exv10w22w1



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Exhibit 10.22.1




     THIRD AMENDMENT, dated as of February 26, 2010 (this “Amendment”), to the Fourth Amended
and Restated Sale and Servicing Agreement dated as of June 16, 2009 (as amended by that certain
First Amendment dated as of July 14, 2009, that certain Second Amendment and Waiver dated as of
August 28, 2009, and as further amended, restated, supplemented or otherwise modified from time to
time, the “Agreement”), by and among CapitalSource Real Estate Loan LLC, 2007-A, as the seller (the
“Seller”), CSE Mortgage LLC, as the originator (the “Originator”), and as the servicer (the
“Servicer”), each of the Issuers from time to time party thereto (collectively, the “Issuers”),
each of the Liquidity Banks from time to time party thereto (collectively, the “Liquidity Banks”),
Citicorp North America, Inc., as the administrative agent for the Issuers and Liquidity Banks
thereunder (the “Administrative Agent”), and Wells Fargo Bank, National Association, not in its
individual capacity but as the backup servicer (the “Backup Servicer”), and not in its individual
capacity but as the collateral custodian (the “Collateral Custodian”). Terms not otherwise defined
in this Amendment shall have the meanings set forth in the Agreement.



     The parties hereto desire to amend certain provisions of the Agreement in the manner provided
herein.



     Accordingly, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:



     Section 1. Amendments to the Agreement. Effective as of the Effective Date, the
Agreement is hereby amended as follows:




     (i) the following new definitions are added to Section 1.1 thereof in proper
alphabetical order:




“CapitalSource Convertible Bonds”: The 3.5% Senior Convertible Debentures
due 2034 and the 4.0% Senior Subordinated Convertible Debentures due 2034
issued by CapitalSource Inc., including any refinancing or reissuance
thereof.




“CapitalSource
Convertible Bond Put Date”: The earlier of (i) the
maturity date (as such may be accelerated) of either of the
CapitalSource Convertible Bonds (provided, that this clause (i)
shall not be triggered as a result of an exchange offer, tender
offer, purchase on the open market or other refinancing with respect
to either of the CapitalSource Convertible Bonds) or (ii) the
date on which any of the holders of either of the CapitalSource
Convertible Bonds may require CapitalSource Inc. to repurchase,
retire or redeem all or any portion of either of the CapitalSource
Convertible Bonds.




“Third Amendment Effective Date”: February 26, 2010.




     (ii) the definition of “Consolidated Tangible Net Worth” in Section 1.1 thereof
is deleted and replaced with the following:




“Consolidated Tangible Net Worth”: As of any date of determination, the
GAAP assets less the liabilities of CapitalSource Inc., 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.




     (iii) the definition of “Maximum Advance Rate” in Section 1.1 thereof is
deleted and replaced with the following:




“Maximum Advance Rate” As of (i) the Payment Date occurring in May
2010, after giving effect to all amounts applied on such date, equals 27.2%
of the Aggregate Outstanding Asset Balance on such date, (ii) the Payment
Date occurring in August 2010, after giving effect to all amounts applied on
such date, equals 23.6% of the Aggregate Outstanding Asset Balance on such
date, (iii) the



 









 






Payment Date occurring in November 2010, after giving effect to all amounts
applied on such date, equals 19.8% of the Aggregate Outstanding Asset
Balance on such date and (iv) the Payment Date occurring in February 2011,
after giving effect to all amounts applied on such date, equals 18.4% of the
Aggregate Outstanding Asset Balance on such date.




     (iv) the definition of “Termination Event” in Section 1.1 thereof is amended by
replacing the text “10.1(y) or 10.1(z)” appearing therein with the
text “10.1(y), 10.1(z) or 10.1(aa)”.




     (v) the definition of “TNW Test Level” in Section 1.1 thereof is deleted and
replaced with the following:




“TNW Test Level”: The greater of (A) sum of (i) $1,725,000,000, plus (ii)
70% of the cumulative Net Proceeds of Capital Stock/Conversion of Debt
received at any time after February 24, 2010, and (B) the covenant level for
“Minimum Consolidated Tangible Net Worth” set forth under any of the Other
CapitalSource Facilities, including Section 5.32(c) of the Credit Agreement
(or any replacement provision thereunder).




     (vi) Section 2.13 thereof is deleted and replaced with the following:




“On the first Payment Date following the Termination Date when the Class A
Advances Outstanding is less than 5% of the Class A Advances Outstanding as
of the Termination Date (the “5% Date”), the Seller shall notify the
Administrative Agent in writing of its intention to purchase all remaining
Collateral. On the earlier of (a) the Payment Date next succeeding the 5%
Date or (b) the date (such date being June 30, 2011 as of the Third
Amendment Effective Date) that is ten (10) Business Days prior to the
CapitalSource Convertible Bond Put Date, the Seller shall (i) terminate all
Hedge Transactions in accordance with their terms and (ii) purchase all
remaining Collateral for a price equal to the Aggregate Unpaids and the
proceeds of such purchase will be deposited into the Collection Account and
paid in accordance with Section 2.10.”




     (vii) Section 10.1 thereof is amended by (i) changing the designation of clause
“(z)” to “(aa)” and (ii) inserting the following new clause “(z)”:




“(z) as of any Payment Date specified in the definition of Maximum Advance
Rate, the ratio (expressed as a percentage) of the aggregate amount of
Advances Outstanding divided by the Aggregate Outstanding Asset Balance (in
each case, after giving effect to all amounts applied on such date) exceeds
the Maximum Advance Rate and the same continues unremedied for two Business
Days; or”.



     Section 2. Representations and Warranties of the Seller and the Servicer.



     Each of the Seller and the Servicer, jointly and severally, hereby represents and warrants as
of the date hereof as follows (which representations and warranties shall survive the execution and
delivery of this Amendment):




     (i) The representations and warranties of each of the Seller and the Servicer
set forth in the Agreement are true and correct on and as of such date, after giving
effect to this Amendment, as though made on and as of such date;



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     (ii) Following the effectiveness of this Amendment, no event has occurred and
is continuing which constitutes a Termination Event or Unmatured Termination Event;




     (iii) Each of the Seller and the Servicer is in compliance with each of its
covenants and agreements set forth in the Transaction Documents; and




     (iv) This Amendment has been duly executed and delivered by the Seller and the
Servicer and constitutes the legal, valid and binding obligation of the Seller and
Servicer, and is enforceable in accordance with its terms subject (x) as to
enforcement of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforcement of creditors’ rights
generally, from time to time in effect, and (y) to general principles of equity.



     Section 3. Effective Date; Continued Effectiveness; Governing Law; Counterparts.



     (a) This Amendment shall become effective as of the time and date (the “Effective Date”) when:




     (i) the Administrative Agent shall have received a counterpart of this
Amendment, duly executed and delivered on behalf of each of the parties hereto;




     (ii) the Administrative Agent shall have received (i) duly executed
counterparts of the fee letter dated as of the date hereof among the parties hereto
regarding the payment of certain amendment fees on the date hereof (the “Fee
Letter”) and (ii) payment of the Amendment Fee (as defined in the Fee Letter);




     (iii) the Advances Outstanding shall have been reduced to an amount equal to or
less than $123,470,625; and




     (iv) the Originator shall have paid all outstanding fees and expenses of
counsel to the Administrative Agent.



     (b) Nothing herein shall be deemed to be a waiver of any covenant, or agreement contained in,
or any Termination Event or Unmatured Termination Event under the Agreement and each of the parties
hereto agrees that all other covenants and agreements and other provisions contained in the
Agreement and the other Transaction Documents as modified by this Amendment shall remain in full
force and effect from and after the date of this Amendment.



     (c) THIS AMENDMENT, AND THE AGREEMENT AS AMENDED BY THE AMENDMENT, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE
OF LAW PROVISIONS THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK).



     (d) This Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts (including by facsimile or by electronic mail in portable document
format (pdf)), each of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.



[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 REAL ESTATE LOAN LLC, 2007-A
	 
	 	 	 	 
	 

	 	By:
	 	/S/ JEFFREY A. LIPSON
	 

	 	 	 	 
	 

	 	Name:
	 	Jeffrey A. Lipson
	 

	 	Title:
	 	Senior Vice President and Treasurer
	 
	 	 	 	 
	THE ORIGINATOR AND SERVICER:	 	CSE MORTGAGE LLC
	 
	 	 	 	 
	 

	 	By:
	 	/S/ JEFFREY A. LIPSON
	 

	 	 	 	 
	 

	 	Name:
	 	Jeffrey A. Lipson
	 

	 	Title:
	 	Senior Vice President and Treasurer






[Signatures Continued on the Following Page]






 









 








	 	 	 	 	 
	ISSUER:	 	CHARTA, LLC,
in its capacity as an Issuer
	 
	 	 	 	 
	 	 	By: Citibank, N.A., as Attorney-in-Fact
	 
	 	 	 	 
	 

	 	By:	 	/s/ GERALD F. KEEFE
	 

	 	 	 	 
	 

	 	Name:	 	Gerald F. Keefe
	 

	 	 	 	 
	 

	 	Title:	 	Authorized Signatory
	 

	 	 	 	 
	 
	 	 	 	 
	ISSUER:	 	CAFCO, LLC,
in its capacity as an Issuer
	 
	 	 	 	 
	 	 	By: Citibank, N.A., as Attorney-in-Fact
	 
	 	 	 	 
	 

	 	By:	 	/s/ GERALD F. KEEFE
	 

	 	 	 	 
	 

	 	Name:	 	Gerald F. Keefe
	 

	 	 	 	 
	 

	 	Title:	 	Authorized Signatory
	 

	 	 	 	 





[Signatures Continued on the Following Page]






 









 








	 	 	 	 	 
	LIQUIDITY BANK:	 	CITIBANK, N.A.,
in its capacity as a Liquidity Bank
	 
	 	 	 	 
	 

	 	By:	 	/s/ GERALD F. KEEFE 
	 

	 	 	 	 
	 

	 	Name:	 	Gerald F. Keefe 
	 

	 	 	 	 
	 

	 	Title:	 	Authorized Signatory 
	 

	 	 	 	 
	 
	 	 	 	 
	THE ADMINISTRATIVE AGENT	 	CITICORP NORTH AMERICA, INC.
	 
	 	 	 	 
	 

	 	By:	 	/s/ GERALD F. KEEFE 
	 

	 	 	 	 
	 

	 	Name:	 	Gerald F. Keefe 
	 

	 	 	 	 
	 

	 	Title:	 	Authorized Signatory