Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 5 TO THE
BRIDGE LOAN AGREEMENT
Dated as of April 9,
2009
AMENDMENT NO. 5 TO THE BRIDGE
LOAN AGREEMENT (this
“ Amendment ”) among Capmark Financial Group
Inc., a Nevada corporation (the “ Company ”),
the financial institutions and other institutional lenders party
hereto, and Citicorp North America, Inc., as administrative
agent (the “ Agent ”) for the
Lenders.
RECITALS:
(1)
The Company, the financial institutions and other institutional
lenders party thereto (the “ Lenders ”), the
Agent and the other agents party thereto have entered into that
certain Bridge Loan Agreement dated as of March 23, 2006, as
amended by Amendment No. 1 to the Bridge Loan Agreement dated
as of December 7, 2006, Amendment No. 2 to the Bridge
Loan Agreement dated as of June 30, 2008, Amendment
No. 3 to the Bridge Loan Agreement dated as of March 23,
2009 and Amendment No. 4 to the Bridge Loan Agreement dated as
of March 24, 2009 (as further amended, supplemented or
otherwise modified, the “ Bridge Loan Agreement
”). Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified in the Bridge Loan
Agreement.
(2)
The Company has requested that the Lenders agree to extend the
Maturity Date of the Loans under the Bridge Loan Agreement (any
such Lender agreeing to so extend, an “ Extending
Lender ”) as hereinafter set forth.
(3)
Pursuant to subsection 9.1(a) of the Bridge Loan Agreement,
the Majority Lenders may, or, with the written consent of the
Majority Lenders, the Agent may, from time to time, enter into with
the Company, written amendments, supplements or modifications to
the Bridge Loan Agreement for the purpose of adding any provisions
to the Bridge Loan Agreement or changing in any manner the rights
of the Lenders or of the Company under the Bridge Loan
Agreement.
(4)
Pursuant to subsection 9.1(y)(i) of the Bridge Loan Agreement,
no amendment to the Bridge Loan Agreement shall extend the
scheduled date of any payment of any Loan without the consent of
each Lender directly affected thereby.
(5)
The Majority Lenders and the Extending Lenders have agreed, subject
to the terms and conditions stated below, to amend the Bridge Loan
Agreement as hereinafter set forth.
SECTION 1.
AMENDMENTS TO BRIDGE LOAN AGREEMENT
The Bridge Loan
Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in
Section 2, hereby amended as follows:
(a)
Section 1.01 of the Bridge Loan Agreement is hereby amended by
inserting in alphabetical order a new definition to read as
follows:
“
Amendment No. 5 ”: Amendment No. 5 to the
Agreement, dated as of April 9, 2009, among the Company, the
Lenders party thereto and the Agent.
“ Amendment No. 5
Effective Date ”: the date of effectiveness of Amendment
No. 5 in accordance with the terms thereof.
“ Amendment No. 5
Extending Lender ”: an “Extending Lender” (as
defined in Amendment No. 5).
“ Non-Extending Lenders
” means Amendment No. 3 Non-Extending Lenders and
Amendment No. 4 Non-Extending Lenders.
(b)
The definition of “Maturity Date” set forth in
Section 1.01 of the Bridge Loan Agreement is hereby amended
and restated in its entirety to read as follows:
“ Maturity Date ”
means (x) with respect to any Loans and Commitments held by
Amendment No. 3 Non-Extending Lenders on the Amendment
No. 3 Effective Date, March 23, 2009, (y) with
respect to any Loans and Commitments held by Amendment No. 4
Non-Extending Lenders on the Amendment No. 4 Effective Date,
March 24, 2009, and (z) with respect to any Loans and
Commitments held by Amendment No. 5 Extending Lenders on the
Amendment No. 5 Effective Date, April 20,
2009.
(c)
The undersigned agree that the Bridge Loan Agreement is deemed to
be amended to make any modifications to the applicable payment, pro
rata and sharing provisions of the Bridge Loan Agreement needed in
connection with effecting the changes to maturities effected
hereby.
(d)
The Company agrees that until April 20, 2009 it shall not
make, or cause to be made, any repayment in respect of the
Loans.
(e)
Until April 20, 2009, the Majority Lenders hereby
waive any Event of Default arising directly from the
Company’s failure to repay in full the principal amount of,
and interest on, the Loans of any Non-Extending Lenders on the
applicable Maturity Date for such Loans (such event being the
“ Non-Payment Event of Default ”).
Further, until April 20, 2009, the Majority Lenders hereby
agree to forbear (and instruct the Agent to
forbear) from exercising any right or remedy under the
Bridge Loan Agreement as a result of the occurrence and continuance
of an Event of Default arising from the Non-Payment Event of
Default.
(f)
From the date hereof until April 20, 2009, notwithstanding the
provisions of Section 9.6 of the Bridge Loan
Agreement, no Lender shall be permitted to (i) assign or
otherwise transfer to one or more Assignees all or a portion of its
rights or obligations under the Bridge Loan Agreement or
(ii) sell participations to one or more Participants in all or
a portion of its rights or obligations under the Bridge Loan
Agreement, in each case pursuant to Section 9.6 of the Bridge
Loan Agreement.
SECTION 2.
CONDITIONS OF EFFECTIVENESS
This Amendment
shall become effective as of the date first above written when, and
only when, the following conditions have been
satisfied:
(a)
the Agent shall have received counterparts of this Amendment
executed by the Company, the Majority Lenders, the Extending
Lenders, and/or, as to any such Majority Lender and Extending
Lender, advice satisfactory to the Agent that such Lender has
executed this Amendment;
(b)
the Agent shall have received a certificate of the Secretary or
Assistant Secretary of the Company, in form and substance
satisfactory to the Agent, which certificate shall (i) certify
as to the incumbency and signature of the officers of the Company
executing this Amendment (with the President, a Vice President, the
Secretary or Assistant Secretary of the Company attesting to the
incumbency and
2
signatu
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