exv10w8w2



 





Exhibit 10.8.2





EXECUTION VERSION




AMENDMENT NO. 2 TO

LOAN CERTIFICATE AND

SERVICING AGREEMENT




     THIS AMENDMENT NO. 2 TO LOAN CERTIFICATE AND SERVICING AGREEMENT, dated as
of June 30, 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) 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”).



     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 by Amendment No.
1 to Loan Certificate and Servicing Agreement dated as of April 3, 2003 (as
further amended, supplemented, modified or restated from time to time, the
"Agreement”);



     WHEREAS, the Originator has acquired a pool of floating rate senior
secured loans from the Fleet Financing Originator (defined below) pursuant to
the terms of Fleet Acquisition Agreement (defined below), a copy of which is
attached hereto as Schedule VIII-A;



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



 









 





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




Acquisition Agreement: The FINOVA Acquisition Agreement and the
Fleet Acquisition Agreement, collectively.




Advance Rate: Prior to the Release Date, an amount equal to 80%,
and on and after the Release Date, an amount equal to 75%.




Financing Originator: The FINOVA Financing Originator and the
Fleet Financing Originator, collectively.




Funding Date: (i) The Business Day following the Closing Date,
(ii) the Business Day following the Fleet Closing Date, and (iii) 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.



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




FINOVA Acquisition Agreement: Portfolio Acquisition Agreement, by
and between the Originator, the FINOVA Financing Originator and Finova
Portfolio Services, Inc., a copy of which is attached hereto as
Schedule VIII




FINOVA Financing Originator: FINOVA Capital Corporation.




Fleet Acquisition Agreement: That certain portfolio acquisition
agreement, by and between the Originator and the Fleet Financing
Originator.




Fleet Closing Date: June 30, 2003.




Fleet Financing Originator: Fleet National Bank.



2









 






Fleet Loan Checklist. The list of loan documents attached as
Schedules 3 and 9 to the Fleet Acquisition Agreement that
identifies the items contained in the related Loan File, as amended from
time to time.




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




Release Date: The date on which the Administrative Agent releases
the Collateral (as defined in the Series 2002-2 Pledge Agreement) from
the lien of the Series 2002-2 Pledge Agreement pursuant to the Release
Letter.




Release Letter: A letter in the form attached as Schedule
X.




Series 2002-2 Assignment: Membership Interest Assignment
Agreement in the form attached as Schedule XI.




Series 2002-2 Pledge Agreement: Membership Interest Pledge
Agreement dated as of February 28, 2003, by Seller, as pledgor, in favor
of Administrative Agent, as pledgee.



     (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): (i) a copy
of the duly executed original promissory note and Loan Checklist and the
Fleet 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:”



     (d) Paragraph (xx) of the definition of “Eligible Loan” in
Section 1.1 of the Agreement is hereby amended and restated in its
entirety as follows:




     (xx) with respect to each Loan purchased from the FINOVA Financing
Originator, as of the related Funding Date (i) the collateral (including,
but not limited to, the notes of the Obligors and Assignments of Mortgage
in each case where real property secures the Obligors’ notes) of the
related Obligor securing such Loan is held by an Underlying Custodian under an Underlying Custodial Agreement, (ii)
the Underlying Custodial Agreement for such Loan provides that (A) the
related Underlying Custodian holds the collateral of the Obligors on
behalf of the Originator, and any other assignee



3









 






and (B) the Underlying
Custodian will record and file the Assignments of Mortgage in its name on
behalf of the Seller and any other assignee upon the request of the
Originator and (iii) the Originator’s rights under the Underlying
Custodial Agreement are fully assignable and have been assigned to the
Purchaser.



     (e) Exhibit IV-A and Schedules X and XI to this
Amendment are hereby added to the Agreement as new Exhibit IV-A and
Schedules X and XI to the Agreement.



     Section 2. Additional Representations and Warranties. The Seller
hereby represents and warrants, as of the Fleet Closing Date, that (i) the
Fleet Loan List 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 Fleet 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) each such Asset is free and clear of any Lien of any Person
(other than Permitted Liens) and in compliance with all Applicable Laws, (iv)
with respect to each such Asset, all consents, licenses, approvals or
authorizations of or registrations or declarations of any Governmental
Authority required to be obtained, effected or given by the Seller in
connection with the transfer of an ownership interest in such Assets to the
Administrative Agent as agent for the Secured Parties have been duly obtained,
effected or given and are in full force and effect, and (v) the representations
and warranties set forth in Section 4.2(a) are true and correct with
respect to each such Asset.



     Section 3. Termination of Series 2002-2 Pledge Agreement. The
Seller may terminate the Series 2002-2 Pledge Agreement upon prior written
notice to the Administrative Agent; provided, however, that no Termination
Event or Servicer Default or event that with notice or lapse of time would
constitute either a Termination Event or a Servicer Default has occurred and
has not been remedied. Upon such notice from Seller, the parties shall execute
the Release Letter and the Series 2002-2 Assignment.



     Section 4. 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 5. Conditions Precedent.



     This Amendment shall not be effective until having been duly executed by,
and delivered to, the parties hereto.



4









 





     Section 6. 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 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]








S- 1









 







  
    	 	 	 
	VFCC:
          
	VARIABLE FUNDING CAPITAL
	
	CORPORATION
	
	 	 
	Commitment:
          
	 	 
	 
	By: 	Wachovia Securities, Inc., as attorney-
	$115,000,000
          
	 	in-fact
	 
	By:	 /s/ DOUGLAS R. WILSON, SR
	 
	 	
  
	 
	Name:	 Douglas R. Wilson, Sr.
	 
	 	
  
	 
	Title:	 Vice President
	 
	 	
  
	 
	Variable Funding Capital Corporation
	 
	c/o Wachovia Securities, Inc.
	 
	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 
	WACHOVIA SECURITIES, INC.
	THE
            PURCHASER AGENT:
	 	 
	 
	 	 
	 
	By:	 /s/ RAJ SHAH
	 
	 	
  
	 
	Name: 	Raj Shah
	 
	 	
  
	 
	Title:	 Director
	 
	 	
  
	 
	Wachovia Securities, Inc.
	 
	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]




S- 2









 








    	 	 	 
	THE
            BACKUP SERVICER: 
	WELLS FARGO BANK MINNESOTA,
	 
	NATIONAL ASSOCIATION, not in its
	 
	individual capacity but solely as Backup
	 
	Servicer
	 
	 	 
	 
	By:	 /s/ TIMOTHY MATYI
	 
	 	
  
	 
	Name: 	Timothy Matyi
	 
	 	
  
	 
	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/ TIMOTHY MATYI
	 
	 	
  
	 
	Name:	 Timothy Matyi
	 
	 	
  
	 
	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







S- 3









 





EXHIBIT IV-A




FLEET LOAN LIST





	 	1)	 	$10,000,000 Committed Revolving Line of Credit from Fleet
National Bank to Bay Country Consumer Finance, Inc. pursuant to that
certain Finance Agreement dated May 24, 2001 between Summit Bank,
predecessor in interest to Fleet National Bank, and Bay Country
Consumer Finance, Inc.
	 
	 	2)	 	$1,000,000 Committed Revolving Line of Credit from Fleet
National Bank to Miracle Finance, Inc. and Miracle Finance of
Alabama, Inc. pursuant to that certain Loan and Security Agreement
dated as of November 23, 1998 between Freemont Financial
Corporation, predecessor in interest to Summit Bank, predecessor in
interest to Fleet National Bank, and Miracle Finance, Inc. and
Miracle Finance of Alabama, Inc., as amended by that certain First
Amendment to Loan and Security Agreement dated December 22, 2000,
that certain Second Amendment to Loan and Security Agreement dated
May 14, 2001, and that certain Third Amendment to Loan and Security
Agreement dated March 31, 2002.
	 
	 	3)	 	$2,250,000 Committed Revolving Line of Credit from Fleet
National Bank to North Courtland Auto Sales, Inc. and NTM Financing
Corp. pursuant to that certain Finance Agreement dated September 7,
2000 between Summit Bank, predecessor in interest to Fleet National
Bank, and North Courtland Auto Sales, Inc. and NTM Financing Corp.,
as amended by that certain First Amendment to Finance Agreement
dated May 9, 2001, and that certain Second Amendment to Finance
Agreement dated February 19, 2002.





 









 





SCHEDULE X




FORM OF RELEASE LETTER




June 30, 2003



CapitalSource Acquisition Funding LLC

4445 Willard Avenue, 12th Floor

Chevy Chase, Maryland 20815




	 	Re: 	 	Membership Interest Pledge Agreement, dated as of February 28, 2003 (as
        amended, modified, waived, supplemented or restated from time to time,
        the “Pledge Agreement”), by and between CapitalSource
        Acquisition Funding LLC, as the pledgor, and Wachovia Securities, Inc.,
        as the administrative agent





Ladies and Gentlemen:



     Reference is hereby made to the Loan Certificate and Servicing Agreement,
dated as of February 28, 2002 , as amended by Amendment No. 1 to Loan
Certificate and Servicing Agreement dated as of April 3, 2003 (as further
amended, supplemented, modified or restated from time to time, the “Loan
Certificate and Servicing Agreement”), by and among CapitalSource
Acquisition Funding, LLC (“CapitalSource Acquisition Funding”), as the
seller, CapitalSource Finance, LLC (“CapitalSource Finance”), as the
originator and as the servicer, Variable Funding Capital Corporation
(“VFCC”), as the purchaser, Wachovia Securities, Inc., as the
administrative agent (together with its successors and assigns in such
capacity, the “Administrative Agent”) and as agent for VFCC (together
with its successors and assigns in such capacity, the “Purchaser
Agent”), and Wells Fargo Bank Minnesota, National Association, not in its
individual capacity but solely as the backup servicer and as the collateral
custodian (together with its successors and assigns in such capacity, the
"Collateral Custodian”). Capitalized terms used but not defined in this
letter agreement shall have the meanings assigned in the Loan Certificate and
Servicing Agreement.



     Effective upon the execution of this letter agreement by all parties
hereto, the Pledge Agreement (other than those provisions that explicitly
survive termination) shall be of no further force and effect, and the
Administrative Agent, on behalf of the Secured Parties, hereby releases the
Collateral (as defined in the Pledge Agreement) from the lien and operation of
the Pledge Agreement and consents to the assignment of any of the Collateral to
CapitalSource Finance pursuant to the Membership Interest Assignment Agreement
dated of even date herewith between CapitalSource Acquisition Funding and
CapitalSource Finance. The Administrative Agent hereby agrees to cooperate
with CapitalSource Acquisition Funding (i) to accomplish the filing of UCC
termination statements necessary to evidence the foregoing release, and (ii) by
executing any additional commercially reasonable documentation necessary
to accomplish such



 









 




release provided to the Administrative Agent by
CapitalSource Acquisition Funding at CapitalSource Acquisition Funding’s sole
expense (including, without limitation, such documentation as may be necessary
to return or otherwise deliver any property other than such Collateral held by
the Collateral Custodian in connection with the Pledge Agreement).




     This letter agreement may be executed in counterparts, and by the
different parties in different counterparts, each of which shall constitute an
original but all of which together shall constitute the same agreement. This
letter shall be governed by, and construed in accordance with, the internal
laws (as opposed to the conflicts of laws provisions) of the State of New York.



 









 





     If the foregoing is in accordance with your understanding, please execute
and return this letter to us.



    	 	 	 
	
            Very truly yours, 

          
	 	 
	 
	 	 
	Accepted
            and Agreed to 
	CAPITALSOURCE FINANCE LLC
	as of
            the date written above
	 	 
	 
	 	 
	 
	By:
	 
	 	
  
	 
	Name:
	 
	 	
  
	 
	Title:
	 
	 	
  
	 
	 	 
	 
	CapitalSource Finance LLC
	 
	4445 Willard Avenue, 12th Floor
	 
	Chevy Chase, Maryland 20815
	 
	Attention: James Mozingo
	 
	Facsimile No.:   (301) 841-2375
	 
	Confirmation No.:   (301) 841-2731
	 
	 	 
	Accepted
            and Agreed to 
	CAPITALSOURCE ACQUISITION FUNDING LLC
	as of
            the date written above
	 	 
	 
	 	 
	 
	By:
	 
	 	
  
	 
	Name:
	 
	 	
  
	 
	Title:
	 
	 	
  
	 
	 	 
	 
	CapitalSource Acquisition Funding LLC
	 
	4445 Willard Avenue, 12th Floor
	 
	Chevy Chase, Maryland 20815
	 
	Attention: James Mozingo
	 
	Facsimile No.:   (301) 841-2375
	 
	Confirmation No.:   (301) 841-2731







[Signatures Continued on the Following Page]




 








 





    	 	 	 
	Accepted
            and Agreed to 
	WACHOVIA SECURITIES, INC., in its capacity as
	as of
            the date written above 
	Administrative Agent
	 
	 	 
	 
	By:
	 
	 	
  
	 
	Name:
	 
	 	
  
	 
	Title:
	 
	 	
  
	 
	Wachovia Securities, Inc.
	 
	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]





 










 








    	 	 	 
	Accepted
            and Agreed to 
	VARIABLE FUNDING CAPITAL
	as of
            the date written above 
	CORPORATION
	 
	 	 
	 
	By: Wachovia Securities, Inc., as attorney-
	 
	in-fact
	 
	 	 
	 
	By:
	 
	 	
  
	Accepted
            and Agreed to 
	Name:
	 
	 	
  
	as of
            the date written above 
	Title:
	 
	 	
  
	 
	Variable Funding Capital Corporation
	 
	c/o Wachovia Securities, Inc.
	 
	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]




 









 








    	 	 	 
	Accepted
            and Agreed to 
	WACHOVIA SECURITIES, INC., in its capacity as
	as of
            the date written above 
	the Purchaser Agent
	 
	 	 
	 
	By:
	 
	 	
  
	 
	Name:
	 
	 	
  
	 
	Title:
	 
	 	
  
	 
	Wachovia Securities, Inc.
	 
	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]




 









 








    	 	 	 
	Accepted
            and Agreed to 
	WELLS FARGO BANK MINNESOTA,
	as of
            the date written above 
	NATIONAL ASSOCIATION, not in its
	 
	individual capacity but solely as Backup
	 
	Servicer
	 	 
	 
	By:
	 
	 	
  
	 
	 	 
	 
	Name:
	 
	 	
  
	 
	Title:
	 
	 	
  
	 
	 	 
	 
	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
	 
	 	 
	Accepted
            and Agreed to 
	WELLS FARGO BANK MINNESOTA,
	as of
            the date written above 
	NATIONAL ASSOCIATION, not in its
	 
	individual capacity but solely as Collateral Custodian
	 
	 	 
	 
	By:
	 
	 	
  
	 
	Name:
	 
	 	
  
	 
	Title:
	 	 	

	 
	 	 
	 
	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








 









 








SCHEDULE XI




FORM OF MEMBERSHIP INTEREST ASSIGNMENT AGREEMENT




     THIS MEMBERSHIP INTEREST ASSIGNMENT AGREEMENT (this “Agreement”),
dated as of ___, 2003, is made by CAPITALSOURCE ACQUISITION FUNDING LLC
(“CapitalSource Acquisition Funding”), as Assignor (“Assignor”)
in favor of CAPITALSOURCE FINANCE LLC (“CapitalSource Finance”), as
Assignee (“Assignee”).



R E C I T A L S




     WHEREAS, pursuant to a Membership Interest Assignment Agreement, dated as
of February 28, 2003, between CapitalSource Finance, as assignor, and
CapitalSource Acquisition Funding, as assignee, Capital Source Finance assigned
100% of the membership interests in CapitalSource Commercial Loan LLC, 2002-2
(the “LLC” and such membership interests being the “LLC
Interests”) to CapitalSource Acquisition Funding; and



     WHEREAS; CapitalSource Acquisition Funding is now the owner of the LLC
Interests; and



     WHEREAS, CapitalSource Acquisition Funding now desires to assign the
Assigned Interests (as defined below) and other Collateral (as defined below)
back to CapitalSource Finance;



     NOW, THEREFORE, based upon 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
agree as follows:



     Section 1. Recitals; Definitions. The Recitals set forth above are
true and correct and are incorporated herein by reference. When used herein,
(a) capitalized terms used but not defined in this Agreement have the meanings
given to such terms in the Loan Certificate and Servicing Agreement, dated as
of February 28, 2002 , as amended by Amendment No. 1 to Loan Certificate and
Servicing Agreement dated as of April 3, 2003 (as further amended,
supplemented, modified or restated from time to time, the “Loan Certificate
and Servicing Agreement”), by and among CapitalSource Acquisition Funding,
as the seller, CapitalSource Finance, as the originator and as the servicer,
Variable Funding Capital Corporation (“VFCC”), as the purchaser,
Wachovia Securities, Inc., as the administrative agent (together with its
successors and assigns in such capacity, the “Administrative Agent”) and
as agent for VFCC (together with its successors and assigns in such capacity,
the “Purchaser Agent”), and Wells Fargo Bank Minnesota, National
Association, not in its individual capacity but solely as the backup servicer
and as the collateral custodian (together with its successors and assigns in
such capacity, the “Collateral Custodian”), (b) all terms defined in the
Uniform Commercial Code of the State of New York and used herein shall have the
same definitions herein as specified therein and (c) the following terms have
the following meanings (such meanings to be applicable to both the singular and
plural forms of such terms):



     Distributions: All dividends, payments (including payments of
principal and interest on the Series 2002-2 Notes), deferred payments, money
and other distributions (whether in cash or


 









 





in kind) and all interest in respect of, and all proceeds of, any of the Collateral, of whatever kind or
description, real or personal, whether in the ordinary course or in partial or
total liquidation or dissolution, or any recapitalization, reclassification of
capital, or reorganization or reduction of capital, or otherwise.




     LLC Agreement: The operating agreement for the LLC (as amended,
modified, waived, supplemented or restated from time to time).



     Series 2002-2 Class D Notes: The Series 2002-2 Class D Notes
issued pursuant to the Series 2002-2 Indenture.



     Series 2002-2 Class E Notes: The Series 2002-2 Class E Notes
issued pursuant to the Series 2002-2 Indenture.



     Series 2002-2 Indenture: That certain Indenture, dated as of
October 30, 2002, by and between CapitalSource Commercial Loan Trust 2002-2, as
the issuer, and Wells Fargo, not in its individual capacity but solely in its
capacity as the indenture trustee, as such agreement may be amended, modified,
waived, supplemented or restated from time to time.



     Series 2002-2 Notes: Collectively, the Series 2002-2 Class D Notes
and the Series 2002-2 Class E Notes.



     Section 2. Assignment and Acceptance.



     (a) Assignment. For value received, Assignor hereby sells,
assigns, transfers, and conveys to Assignee, the LLC Interest and all of
Assignor’s rights as a member, in and to the LLC (including, without
limitation, Assignor’s share of the profits, losses and capital of the LLC, and
the right to vote, take actions or consent to actions in accordance with the
LLC Agreement, and to participate in the operation of the LLC) (collectively,
the “Assigned Interest”). The Assigned Interests are assigned hereunder
together with all of Assignor’s right, title and interest, whether now owned or
hereafter acquired, whether direct or indirect, whether legal, beneficial or
economic, and whether fixed or contingent, in all of the following
(collectively, the “Assigned Assets”):




     (i) in all documents, instruments or agreements (whether or not
evidenced by a writing), whether heretofore, now or hereafter in
existence or acquired, evidencing the Assigned Interest;




     (ii) in the property of the LLC;




     (iii) in all Distributions;




     (iv) in all proceeds (including claims against third parties),
products, offspring, rents, revenues, issues, profits, royalties, income,
benefits, additions and accessions to or of the foregoing;




     (v) in all replacements and substitutions of or for the foregoing;








 






     (vi) in all books and records (in whatever form or media, including
without limitation computerized records, software and disks) relating to
any of the foregoing; and




     (vii) in all documents, instruments, certificates, agreements or
other evidence of the foregoing, whether or not in written form.



     (b) Acceptance. Assignee hereby accepts the assignment of the
Assigned Interests and other Assigned Assets from Assignor. Assignee hereby
adopts and agrees to be bound by the LLC Agreement of the LLC.



     (c) Delivery, Performance. Assignor shall do all acts and deliver
such documents, and cause the LLC to do the same, as Assignee deems necessary
(or as are otherwise required by the laws of the jurisdiction governing
perfection) in order to give effect to the assignment of all of Assignor’s
right, title, and interest in the Assigned Assets to Assignee.



     Section 3. Miscellaneous.



     (a) Section Captions. Section captions used in this Agreement are
for convenience of reference only, and shall not affect the construction of
this Agreement.



     (b) Severability. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under Applicable Law, but if any provision of this Agreement shall be
prohibited by or invalid under such Applicable Law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.



     (c) Entire Agreement. This Agreement and the other Transaction
Documents constitute the entire understanding among the parties hereto with
respect to the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto.



     (d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. ASSIGNOR AND
ASSIGNEE HEREBY AGREE TO THE NON—EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT
LOCATED WITHIN THE STATE OF NEW YORK. ASSIGNOR AND ASSIGNEE HEREBY WAIVE 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.



     (e) Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ASSIGNOR AND ASSIGNEE HEREBY WAIVE 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.




     (f) Successors and Assigns. This Agreement shall inure to the
benefit of Assignee, its successors, assigns and representatives and shall bind
Assignor, its successors, assigns and representatives.



     (g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same document.



     (h) Including Means Without Limitation. The use in this Agreement
of the term “including”, and related terms such as “include,” shall in all
cases mean “including without limitation”.



     (i) Sole and Absolute Discretion. Any option, consent, approval,
discretion or similar right of Assignee set forth in this Agreement may be
exercised by Assignee in its sole, absolute and unreviewable discretion, unless
the provisions of this Agreement specifically require such option, consent,
approval, discretion or similar right to be exercised in Assignee’s discretion.



[Remainder of Page Intentionally Left Blank.]




 









 








     IN WITNESS WHEREOF, Assignor and Assignee have hereby executed this
Membership Interest Assignment Agreement as of the date written above.



    	 	 	 
	 
	CAPITALSOURCE ACQUISITION FUNDING LLC, as
	 
	Assignor
	 
	 	 
	 
	By:
	 
	 	
  
	 
	Name:
	 
	 	
  
	 
	Title:
	 
	 	
  
	 
	 	 
	 
	CAPITALSOURCE FINANCE LLC, as Assignee
	 
	 	 
	 
	By:
	 
	 	
  
	 
	Name:
	 
	 	
  
	 
	Title:
	 
	 	
  







     The undersigned hereby acknowledges and agrees to the foregoing and
consents to Assignee being admitted as a member of CapitalSource Commercial
Loan LLC, 2002-2



    	 	 	 
	
	CAPITALSOURCE COMMERCIAL LOAN

          LLC, 2002-2
	 	By: 

	 	 	
  

	 	Name:
           

	 	 	

	 	 	  

	 	Title: