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, te
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