Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 8 AND WAIVER
TO THE BRIDGE LOAN AGREEMENT
Dated as of May 21,
2009
AMENDMENT NO. 8 AND WAIVER TO THE
BRIDGE LOAN AGREEMENT (this “ Amendment and Waiver
”) 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, Amendment No. 4 to the Bridge Loan Agreement dated as of
March 24, 2009, Amendment No. 5 to the Bridge Loan
Agreement dated as of April 9, 2009, Amendment No. 6 and
Waiver to the Bridge Loan Agreement dated as of
April 20, 2009 and Amendment No. 7 and Waiver to the
Bridge Loan Agreement dated as of May 8, 2009 (as further
amended, supplemented or otherwise modified, the “ Bridge
Loan Agreement ”). Capitalized terms not otherwise
defined in this Amendment and Waiver have the same meanings as
specified in the Bridge Loan Agreement.
(2)
The Company has requested that the Lenders agree to (a) 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 and (b) waive
certain covenants under the Bridge Loan Agreement.
(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 AND WAIVER 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. 8
Effective Date ”: the date of effectiveness of Amendment
No. 8 and Waiver in accordance with the terms
thereof.
(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 with respect to any Loans and Commitments held on the
Amendment No. 8 Effective Date, May 29, 2009 at
5:00 p.m. EDT.
(c)
The Agent and the Majority Lenders hereby waive, solely for the
period commencing on the date hereof through May 29, 2009 at
5:00 p.m. EDT (the “ Waiver Termination Date
”), the Events of Default arising directly from the
Company’s failure to maintain, pursuant to Section 6.1
of the Bridge Loan Agreement, the Total Consolidated Indebtedness
at the last day of each of the fiscal quarters ended
December 31, 2008 and March 31, 2009 to Total
Capitalization at such dates at a ratio not greater than 0.87 to
1.0, in each case without giving effect to ARB51, FIN 46(R) or
FAS 66 in each case in relation to the Company’s affordable
tax credit syndication business (the “ Bridge Loan
Agreement Events of Default ”).
(d)
Until the Waiver Termination Date, 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 the Events of Default arising from the Bridge Loan Agreement
Events of Default.
(e)
On the Waiver Termination Date, without any further action by the
Agent and the Majority Lenders, all of the terms and provisions set
forth in the Bridge Loan Agreement with respect to any Event of
Default thereunder that is waived hereunder and not cured prior to
the Waiver Termination Date shall have the same force and effect as
if this Amendment and Waiver had not been entered into by the
parties hereto, and the Agent and the Majority Lenders shall have
all of the rights and remedies afforded to them under the Bridge
Loan Agreement with respect to any such Event of Default as though
no waiver had been granted by them hereunder. Notwithstanding
anything contained herein to the contrary, the foregoing
waivers are not intended and shall not be deemed or construed to
constitute a waiver of any Default or any other Event of Default
that hereafter may occur under the Bridge Loan Agreement or to
establish a custom or course of dealing among the Company, the
Agent, the Majority Lenders or any of them. Except as
specifically set forth herein, the Agent and the Majority Lenders
hereby expressly reserve all of their rights and remedies under the
Bridge Loan Agreement, the other Loan Agreements and applicable
law.
(f)
The Company agrees that, until the Waiver Termination Date, it
shall not make, or cause to be made, any repayment in respect of
the Loans.
(g)
From the date hereof until the Waiver Termination Date,
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.
(h)
The Company hereby agrees to negotiate in good faith with the
Agent and Lenders to finalize by no later than May 29,
2009 the amendments to the Bridge Loan Agreement and to the
Senior Credit Facility and the definitive documentation for the
“Facility” described in the commitment letters
dated on or about May 6, 2009 (together with the
Term Sheet referred to therein, the “ Commitment
Letters ”) entered into by certain Lenders and certain
lenders under the Senior Credit
