exv10w8w3



 




EXECUTION COPY


    Exhibit 10.8.3
  
AMENDMENT NO. 3 TO

LOAN CERTIFICATE AND SERVICING AGREEMENT




     THIS AMENDMENT NO. 3 TO LOAN CERTIFICATE AND SERVICING AGREEMENT, dated as
of August 27, 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 CAPITAL MARKETS, LLC (f/k/a Wachovia Securities, Inc.), a
Delaware corporation (together with its successors and assigns, “WCM”), 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”);



     (5) WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (“Wells Fargo”), not
in its individual capacity but as the backup servicer (together with its
successors and assigns in such capacity, the “Backup Servicer”), and not in its
individual capacity but as the collateral custodian (together with its
successors and assigns in such capacity, the “Collateral Custodian”); and



     (6) WACHOVIA BANK, NATIONAL ASSOCIATION (“Wachovia”), as hedge
counterparty (together with its successors and assigns in such capacity, the
“Hedge Counterparty”), solely for purposes of acknowledging and agreeing to the
terms and provisions hereof.



     Capitalized terms used but not defined herein are used as defined in the
Agreement (defined below).



R E C I T A L S




     WHEREAS, the parties hereto entered into that certain Loan Certificate and
Servicing Agreement, dated as of February 28, 2003, as amended by Amendment No.
1 to Loan Certificate and Servicing Agreement dated as of April 3, 2003 and
Amendment No. 2 to Loan Certificate and Servicing Agreement dated as of June
30, 2003 (as further amended, supplemented, modified or restated from time to
time, the “Agreement”);



 









 





     WHEREAS, the Originator has acquired three pools of floating rate senior
secured loans, one pool on August 19, 2003 from DVI Business Credit Receivables
Corp. III (defined below), one pool on August 19, 2003 from DVI Business Credit
Corporation (defined below), and one pool on August 21, 2003 from DVI Business
Credit Receivables Corp. III, all three such acquisitions pursuant to the terms
of the DVI Acquisition Agreements;



     WHEREAS, the Originator will on the DVI Funding Dates (defined below)
transfer the Loans acquired from the DVI Financing Originator (defined below)
to the Seller pursuant to the terms of the Sale Agreements; and



     WHEREAS, the parties hereto desire to amend the Agreement as provided
herein;



     NOW THEREFORE, based on the foregoing Recitals, the mutual premises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound hereby agree as follows:



     Section 1. Amendments.



     (a) The following definitions in Section 1.1 of the Agreement are hereby
amended and restated in their entirety as follows:




Acquisition Agreements: Collectively, the FINOVA Acquisition Agreement,
the Fleet Acquisition Agreement and the DVI Acquisition Agreements, and
each an “Acquisition Agreement.”




Financing Originator: Collectively, the FINOVA Financing Originator, the
Fleet Financing Originator and the DVI Financing Originator, and each a
“Financing Originator.”




Funding Date: (i) The Business Day following the Closing Date, (ii) the
Business Day following the Fleet Closing Date, (iii) the Business Day
following the applicable DVI Closing Dates, and (iv) as to any
incremental Advance, any Business Day that is one (1) Business Day
immediately following the receipt by the Administrative Agent and the
Purchaser Agent of a Borrowing Notice (along with a Borrowing Base
Certificate) in accordance with Section 2.2.




Loan: Any loan purchased by the Originator from a Financing Originator
pursuant to and in accordance with an Acquisition Agreement that is
identified on a Loan List or contributed to the Seller eligible to be
purchased by the Seller and included as part of the Asset Pool on the
Closing Date or, with respect to a Loan purchased from the Fleet
Financing Originator, the Fleet Closing Date, or, with respect to a Loan
purchased from the DVI Financing Originator, the DVI Closing Date.



     (b) Section 1.1 of the Agreement is hereby amended to include the
following new definitions:



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Claw-Back Event: The rescission of, or a court order requiring the
Originator and/or the Seller or any assignee thereof (including, without
limitation, the Purchaser) to repay any principal or interest payments on any
Asset theretofore received by such Person from the related Obligor in
connection with any Insolvency Proceeding involving such Obligor, any Financing
Originator, or the Originator.




DVI Acquisition Agreements: Three certain Purchase Agreements, two dated
as of August 19, 2003, and one dated as of August 21, 2003, all three of
which are by and between the Originator and the DVI Financing Originator,
copies of which are attached hereto as Schedule I.




DVI Closing Date: The applicable closing date of each of the DVI
Acquisition Agreements: August 19, 2003, with regard to the Purchase
Agreement of said date with DVI Business Credit Receivables Corp. III;
August 19, 2003, with regard to the Purchase Agreement of said date with
DVI Business Credit Corporation; and August 21, 2003, with regard to the
Purchase Agreement of said date with DVI Business Credit Receivables
Corp. III.




DVI Financing Originator: DVI Business Credit Receivables Corp. III, a
Delaware corporation, or DVI Business Credit Corporation, a Delaware
corporation, as applicable.




DVI Loan Checklists. The lists of loans that identify the items
contained in the Loan Files with respect to the Loans purchased from the
DVI Financing Originator, copies of which are attached hereto as Schedule
II, as amended from time to time.




DVI Loan Lists: The DVI Loan Lists provided by the Seller to the
Administrative Agent and the Collateral Custodian, in the form of
Schedule III hereto, as such list may be amended, supplemented or
modified from time to time in accordance with this Agreement.



     (c) The first paragraph of the definition of “Eligible Loan” in Section
1.1 of the Agreement is hereby amended and restated in its entirety as follows:




Eligible Loan: On any date of determination, each Loan (A) for which the
Administrative Agent, Collateral Custodian and Backup Servicer have
received the following no later than 12:00 p.m. Charlotte, North Carolina
time on the Closing Date (or, with respect to any Loan purchased from the
Fleet Financing Originator, the Fleet Closing Date, or, with respect to
any Loan purchased from the DVI Financing Originator, the DVI Closing
Date): (i) a copy of the duly executed original promissory note and Loan
Checklist, the Fleet Loan Checklist and the DVI Loan Checklist in a form
and substance satisfactory to the Administrative Agent, (ii) a Borrowing
Notice and Loan List delivered by the Seller to the Collateral Custodian
and the Administrative Agent as part of the Borrowing Notice or Monthly
Report delivered by the Servicer, and (iii) a Borrowing Base Certificate;
provided, however, that if such Loan is part of a capital contribution or
Required Equity Contribution to the Seller the Collateral Custodian shall
have received the Required Loan Documents within three (3) Business Days
of receipt of the Certificate of Assignment, and (B) that satisfies each
of the following eligibility requirements:



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     (d) Clause (ww) of definition of “Eligible Loan” in Section 1.1 of the
Agreement is hereby amended by deleting the “and” at the end thereof.



     (e) Clause (xx) of definition of “Eligible Loan” in Section 1.1 of the
Agreement is hereby amended by deleting the “.” at the end thereof and
substituting in its place “; and”.



     (f) The definition of “Eligible Loan” in Section 1.1 of the Agreement is
hereby amended by adding the following new clause (yy):



(yy) the Loan is not and will not be subject to a Claw-Back Event, and
there is not and will not be any basis for any such claim, suit or action of
any kind arising out of or in connection with a Claw-Back Event to be brought
or made.



     (g) The Agreement is hereby amended by adding the following as a new
Section 5.1(q):




(q) On or prior to September 19, 2003, the Seller and the Servicer shall
instruct each of the Obligors on the Loans purchased from the DVI
Financing Originator to cause all subsequent Collections to be deposited
directly to a Lock-Box Account in the Administrative Agent’s control.
Prior to such time, the Seller and Servicer shall cause all Collections
on the Loans purchased from the DVI Financing Originator received in any
lock-box or other account to be removed and deposited on a daily basis
into the Collection Account.



     (h) Clause (20) of Section 11.1(a) of the Agreement is hereby amended by
deleting the “or” at the end thereof.



     (i) Clause (21) of Section 11.1(a) of the Agreement is hereby amended by
deleting the “.” at the end thereof and substituting in its place “; or”.



     (j) Section 11.1(a) of the Agreement is hereby amended by adding the
following new clause (22):




(22) any claim, suit or action of any kind arising out of or in connection with
any Claw-Back Event.



     (k) Schedules I, II and III to this Amendment are hereby added to the
Agreement as new Schedules XII, XIII and XIV to the Agreement.



     (l) The Agreement is hereby amended by adding the following as Section
13.20:



     Section 13.20 WCM Transfer.




     On or about July 1, 2003, WSI was transferred, assigned or otherwise
conveyed (the occurrence of such event, the “WCM Transfer”) to Wachovia Capital
Markets, LLC (“WCM”). Each of the parties hereto, hereby expressly consents to
the assignment by WSI of all of its rights and obligations hereunder to WCM
simultaneous with the WCM Transfer. Each of the parties hereto acknowledges
and agrees that such assignment was



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effective without any further action by any of the parties hereto and from
and after the WCM Transfer, (i) WCM shall be a party hereto and shall have the
rights and obligations of WSI hereunder and (ii) WSI shall cease to be a party
hereto and shall be released from its obligations hereunder.



          (m) The Agreement is amended by adding the following as Section 13.21:



               Section 13.21 Non-Confidentiality of Tax Treatment.




     Notwithstanding anything to the contrary contained herein, all parties
hereto agree that each of them and each of their employees, representatives,
and other agents may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transaction and all materials
of any kind (including, without limitation, opinions or other tax analyses)
that are provided to any of them relating to such tax treatment and tax
structure. “Tax treatment” and “tax structure” shall have the same meaning as
such terms have for purposes of Treasury Regulation Section 1.6011-4; provided,
however, that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of the
transaction as well as other information, the provisions of this Section 13.21
shall only apply to such portions of the document or similar item that relate
to the tax treatment or tax structure of the transactions contemplated hereby.



     Section 2. Representations. The Seller, the Originator and the Servicer
(collectively, the “CapitalSource Parties”) each (as to itself only) hereby
represents and warrants as of the date of this Amendment as follows: (i) it is
duly incorporated or organized, validly existing and in good standing under the
laws of its jurisdiction of organization; (ii) the execution, delivery and
performance by it of this Amendment are within its powers, have been duly
authorized, and do not contravene (A) its articles of organization, operating
agreement, or other organizational documents, or (B) any Applicable Law; (iii)
no consent, license, permit, approval, vote, authorization, registration,
filing or declaration with any Governmental Authority or any other Person, is
required in connection with the execution, delivery, performance, validity or
enforceability of this Amendment by or against it; (iv) this Amendment has been
duly authorized, executed and delivered by it; (v) this Amendment constitutes
its legal, valid and binding obligation enforceable against it in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors’ rights generally or by general principles of
equity; (vi) the execution and delivery of this Amendment does not diminish or
reduce its obligations under the Agreement and the other Transaction Documents
in any manner except as specifically set forth herein, (vii) such CapitalSource
Party has no claims, counterclaims, offsets, or defenses to the Aggregate
Unpaids under the Agreement and the other Transaction Documents and the
performance of its obligations thereunder, or if such CapitalSource Party has
any such claims, counterclaims, offsets, or defenses to the Aggregate Unpaids
under the Agreement and the other Transaction Documents, the same are hereby
waived, relinquished and released in consideration of the Administrative
Agent’s and the Secured Parties’ execution and delivery of this Amendment,
(viii) it is not in default under the Agreement; (ix) the representations and
warranties of the CapitalSource Parties set forth in Sections 4.1, 4.2 and 7.8
of the Agreement are true and correct as of the date hereof (except those that
expressly relate to an earlier date) and all



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of the provisions of the Agreement and the other Transaction Documents,
except as amended hereby, are in full force and effect, and (x) subsequent to
the execution and delivery of this Amendment and after giving effect hereto, no
unwaived event has occurred and is continuing which constitutes an Unmatured
Termination Event or a Termination.




     Section 3. Additional Representations and Warranties. The Originator and
the Seller hereby represent and warrant, as of the DVI Closing Dates, that (i)
the DVI Loan Lists and the information contained in the Borrowing Notice
delivered pursuant to Section 2.2 is an accurate and complete listing in all
material respects of all Assets purchased from the DVI Financing Originator in
the Asset Pool as of the Cut-Off Date and the information contained therein
with respect to the identity of such Assets and the amounts owing thereunder is
true and correct in all material respects as of the related Cut-Off Date, (ii)
each such Loan that is part of the Borrowing Base is an Eligible Loan as of
such date, (iii) no Asset acquired by the Originator from the DVI Financing
Originator is or will be subject to a Claw-Back Event, and there is not and
will not be any basis for any such claim, action or proceeding of any kind
arising out of or in connection with a Claw-Back Event to be brought or made,
(iv) each such Asset is free and clear of any Lien of any Person (other than
Permitted Liens) and in compliance with all Applicable Laws, (v) with respect
to each such Asset, all consents, licenses, approvals, votes, authorizations,
registrations or declarations of any Governmental Authority or any Person
(including, without limitation, any indenture trustee or noteholder) required
to be obtained, effected or given by or to the Financing Originator, the
Originator and the Seller in connection with the transfer of an ownership
interest in such Assets from the DVI Financing Originator to the Originator,
from the Originator to the Seller and from the Seller to the Administrative
Agent, as agent for the Secured Parties, have been duly obtained, effected or
given and are in full force and effect, (vi) the representations and warranties
set forth in Section 4.2(a) are true and correct with respect to each such
Asset, and (vii) the DVI Acquisition Agreements (x) were duly authorized and
executed by the parties thereto, (y) constitute the legal, valid and binding
obligation of the parties thereto, enforceable in accordance with its terms,
and (z) do not conflict with the terms of any Contractual Obligation applicable
to the DVI Financing Originator.



     Section 4. Liens. Each CapitalSource Party affirms the Liens and security
interests created and granted by it in the Agreement and the other Transaction
Documents and agrees that this Amendment shall in no manner adversely affect or
impair such Liens and security interests.



     Section 5. 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 6. Conditions Precedent.



     This Amendment shall not be effective until (i) having been duly executed
by, and delivered to, the parties hereto, (ii) delivery to the Administrative
Agent (in a form acceptable to



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the Administrative Agent) of (A) a perfection and true sale opinion as to
the transfer from the DVI Financing Originator to the Originator, (B) a
bring-down of the existing perfection and true sale opinions as to the transfer
from the Originator to the Seller and from the Seller to the Purchaser
(perfection only), and (C) a due authorization, execution and enforceability
opinion with respect to the DVI Acquisition Agreements and this Amendment;
(iii) payment of the reasonable legal fees and expenses of Mayer, Brown, Rowe &
Maw LLP as counsel to the Administrative Agent in connection with this
Amendment, prior amendments and the prior closing and any third party expenses;
and (iv) such other documents, agreements, certification, or legal opinions as
the Administrative Agent, may reasonably require.




     Section 7. 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.



     (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



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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/ STEVEN A. MUSELES

          Name: Steven A. Museles

          Title: Senior Vice President
	 	 	 
	 	 	 CapitalSource Acquisition Funding LLC

          4445 Willard Avenue, 12th Floor

          Chevy Chase, Maryland 20815

          Attention: Controller

          Facsimile No.:(301) 841-2375

          Confirmation No.:(301) 841-2731
	THE ORIGINATOR

            AND THE SERVICER:
	 	 CAPITALSOURCE FINANCE LLC
	 	 	 By: /s/ STEVEN A. MUSELES

          Name: Steven A. Museles

          Title: Senior Vice President
	 	 	 CapitalSource Finance LLC

          4445 Willard Avenue, 12th Floor

          Chevy Chase, Maryland 20815

          Attention: Controller

          Facsimile No.: (301) 841-2375

          Confirmation No.: (301) 841-2731







[Signatures Continued on the Following Page]




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	VFCC:

            Commitment:

            $115,000,000
	 	 VARIABLE FUNDING CAPITAL

          CORPORATION
	 	 	 By: Wachovia Capital Markets, LLC, as

          attorney-in-fact

          By: /s/ DOUGLAS R. WILSON, SR

          Name: Douglas R. Wilson, Sr.

          Title: Vice President
	 	 	 
	 	 	 Variable Funding Capital Corporation

          c/o Wachovia Capital Markets, LLC

          One Wachovia Center, Mail Code: NC0610

          Charlotte, North Carolina 28288

          Attention: Conduit Administration

          Facsimile No.:(704) 383-6036

          Confirmation No.:(704) 383-9343






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.

          2 Wall Street, 19th Floor

          New York, New York 10005

          Attention: Vice President

          Facsimile No.:(212) 346-9012

          Confirmation No.:(212) 346-9008
	 	 	 
	THE ADMINISTRATIVE
            AGENT AND

            THE PURCHASER AGENT:
	 	 WACHOVIA CAPITAL MARKETS, LLC
	 	 	 
	 	 	 By: /s/ PAUL BURKHART

          Name: Paul Burkhart

          Title: Vice President

          Wachovia Capital Markets, LLC

          One Wachovia Center, Mail Code: NC0610

          Charlotte, North Carolina 28288

          Attention: Conduit Administration

          Facsimile No.:(704) 383-6036

          Confirmation No.:(704) 383-9343







[Signatures Continued on the Following Page]




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	THE BACKUP
            SERVICER:
	 	 WELLS FARGO BANK MINNESOTA,

          NATIONAL ASSOCIATION, not in its

          individual capacity but solely as Backup

          Servicer
	 	 	 
	 	 	 By: /s/ JOE NARDI

          Name: Joe Nardi

          Title: Assistant Vice President
	 	 	 
	 	 	 Wells Fargo Bank Minnesota, National

          Association

          Sixth Street and Marquette Avenue

          MAC N9311-161

          Minneapolis, Minnesota 55479

          Attention: Corporate Trust Services

          Asset-Backed Administration

          Facsimile No.:(612) 667-3539

          Confirmation No.:(612) 667-8058
	 	 	 
	THE COLLATERAL
            CUSTODIAN:
	 	 WELLS FARGO BANK MINNESOTA,

          NATIONAL ASSOCIATION, not in its

          individual capacity but solely as

          Collateral Custodian
	 	 	 
	 	 	 By: /s/ JOE NARDI

          Name: Joe Nardi

          Title: Assistant Vice President
	 	 	 
	 	 	 Wells Fargo Bank Minnesota, National

          Association

          Sixth Street and Marquette Avenue

          MAC N9311-161

          Minneapolis, Minnesota 55479

          Attention: Corporate Trust Services

          Asset-Backed Administration

          Facsimile No.:(612) 667-3539

          Confirmation No.:(612) 667-8058







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SCHEDULE I




DVI ACQUISITION AGREEMENTS




(SEE ATTACHED)



  
 








 








SCHEDULE II




DVI LOAN CHECKLISTS




(SEE ATTACHED)



  
 








 








SCHEDULE III




DVI LOAN LISTS




(SEE ATTACHED)