LIMITED WAIVER
Exhibit
10.9.1
This LIMITED WAIVER is entered into as of February 10, 2009 (this “Limited Waiver”),
by and among CAPITALSOURCE INC., a Delaware corporation (the “Initial Borrower”), the other
Credit Parties party hereto, the Lenders party hereto and WACHOVIA BANK, NATIONAL ASSOCIATION, a
national banking association, as administrative agent for the Lenders hereunder (in such capacity,
the “Administrative Agent”), amending the Credit Agreement referred to below.
WHEREAS, the Initial Borrower, the other Credit Parties party thereto, the Lenders, the
Administrative Agent, the Swingline Lender and the Issuing Lender have entered into that certain
Credit Agreement dated as of March 14, 2006 (as amended as of June 30, 2006, December 20, 2006,
June 29, 2007, December 19, 2007, June 26, 2008 and December 23, 2008 and as further amended,
amended and restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”);
WHEREAS, the Initial Borrower has requested that the Required Lenders grant a limited waiver
as specified herein; and
WHEREAS, the Required Lenders are willing to grant such limited waiver on the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used and not defined herein shall have the
respective meanings given to them in the Credit Agreement.
2. Limited Waiver under Credit Agreement. The Required Lenders hereby waive any
Default or Event of Default that may arise under Section 5.32(f) of the Credit Agreement as a
result of a failure to comply with the financial covenant set forth in such Section in respect of
the four quarter period ended December 31, 2008; provided, however, that such
waiver shall expire and be of no further force or effect on and after March 31, 2009.
3. Conditions to Effectiveness. This Limited Waiver shall become effective as of the
date hereof when the Administrative Agent shall have received counterparts of this Limited Waiver
executed by the Initial Borrower, each other Credit Party and the Required Lenders.
4. Representation of Credit Parties. Each Credit Party represents and warrants to the
Administrative Agent and each Lender that, except as specified in Section 2 above, after giving
effect to this Limited Waiver, (a) each representation and warranty made by such Credit Party in
the Credit Agreement and other Credit Documents is true and correct in all respects on the date
hereof (or on the date to which it relates, in the case of any representation or warranty that
specifically relates to another date), and (b) no Default or Event of Default has occurred and is
continuing.
5. Limited Effect. The waiver contained herein is expressly limited in effect to the
specific waiver set forth in Section 2 above.
6. Counterparts. This Limited Waiver may be executed in several counterparts and by
the different parties hereto on separate counterparts, all of which taken together shall constitute
but one and
the same Limited Waiver. Delivery of an executed counterpart of a signature page of this
Limited Waiver by electronic transmission shall be effective as delivery of a manually executed
counterpart of this Limited Waiver.
7. Governing Law. THIS LIMITED WAIVER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
8. Credit Documents Remain in Effect.
(a) Except as expressly provided herein, all provisions, terms and conditions of the Credit
Documents shall remain in full force and effect.
(b) Nothing contained herein shall constitute a waiver of any other rights or remedies that
the Administrative Agent or any Lender may have, except as expressly set forth herein.
(c) As temporarily modified hereby, the Credit Agreement is ratified and confirmed in all
respects. During the period of the limited waiver set forth in Section 2 above, whenever the
“Credit Agreement” is referred to in the Credit Agreement, any other Credit Document or any of the
exhibits, schedules or annexes thereto or any other instrument or document executed in connection
therewith, it shall be deemed to mean the Credit Agreement as temporarily modified hereby. The
other Credit Documents are and shall continue to be in full force and effect and are hereby
ratified and confirmed in all respects.
9. No Other Agreements. This Limited Waiver sets forth the entire agreement among the
parties with respect to the subject matter hereof, and supercedes any prior agreements, written or
oral, relating thereto.
[Remainder of page left blank intentionally; signatures follow.]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Limited Waiver to be duly executed as
of the date first above written.
| BORROWER AND GRANTOR: | CAPITALSOURCE INC., a Delaware corporation |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CAPITALSOURCE FINANCE LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| GUARANTORS AND GRANTORS: | CAPITALSOURCE TRS LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CSE MORTGAGE LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CAPITALSOURCE SF TRS LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
[SIGNATURE PAGE TO WAIVER]
| CAPITAL SOURCE CF LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CAPITALSOURCE FINANCE II LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CSE CHR HOLDCO LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| CSE CHR HOLDINGS LLC, a Delaware limited liability company |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| AGREED & ACCEPTED: | CAPITALSOURCE INTERNATIONAL INC., a Delaware corporation |
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| By: | /S/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President & Treasurer | |||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, as Issuing
Lender, and as a Lender |
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| By: | /S/ XXX XXXX | |||
| Name: | Xxx Xxxx | |||
| Title: | Managing Director | |||
| BANK OF AMERICA, N.A., as Issuing Lender and as a Lender |
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| By: | /S/ XXXXXX XXXXXX | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| XXXXXX XXXXXXX BANK, as a Lender |
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| By: | /S/ XXXXXXX XXXXX | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as a Lender |
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| By: | /S/ XXX XXXXX | |||
| Name: | Xxx Xxxxx | |||
| Title: | Director | |||
| By: | /S/ XXXX XXXXXX | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Director | |||
| BMO CAPITAL MARKETS FINANCING, INC., as a Lender |
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| By: | /S/ XXX X. XXXXXX | |||
| Name: | Xxx X. Xxxxxx | |||
| Title: | Director | |||
| BEAR XXXXXXX CORPORATE LENDING INC., as a Lender |
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| By: | /S/ XXXXXXX X. XXXXXXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Executive Director | |||
| BARCLAYS BANK PLC, as a Lender |
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| By: | /S/ XXXX XXXXXX | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
| DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender |
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| By: | /S/ XXXXXXX XXXXX | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Vice President | |||
| By: | /S/ XXXXXXX XXXXXXX | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
| JPMORGAN CHASE BANK, N.A., as a Lender |
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| By: | /S/ XXXXXXX X. XXXXXXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxxxxxx | |||
| Title: | Executive Director | |||
| SOCIÉTÉ GÉNÉRALE, as a Lender |
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| By: | /S/ XXXXXXX XX | |||
| Name: | Xxxxxxx Xx | |||
| Title: | Vice President | |||
| FORTIS BANK SA/NV, New York Branch, as a Lender |
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| By: | /S/ XXXXX X. XXXXX | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Director | |||
| By: | /S/ XXXX AU | |||
| Name: | Xxxx Au | |||
| Title: | Director | |||
| BAYERISCHE HYPO-UND VEREINSBANK AG, as a Lender |
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| By: | /S/ XXXXX X. XXXXXX | |||
| Name: | Xxxxx X. Xxxxxx, CFA | |||
| Title: | Director | |||
| By: | /S/ XXXXXX XXX | |||
| Name: | Xxxxxx Xxx | |||
| Title: | Vice President | |||
| XXXXX XXX COMMERCIAL BANK, LTD., NEW YORK BRANCH, as a Lender |
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| By: | /S/ XXX X.X. XXXX | |||
| Name: | Xxx X. X. Xxxx | |||
| Title: | V.P. & General Manager | |||
| CITIBANK, N.A., as a Lender |
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| By: | /S/ XXXXXX X. XXXXXXXXX | |||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| Title: | Managing Director/Senior Credit Officer | |||
