exv10w17w1






Exhibit 10.17.1




24 February 2010




CS
EUROPE FINANCE LIMITED and CS UK FINANCE LIMITED

as the Borrowers




EACH OF THE INSTITUTIONAL LENDERS

PARTY HERETO AS LENDERS,

as the Lenders




EACH
OF THE LENDER AGENTS

PARTY HERETO AS LENDER AGENTS,

as the Lender Agents




EACH OF THE SWINGLINE LENDER AGENTS

PARTY HERETO AS SWINGLINE LENDER AGENTS

as the Swingline Lender Agents




EACH OF THE INSTITUTIONAL LENDERS

PARTY HERETO AS SWINGLINE LENDERS,

as the Swingline Lenders




CAPITALSOURCE FINANCE LLC

as Servicer




CAPITALSOURCE EUROPE LIMITED

as Subservicer and Parent




CAPITALSOURCE (UK) LIMITED

as Parent




WACHOVIA BANK, N.A.

as the Administrative Agent and the Security Trustee




and




WACHOVIA SECURITIES INTERNATIONAL LTD.,

as Lead Arranger and Sole Bookrunner



 

 


DEED OF AMENDMENT RELATING TO
THE 
SERVICING AGREEMENT

 






 









 







THIS DEED
OF AMENDMENT (this “Deed”) is dated 24 February 2010 and made among:





	(1)	 	CS EUROPE FINANCE LIMITED (“CSEF”), a wholly-owned subsidiary of CapitalSource Europe Limited.
incorporated in England and Wales under registered number 6340019 and CS UK FINANCE LIMITED
(“CSUF”), a wholly-owned subsidiary of CapitalSource UK Limited incorporated in England and Wales
under registered number 6340034, each as a borrower and guarantor (each, a “Borrower” and together
the “Borrowers”);
	 
	(2)	 	EACH OF THE INSTITUTIONAL LENDERS party hereto and as defined in the Facility Agreement
referenced below as an institutional lender, (each a “Lender”, together the “Lenders”);
	 
	(3)	 	EACH OF THE LENDER AGENTS party hereto and as defined in the Facility Agreement referenced
below as a lender agent (each a “Lender Agent” and together the “Lender Agents”);
	 
	(4)	 	EACH OF THE INSTITUTION LENDERS party hereto and as defined in the Facility Agreement
referenced below as a swingline lender, (each, a “Swingline Lender” and together the “Swingline
Lenders”);
	 
	(5)	 	EACH OF THE SWINGLINE LENDER AGENTS party hereto and as defined in the Facility Agreement
referenced below as a swingline lender agent, (each a “Swingline Lender Agent” and together the
“Swingline Lender Agents”);
	 
	(6)	 	CAPITALSOURCE FINANCE LLC, as the servicer (the “Servicer”);
	 
	(7)	 	CAPITALSOURCE EUROPE LIMITED (“CSEL”), a company incorporated in England and Wales, as a
Subservicer (together with its successors and assigns in such capacity, a “Subservicer”) as the
parent company of CS Europe Finance Limited, in such capacity, a “Parent”) and as the Original
Subordinated Creditor;
	 
	(8)	 	CAPITALSOURCE (UK) LIMITED, a company incorporated in England and Wales, as parent company of
CS UK Finance Limited (in such capacity, a “Parent”);
	 
	(9)	 	WACHOVIA BANK, N.A., as the administrative agent, (the “Administrative Agent”) and as the
security trustee to the Secured Parties (together with its successors and assigns in such capacity,
the “Security Trustee”); and
	 
	(10)	 	WACHOVIA SECURITIES INTERNATION LTD., as lead arranger (the “Lead Arranger”) and sole
bookrunner (the “Sole Bookrunner”).




WHEREAS,





	 	(A)	 	Pursuant to the terms of a multicurrency facility agreement dated 3 October 2007, as
amended on 24 September 2008, 10 February 2009 and 29 May 2009, the Lenders have agreed to
provide a €250,000,000 credit facility to the Borrowers (the “Facility Agreement”).




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	 	(B)	 	Pursuant to the terms of a servicing agreement dated 3 October 2007 as amended on 24 September
2008 and 29 May 2009 (the “Servicing Agreement”), the Borrowers have appointed CapitalSource
Finance LLC as Servicer to service the Loans and to enforce the Borrowers’ rights and interests in
and under each Loan.
	 
	 	(C)	 	The parties hereto agree to amend the Servicing Agreement on the terms and subject to the
conditions set forth herein.




IT IS AGREED as follows:





	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Deed:
	 
	 	 	“Deemed Effective Date” means 31 December 2009.
	 
	 	 	“Effective Date” means 24 February 2010.
	 
	1.2	 	Defined terms
	 
	 	 	Terms defined in the Facility Agreement and the Servicing Agreement shall have the same meaning in
this Deed.
	 
	1.3	 	Incorporation of Clauses 1.2 to 1.3 (inclusive) of the Facility Agreement.
	 
	 	 	Clauses 1.2 to 1.3 (inclusive) of the Facility Agreement shall be incorporated by reference into
this Deed and shall apply as if expressly set out herein.
	 
	1.4	 	Conduit Lender
	 
	 	 	It is noted that as at this date, there is no Conduit Lender which is party to the Amended
Servicing Agreement. Given that the Amended Servicing Agreement is being amended by all the current
parties thereto, the amendments shall be binding on any future party which adheres to this document
in the future (including any future Conduit Lender).
	 
	1.5	 	Effective Date and Deemed Effective Date
	 
	 	 	This Deed shall come into effect on the Effective Date but the parties acknowledge and agree that
the amendment to the Servicing Agreement shall be deemed to have taken effect as of the Deemed
Effective Date. 
	 
	2.	 	AMENDMENTS
	 
	2.1	 	Amendment to the Servicing Agreement:
	 
	 	 	The parties to this Deed acknowledge and agree that the Servicing Agreement shall be deemed to have
been amended as follows as from the Deemed Effective Date:






	 	(a)	 	the definition of “Consolidated Tangible Net Worth” shall be deleted in its entirety
and replaced by the following:




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	 	 	 	““Consolidated Tangible Net Worth” means, as of any date of determination, with respect to
CapitalSource Inc., (A) to the extent the Credit Agreement is in effect, the definition of
“Consolidated Tangible Net Worth” as set forth in such Credit Agreement, and (B) in all other
cases, the assets less the liabilities of CapitalSource Inc. and its Consolidated Subsidiaries, the
CapitalSource Bank Entities and each Healthcare REIT Consolidated Subsidiary, less intangible
assets (including goodwill), less loans or advances to stockholders, directors, officers or
employees, all determined in accordance with GAAP.”
	 
	 	(b)	 	the definition of “Minimum Consolidated Tangible Net Worth” shall be deleted in its
entirety and replaced by the following:
	 
	 	 	 	““Minimum Consolidated Tangible Net Worth” means (i) $1,725,000,000, plus (ii) 70% of the cumulative
Net Proceeds of Capital Stock/Conversion of Debt received at any time after 24 February 2010.”






	2.2	 	Clause 1.2.1(j) of the Facility Agreement shall be incorporated by reference into this Deed
such that any references to the Servicing Agreement therein shall include the amendments made
thereto in this Deed.
	 
	3.	 	REPRESENTATIONS
	 
	3.1	 	The representations and warranties set out in Clause 16.1 (Representations and Warranties) in
the Facility Agreement as amended on this date are deemed to be repeated by the Borrower on the
Effective Date.
	 
	3.2	 	The representations and warranties set out in Clause 9 (Representations, Warranties and
Undertakings of the Servicer and Parents) in the Servicing Agreement as amended on this date are
deemed to be repeated by the Servicer and by each Parent on the Effective Date.
	 
	4.	 	CONTINUITY AND FURTHER ASSURANCE
	 
	4.1	 	Continuing obligations
	 
	 	 	The provisions of the Servicing Agreement shall, save as amended by this Deed, continue in full
force and effect.
	 
	4.2	 	Further assurance
	 
	 	 	Each Borrower shall, at the request of the Administrative Agent and at its own expense, do all such
acts and things necessary or desirable to give effect to the amendments effected or to be effected
pursuant to this Deed.
	 
	5.	 	FEES, COSTS AND EXPENSES
	 
	 	 	The Borrowers shall promptly on demand pay the Administrative Agent the amount of all costs and
expenses (including legal fees) reasonably incurred by it in connection with the negotiation,
preparation, printing and execution of this Deed and any other documents referred to in this Deed.




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	6. MISCELLANEOUS
	 
	6.1	 	Incorporation of terms
	 
	 	 	The provisions of Clause 29 (Notices), Clause 32 (Partial Invalidity), Clause 33 (Remedies and
waivers), Clause 37 (Enforcement), and Clause 38 (Service of Process) of the Facility Agreement
shall be incorporated into this Deed amended as if set out in full in this Deed.
	 
	6.2	 	Counterparts
	 
	 	 	This Deed may be executed in any number of counterparts, and this has the same effect as if the
signatures on the counterparts were on a single copy of this Deed.
	 
	7. GOVERNING LAW
	 
	 	 	This Deed is governed by English law.
	 
	8. COUNTERPARTS
	 
	 	 	This Deed may be executed in any number of counterparts, and this has the same effect as if the
signatures on the counterparts were on a single copy of the Deed.






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IN WITNESS whereof this Deed has been executed and delivered on the date shown at the top of
this document.



	 	 	 	 	 	 	 	 
	The Borrowers
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EXECUTED AND DELIVERED as a DEED
	 	 	)	 	 	 
	For and on behalf of CS EUROPE FINANCE
	 	 	)	 	 	 
	LIMITED by its duly appointed
	 	 	)	 	 	 
	 
	Attorney
	 	 	 	 	 	 
	 
	By:  
	/s/ Giles Coates	 	 	 	 	 
	Name: Giles Coates
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Title: Authorized Signatory
	 	 	 	 	 	 
	In the presence of:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Signature
of Witness: /s/ Rosanne Willging
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Name of Witness: Rosanne Willging



4445 Willard Avenue, 12th F1

Chevy Chase, MARYLAND 20815 





	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EXECUTED AND DELIVERED as a DEED
	 	 	)	 	 	 
	For and on behalf of CS UK FINANCE LIMITED
	 	 	)	 	 	 
	by it’s duly appointed Attorney
	 	 	)	 	 	 
	 
	 	 	 	 	 	 
	By: 
	/s/ Giles Coates	 	 	 	 	 
	Name: Giles Coates
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Title: Authorized Signatory
	 	 	 	 	 	 
	In the presence of:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Signature
of Witnes: /s/ Rosanne Willging
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Name of Witness: Rosanne Willging



4445 Willard Avenue, 12th F1

Chevy Chase, MARYLAND 20815 


	 	 	 	 	 	 





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	The Administrative Agent and the Security Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	Executed and delivered as a Deed by:	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	/s/
Raj Shah
	 	 	)	 	 	 
	 	 	 	)	 	 	 
	Name:
	 	Raj Shah, Managing Director	 	 	)	 	 	 
	 

	 	 

	 	 	

	 	 	 
	Director/Authorised Signatory for and on behalf of	 	 	)	 	 	 
	WACHOVIA BANK, N.A. in the presence of:	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature of Witness:
/s/ Matt Jensen	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name of Witness: Matt Jensen



301 S. College Street

Charlotte, NC 28288


	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	The Institutional Lender	 	 	 	 	 	 
	 
	Executed and delivered as a Deed by:	 	 	)	 	 	 
	/s/
Raj Shah
	 	 	)	 	 	 
	 	 	 	)	 	 	 
	Name:
Raj Shah, Managing Director
	 	 	)	 	 	 
	 

	 	 

	 	 	 	 	 	 
	Director/Authorised Signatory for and on behalf of	 	 	)	 	 	 
	WACHOVIA BANK, N.A. in the presence of:	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature of Witness:
/s/ Matt Jensen	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name of Witness: Matt
Jensen




301 S. College Street

Charlotte, NC 28288

	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	The Swingline Lender	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Executed and delivered as a Deed by:	 	 	)	 	 	 
	/s/
Raj Shah
	 	 	)	 	 	 
	 	 	 	)	 	 	 
	Name:
Raj Shah, Managing Director
	 	 	)	 	 	 
	 

	 	 

	 	 	 	 	 	 
	Director/Authorised Signatory for and on behalf of	 	 	)	 	 	 
	WACHOVIA BANK, N.A., LONDON	 	 	)	 	 	 
	BRANCH in the presence of:	 	 	)	 	 	 
	BRANCH in the presence of:	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature of Witness:
/s/ Matt Jensen	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name of Witness: Matt
Jensen


301 S. College Street

Charlotte, NC 28288

	 	 	 	 	 	 






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	Lender Agent	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Executed and delivered as a Deed by:	 	 	)	 	 	 
	 
	 	 	 	 	)	 	 	 
	/s/ Raj Shah
	 	 	)	 	 	 
	 	 	 	)	 	 	 
	Name:
	 	Raj Shah, Managing Director	 	 	)	 	 	 
	 

	 	 

	 	 	 	 	 	 
	Director/Authorised Signatory for and on behalf of	 	 	)	 	 	 
	WACHOVIA BANK, N.A. in the presence of:	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature of Witness:
/s/ Matt Jensen	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name of Witness: Matt
Jensen



301 S. College Street

Charlotte, NC 28288


	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Swingline Lender Agent	 	 	)	 	 	 
	Executed and delivered as a Deed by:	 	 	)	 	 	 
	/s/ Raj Shah
	 	 	)	 	 	 
	 	 	 	)	 	 	 
	Name:
	 	Raj Shah, Managing Director	 	 	)	 	 	 
	 

	 	 

	 	 	 	 	 	 
	Director/Authorised Signatory for and on behalf of	 	 	)	 	 	 
	WACHOVIA BANK, N.A. in the presence of:	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 

	 	 	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature of Witness:
/s/ Matt Jensen	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name of Witness: Matt Jensen



301 S. College Street

Charlotte, NC 28288


	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Lead Arranger and Sole Bookrunner	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Executed and delivered as a Deed by:	 	 	)	 	 	 
	/s/ Walter Dolhare
	 	 	)	 	 	 
	 	 	 	)	 	 	 
	Name:
	 	Walter Dolhare	 	 	)	 	 	 
	 

	 	 

	 	 	)	 	 	 
	Director/Authorised Signatory for and on behalf of	 	 	)	 	 	 
	WACHOVIA SECURITIES	 	 	)	 	 	 
	INTERNATIONAL LTD in the presence of:	 	 	)	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature of Witness:
/s/ Matt Jensen	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name of Witness: Matt
Jensen



301 S. College Street

Charlotte, NC 28288


	 	 	 	 	 	 






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	The Parent and Subservicer

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EXECUTED AND DELIVERED as a DEED

	 	 	)	 	 	 
	For and on behalf of CAPITALSOURCE

	 	 	)	 	 	 
	EUROPE LIMITED by its duly appointed Attorney

	 	 	)	 	 	 
	 
	 	 	 	 	 	 
	By:  
	/s/ Giles Coates	 	 	 	 	 
	Name: Giles Coates
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Title: Authorized Signatory
	 	 	 	 	 	 
	In the presence of:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Signature
of Witness: /s/ Rosanne Willging
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Name of Witness: Rosanne Willging



4445 Willard Avenue, 

12th Floor

Chevy Chase, Maryland 20815 



	 	 	 	 	 
	 
	 	 	 	 	 	 
	The Servicer
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EXECUTED AND DELIVERED as a DEED

	 	 	)	 	 	 
	For and on behalf of CAPITALSOURCE

	 	 	)	 	 	 
	FINANCE LLC by its duly appointed Attorney

	 	 	)	 	 	 
	 
	 	 	 	 	 	 
	By:  
	/s/ Giles Coates	 	 	 	 	 
	Name: Giles Coates
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Title: Authorized Signatory
	 	 	 	 	 	 
	In the presence of:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Signature of Witness: /s/ Rosanne Willging
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Name
of Witness: Rosanne Willging



4445 Willard Avenue, 

12th Floor

Chevy Chase, Maryland 20815 



	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	The Parent
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EXECUTED AND DELIVERED as a DEED

	 	 	)	 	 	 
	For and on behalf of CAPITALSOURCE (UK)

	 	 	)	 	 	 
	LIMITED by its duly appointed Attorney

	 	 	)	 	 	 
	 
	 	 	 	 	 	 
	By:  
	/s/ Giles Coates	 	 	 	 	 
	Name: Giles Coates
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Title: Authorized Signatory
	 	 	 	 	 	 
	In the presence of:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Signature
of Witness: /s/ Rosanne Willging
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Name of Witness: Rosanne Willging



4445 Willard Avenue, 

12th Floor

Chevy Chase, Maryland 20815 



	 	 	 	 	 







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