exv10w8w4



 






Exhibit 10.8.4

EXECUTION
COPY




AMENDMENT NO. 4 TO

LOAN CERTIFICATE AND SERVICING AGREEMENT



     THIS AMENDMENT NO. 4 TO LOAN CERTIFICATE AND SERVICING AGREEMENT, dated as
of February 26, 2004 (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 CAPITAL MARKETS, LLC, (f/k/a Wachovia Securities, Inc.), a
Delaware corporation (together with its successors and assigns, “WCM”),
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”);



     (5) WELLS FARGO BANK, NATIONAL ASSOCIATION, successor by merger to 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”); and



     (6) WACHOVIA
BANK, NATIONAL ASSOCIATION (“Wachovia”), as hedge
counterparty (together with its successors and assigns in such capacity, the
“Hedge Counterparty”), solely for purposes of acknowledging and agreeing
to the terms and provisions hereof.



     Capitalized terms used but not defined herein are used as defined in the
Agreement (defined below).



R E C I T A L S




     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,
Amendment No. 2 to Loan Certificate and Servicing Agreement dated as of June
30, 2003 and Amendment No. 3 to Loan Certificate and Servicing Agreement dated
as of August 27, 2003 (as further amended, supplemented, modified or restated
from time to time, the “Agreement”); and



 









 





     WHEREAS, the parties hereto desire to amend the Agreement as provided
herein;



     NOW THEREFORE, based on 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
intending to be legally bound hereby agree as follows:



     Section 1. Amendment.



     The following definition in Section 1.1 of the Agreement is hereby
amended and restated in its entirety as follows:



	 
	Facility Termination Date: April 27, 2004, or such later date as
the Administrative Agent
and the Purchaser Agent, in its sole discretion, shall notify the Seller
of in writing.








     Section 2. Representations. The Seller, the Originator and the
Servicer (collectively, the “CapitalSource Parties”) each (as to itself
only) hereby represents and warrants as of the date of this Amendment as
follows: (i) it is duly incorporated or organized, validly existing and in good
standing under the laws of its jurisdiction of organization; (ii) the
execution, delivery and performance by it of this Amendment are within its
powers, have been duly authorized, and do not contravene (A) its articles of
organization, operating agreement, or other organizational documents, or (B)
any Applicable Law; (iii) no consent, license, permit, approval, vote,
authorization, registration, filing or declaration with any Governmental
Authority or any other Person, is required in connection with the execution,
delivery, performance, validity or enforceability of this Amendment by or
against it; (iv) this Amendment has been duly authorized, executed and
delivered by it; (v) this Amendment constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity; (vi) the
execution and delivery of this Amendment does not diminish or reduce its
obligations under the Agreement and the other Transaction Documents in any
manner except as specifically set forth herein, (vii) such CapitalSource Party
has no claims, counterclaims, offsets, or defenses to the Aggregate Unpaids
under the Agreement and the other Transaction Documents and the performance of
its obligations thereunder, or if such CapitalSource Party has any such claims,
counterclaims, offsets, or defenses to the Aggregate Unpaids under the
Agreement and the other Transaction Documents, the same are hereby waived,
relinquished and released in consideration of the Administrative Agent’s and
the Secured Parties’ execution and delivery of this Amendment, (viii) it is not
in default under the Agreement; (ix) the representations and warranties of the
CapitalSource Parties set forth in Sections 4.1, 4.2 and
4.3 of the Agreement are true and correct as of the date hereof (except
those that expressly relate to an earlier date) and all of the provisions of
the Agreement and the other Transaction Documents, except as amended hereby,
are in full force and effect, and (x) subsequent to the execution and delivery
of this Amendment and after giving effect hereto, no unwaived event has
occurred and is continuing which constitutes an Unmatured Termination Event or
a Termination Event.



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     Section 3. Liens. Each CapitalSource Party affirms the Liens and
security interests created and granted by it in the Agreement and the other
Transaction Documents and agrees that this Amendment shall in no manner
adversely affect or impair such Liens and security interests.



     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.



     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



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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]




 









 







	 	 	 
	VFCC:


Commitment:


$115,000,000	 	
VARIABLE FUNDING CAPITAL

CORPORATION


By: Wachovia Capital Markets, LLC, as attorney-in-fact
	 	 	
By: /s/ Douglas R. Wilson, SR.

Name: Douglas R. Wilson, SR.

Title: Vice President
	 	 	
Variable Funding Capital Corporation

c/o Wachovia Capital Markets, LLC

One Wachovia Center, Mail Code: NC0610

Charlotte, North Carolina 28288

Attention:               Raj Shah

Facsimile No.: (704) 383–4012

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 

THE PURCHASER AGENT:
	 	WACHOVIA CAPITAL MARKETS, LLC 






By: /s/ Russell C. Albers

Name: Russell C. Albers

Title: Director




Wachovia Capital Markets, LLC

One Wachovia Center, Mail Code: NC0610

Charlotte, North Carolina 28288

Attention: Raj Shah

Facsimile No.: (704) 383–4012

Confirmation No.: (704) 383-9343



[Signatures Continued on the Following Page]



 









 





	 	 	 
	THE BACKUP SERVICER:	 	
WELLS FARGO BANK, NATIONAL

ASSOCIATION, successor by merger to Wells

Fargo Bank Minnesota, National

Association, not in its individual

capacity but solely as Backup Servicer
	 	 	
By: /s/ Jeanine C. Casey

Name: Jeanine C. Casey

Title: Corporate Trust Officer
	 	 	
Wells Fargo Bank, 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, NATIONAL

ASSOCIATION, successor by merger to Wells

Fargo Bank Minnesota, National

Association, not in its individual

capacity but solely as Collateral

Custodian
	 	 	
By: /s/ Jeanine C. Casey

Name: Jeanine C. Casey

Title: Corporate Trust Officer
	 	 	
Wells Fargo Bank, 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







 









 






	 	 	 
	HEDGE COUNTERPARTY:	 	
WACHOVIA BANK, NATIONAL ASSOCIATION
	 	 	
By: /s/ Paul A. Burkhart

Name: Paul A. Burkhart

Title: Vice President
	 	 	
Wachovia Bank, National Association

One Wachovia Center, Mail Code: NC0610

Charlotte, North Carolina 28288

Attention: Raj Shah

Facsimile No.: (704) 383–4012

Confirmation No.: (704) 374–4230
	 	 	
with a copy to:
	 	 	
Wachovia Capital Markets, LLC

One Wachovia Center, Mail Code: NC0610

Charlotte, North Carolina 28288

Attention: Bill Shirley

Facsimile No.: (704) 374–3254