Seller shall deliver to the
Administrative Agent on or before January 9, 2009, an updated Schedule A, in form and substance
reasonably satisfactory to the Administrative Agent, which shall list (x) as a “Borrower” each
Person with indebtedness owing to CapitalSource Inc. or any of its subsidiaries to the extent that
any of the indebtedness owing to CapitalSource Inc. or any of its subsidiaries by such Person
constitutes an Asset under the Agreement and with respect to which a “Loan” is outstanding as
contemplated by clause (y) hereof and (y) as a “Loan” all other indebtedness owing to CapitalSource
Inc. or any of its subsidiaries by each such Borrower, if



 









 







any. The Seller’s failure to deliver such updated Schedule A to the Administrative Agent on
or before January 9, 2009 shall constitute a Termination Event.



     (b) The Seller may, (x) subject to the conditions set forth in Section 2.18 of the Agreement,
replace any Loan listed on Schedule A that is no longer an Eligible Asset with a Substitute Asset;
provided, that no such Loan that is replaced with a Substitute Asset shall be included in
the calculation of the percentages set forth in Sections 2.18(h) or 2.18(i) of the Agreement or (y)
subject to the conditions set forth in Section 2.19 of the Agreement, repurchase any Loan listed on
Schedule A that is no longer an Eligible Asset as if such Loan was a Delinquent Asset.



     Section 3. Representations and Warranties of the Seller and the Servicer.



     Each of the Seller and the Servicer, jointly and severally, hereby represents and warrants as
of the date hereof as follows (which representations and warranties shall survive the execution and
delivery of this Third Amendment):



     (a) The representations and warranties of each of the Seller and the Servicer set forth in the
Agreement are true and correct on and as of such date, after giving effect to this Third Amendment,
as though made on and as of such date;



     (b) Following the effectiveness of this Third Amendment, no event has occurred and is
continuing which constitutes a Termination Event or Unmatured Termination Event;



     (c) Each of the Seller and the Servicer is in compliance with each of its covenants and
agreements set forth in the Transaction Documents; and



     (d) This Third Amendment has been duly executed and delivered by the Seller and the Servicer
and constitutes the legal, valid and binding obligation of the Seller and Servicer, and is
enforceable in accordance with its terms subject (x) as to enforcement of remedies, to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement
of creditors’ rights generally, from time to time in effect, and (y) to general principles of
equity.



     Section 4. Effective Date; Continued Effectiveness; Governing Law; Counterparts.



     (a) This Third Amendment shall become effective as of the time and date (the “Effective Date”)
when the Administrative Agent shall have received a counterpart of this Third Amendment, duly
executed and delivered on behalf of each of the parties hereto.



     (b) Nothing herein shall be deemed to be a waiver of any covenant, or agreement contained in,
or any Termination Event or Unmatured Termination Event under the Agreement and each of the parties
hereto agrees that all other covenants and agreements and other provisions contained in the
Agreement and the other Transaction Documents as modified by this Third Amendment shall remain in
full force and effect from and after the date of this Third Amendment.



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     (c) THIS THIRD AMENDMENT, AND THE AGREEMENT AS AMENDED BY THE THIRD AMENDMENT, SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).



     (d) This Third Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts (including by facsimile or by electronic mail in portable
document format (pdf)), 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.



[Remainder of Page Intentionally Left Blank.]




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     IN WITNESS WHEREOF, the parties have caused this Third Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



 




	 	 	 	 	 
	THE SELLER:
	CAPITALSOURCE REAL ESTATE LOAN

LLC, 2007-A

 	 
	 	By:  	/S/ JEFFREY A. LIPSON
 	 
	 	 	Name:  	Jeffrey A. Lipson 	 
	 	 	Title:  	Vice President & Treasurer 	 
	 



 




	 	 	 	 	 
	THE ORIGINATOR, SERVICER
AND CLASS B PURCHASER:
	CSE MORTGAGE LLC

 	 
	 
	 	By:  	
/S/ JEFFREY A. LIPSON
 	 
	 	 	Name:  	Jeffrey A. Lipson 	 
	 	 	Title:  	Vice President & Treasurer 	 
	 



[Signatures Continued on the Following Page]














 








 




	 	 	 	 	 
	ISSUERS:	CRC FUNDING, LLC,

in its capacity as an Issuer

 	 
	 	By:  	Citicorp North America, Inc.,
 	 
	 	 	as Attorney-in-Fact 	 


	 	 	 	 	 
	 	 	 
	 	By:  	/S/ GERALD KEEFE
 	 
	 	 	Name:  	Gerald Keefe 	 
	 	 	Title:  	Vice President 	 




	 	 	 	 	 
	 	CAFCO, LLC,

in its capacity as an Issuer

 	 
	 	By:  	Citicorp North America, Inc.,
 	 
	 	 	as Attorney-in-Fact 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ GERALD KEEFE
 	 
	 	 	Name:  	Gerald Keefe 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	CIESCO, LLC,

in its capacity as an Issuer

 	 
	 	By:  	Citicorp North America, Inc.,
 	 
	 	 	as Attorney-in-Fact 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/S/ GERALD KEEFE
 	 
	 	 	Name:  	Gerald Keefe 	 
	 	 	Title:  	Vice President 	 













 






	 	 	 	 	 



 




	 	 	 	 	 
	LIQUIDITY BANK:	CITIBANK, N.A.,

in its capacity as a Liquidity Bank

 	 
	 	By:  	/S/ GERALD KEEFE
 	 
	 	 	Name:  	Gerald Keefe 	 
	 	 	Title:  	Vice President 	 
	 



 




	 	 	 	 	 
	THE ADMINISTRATIVE AGENT:	CITICORP NORTH AMERICA, INC.

 	 
	 	By:  	/S/ GERALD KEEFE
 	 
	 	 	Name:  	Gerald Keefe 	 
	 	 	Title:  	Vice President