SECTION 1.            AMENDMENTS TO CREDIT AGREEMENT

 

The Credit Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 3, hereby amended as follows:

 

(a)            Subsection 1.1 of the Credit Agreement is hereby amended by inserting in alphabetical order new definitions to read as follows:

 

“ 2010 Notes ”: the Company’s Floating Rate Senior Notes due 2010.

 

“ 2012 Notes ”: the Company’s 5.875% Senior Notes due 2012.

 

“ 2017 Notes ”: the Company’s 6.300% Senior Notes due 2017.

 

“ Agreement Value ”: for each Hedge Agreement, on any date of determination, an amount equal to:  (a) in the case of a Hedge Agreement documented pursuant to the Master Agreement (Multicurrency-Cross Border) published by the International Swap and Derivatives Association, Inc. (the “ Master Agreement ”), the amount, if any, that would be payable by any Loan Party or any of its Subsidiaries to its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement was being terminated early on such date of determination and (ii) such Loan Party or Subsidiary was the sole “Affected Party,”; (b) in the case of a Hedge Agreement traded on an exchange, the mark-to-market value of such Hedge Agreement, which will be the unrealized loss or gain on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement based on the settlement price of such Hedge Agreement on such date of determination; or (c) in all other cases, the mark-to-market value of such Hedge Agreement, which will be the unrealized loss or gain on such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined as the amount, if any, by which (i) the present value of the future cash flows to be paid by such Loan Party or Subsidiary exceeds or, as applicable, is less than (ii) the present value of the future cash flows to be received by such Loan Party or Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not otherwise defined in this definition shall have the respective meanings set forth in the above described Master Agreement.  For the avoidance of doubt, the foregoing definition of “Agreement Value” does not affect the rights and obligations of any such Loan Party or such Subsidiary, on one hand, and such counterparty, on the other hand, under any such Hedge Agreement, including without limitation as to the calculation of any amount pursuant to section 6 of a Master Agreement as such section has been amended or supplemented by a schedule to such Master Agreement.

 

“ Amendment No. 3 ”: Amendment No. 3 and Waiver to the Credit Agreement, dated as of May 29, 2009, among the Borrowers, the Lenders party thereto and the Agent.

 

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“ Amendment No. 3 Effective Date ”: the date of effectiveness of Amendment No. 3 in accordance with the terms thereof.

 

“ Applicable Adjustment Percentage ”: (a) for the first Fiscal Quarter ending after a Servicing Business Disposition, 95%, (b) for the second Fiscal Quarter ending after a Servicing Business Disposition, 90%, (c) for the third Fiscal Quarter ending after a Servicing Business Disposition, 85% and (d) for each Fiscal Quarter ending thereafter, 80%.

 

“ Applicable Discount ”: as defined in Exhibit A to Amendment No. 3.

 

“ Auction ”: a “Dutch” auction whereby the Company offers to purchase Loans pursuant to the auction procedures set forth in Exhibit A to Amendment No. 3.

 

“ Cash Prepayment Amount ”: as defined in Section 2.18(d).

 

“ Consolidated ”: the consolidation of accounts in accordance with GAAP.

 

“ Consolidating ”: the consolidating financial statements of the Company and its Subsidiaries which sets forth (i) the consolidated accounts of the Company and its Subsidiaries (other than any Specified Subsidiaries) and (ii) the consolidated accounts of each Specified Subsidiary and its Subsidiaries.

 

“ Equity Interests ”: with respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized on any date of determination.

 

“ ERISA Plan ”: a Single Employer Plan or a Multiple Employer Plan.

 

“ Excluded Information ”: as defined in subsection 10.7(ii).

 

“ Existing Notes ”: the 2010 Notes, the 2012 Notes and/or the 2017 Notes, as the context may require.

 

“ Fiscal Quarter ”: any fiscal quarter of any Fiscal Year, which quarter shall end on the last day of each March, June, September and December of such Fiscal Year in accordance with the fiscal accounting calendar of the Company and its Subsidiaries.

 

“ Fiscal Year ”: a fiscal year of the Company and its Subsidiaries ending on December 31, except for Subsidiaries of the Company organized in certain jurisdictions in Asia with fiscal years ending on March 31, April 30, June 30 or September 30.

 

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“ Foreign Subsidiary ”: at any time, any of the direct or indirect Subsidiaries of the Company that are organized outside of the laws of the United States, any state thereof or the District of Columbia at such time.

 

“ Initial Prepayment Lender ”: each Lender that is also a “Lender” under the Term Loan Agreement on the Amendment No. 3 Effective Date.

 

“ Liquidity Availability ”: at any time, an amount equal to the unrestricted cash and Cash Equivalents of the Company and its Subsidiaries (other than any Specified Subsidiaries or any Subsidiaries that are broker-dealers registered with the SEC and with state securities commissions in the United States under state securities laws) (which unrestricted cash and Cash Equivalents, for greater certainty, shall exclude any such property (a) held in the “Cash Collateral Account” (as defined in the Term Loan Agreement), (b) that is being held as cash collateral or that constitutes escrowed funds or (c) that is otherwise subject to a currently applicable restriction on its withdrawal or distribution to the Company or any of its Subsidiaries); provided that Liquidity Availability shall be reduced by the amount of any tax liability reasonably estimated by the Company to be incurred as a result of the repatriation from any Foreign Subsidiary of any such cash or Cash Equivalents to the Company or any of its domestic Subsidiaries, provided that no such reduction pursuant to this clause (c) shall be required with respect to any funds that are eligible to be used and that the Company intends to use to meet the liquidity needs of the Foreign Subsidiary holding such funds (not to exceed $100,000,000 in the aggregate to meet the liquidity needs of all Foreign Subsidiaries).

 

“ Liquidity Condition ”: (a) the Company and its Subsidiaries shall have maintained a Liquidity Availability of at least $450,000,000 on an average daily basis for each of the three months ending immediately prior to any utilization of the Notes Cash Basket and (b) before and after giving effect to the proposed utilization of the Notes Cash Basket, the Company shall be in compliance with subsection 6.1.

 

“ Net Cash Proceeds ”: (a) in respect of the issuance or incurrence of Indebtedness (other than Indebtedness under any Servicing Loan Facility) by any Person, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such incurrence or issuance over (ii) the underwriting discounts and commissions or other similar payments, and other out-of-pocket costs, fees, commissions, premiums and expenses incurred by such Person in connection with such incurrence or issuance to the extent that such amounts were not deducted in determining the amount referred to in clause (i); and (b) with respect to any Servicing Loan Facility, the gross cash proceeds received in connection with such Servicing Loan Facility net of attorneys’ fees, accountants’ fees, investment banking fees and other customary fees and expenses actually incurred in connection therewith and in each case directly related to such Servicing Loan Facility.

 

“ Notes Cash Basket ”: as defined in the Term Loan Agreement.

 

“ Permitted Notes Refinancing ”: the refinancing, refunding, exchange or replacement of any of the Existing Notes with Permitted Refinancing Indebtedness.

 

“ Permitted Refinancing Indebtedness ”: any Indebtedness issued or incurred in connection with the refinancing, refunding, exchange or replacement of the Existing Notes (and, to the extent that any such Indebtedness (x) is accepted by any Lenders hereunder to refinance, refund, exchange or replace Indebtedness hereunder, the Facilities or (y) is

 

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accepted by any lenders under the Bridge Facility to refinance, refund, exchange or replace the loans under the Bridge Facility, the loans under the Bridge Facility); provided that (a) no Default shall have occurred and be continuing before and after giving effect to such issuance or incurrence, (b) in connection with any such issuance or incurrence, the Lenders hereunder and the lenders under the Bridge Facility shall be offered, on a proportionate basis in accordance with the provisions of this Agreement and the Bridge Facility, as applicable, such Permitted Refinancing Indebtedness on the same terms and conditions (including, without limitation, the same security package) ( provided , however , that in connection with any payment, redemption, exchange or repurchase of the Existing Notes in which availability under the Notes Cash Basket is utilized in connection with such transaction, any such proportionate offer to the Lenders hereunder and the lenders under the Bridge Facility (i) need not include any cash payment to the Lenders hereunder or the lenders under the Bridge Facility to the extent that a cash payment is made out of the proceeds from the Notes Cash Basket (and in the event that no cash payment is made to the Lenders hereunder and the lenders under the Bridge Facility, such proportionate offer shall be determined as if no cash payment were made to the holders of the Existing Notes) and (ii) may include a cash payment to the Lenders hereunder and/or the lenders under the Bridge Facility, provided that any such cash payment to the Lenders hereunder or the lenders under the Bridge Facility shall not reduce the Notes Cash Basket), (c) no Permitted Refinancing Indebtedness shall have any scheduled or mandatory principal repayments prior to August 23, 2011 and (d) the principal amount of the Indebtedness being refinanced, refunded, exchanged or replaced shall not be increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, exchange or replacement.

 

“ Prepayment ”: as defined in Amendment No. 3.

 

“ Qualifying Lender ”: as defined in Exhibit A to Amendment No. 3.

 

“ Reply Amount ”: as defined in Exhibit A to Amendment No. 3.

 

“ Responsible Officer ”: the chief executive officer, president, senior vice president, executive vice president, vice president, chief financial officer, chief accounting officer, controller, treasurer or assistant treasurer of a Loan Party.  Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

 

“ Run Rate Operating Expense ”: for any period, an amount equal to: (a) total operating expenses of the Company and its Subsidiaries on a Consolidated basis for such period; less (b) total operating expenses of the Specified Subsidiaries on a Consolidated basis for such period (other than any such operating expenses that, (x) prior to such period, were  operating expenses of the Company or any of its Subsidiaries (other than any Specified Subsidiaries) and (y) have been migrated to the Specified Subsidiaries in connection with the implementation of any restructuring, winding down or disposition of business units or assets of the Company and its Subsidiaries or the implementation of the operating cost reduction plan of the Company); less (c) the sum of (without duplication): (i) the amount of depreciation and amortization expense and impairment charges in respect of fixed assets, mortgage servicing rights and intangible assets; (ii) non-cash expenses or charges

 

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incurred in connection with the granting of, or accretion on, options, warrants or other Equity Interests pursuant to any management or director equity plan, stock option plan or similar employee compensation arrangement; (iii) any expenses or charges directly related to the restructuring of the Existing Notes, the Bridge Facility or the Loans hereunder accounted for in such period, including the ongoing fees and expenses required to be paid to the Lenders or their advisors in connection with the restructuring of the Bridge Facility and the Loans hereunder; (iv) solely with respect to the Fiscal Quarters ended June 30, 2009, September 30, 2009, December 31, 2009 and March 31, 2010, the amount of any one-time restructuring charges, costs or other business optimization expenses directly incurred in connection with the restructuring, winding down or disposition of business units or assets outside of the ordinary course of business of the Company and its Subsidiaries or the implementation of the operating cost reduction plan of the Company (including professional fees and expenses, severance costs, contract breakage costs and costs related to the closure and/or consolidation of facilities) during such period; provided that the amount of restructuring charges, costs and expenses deducted from Run Rate Operating Expenses pursuant to this clause (iv) shall not exceed $50,000,000 in the aggregate; and (v) operating expenses of variable interest entities that are required to be Consolidated with the Company pursuant to FASB Interpretation No. 46(R), operating expenses of investment partnerships and similar entities that are required to be Consolidated with the Company pursuant to Emerging Issues Task Force Issue No. 04-5 and operating expenses of entities that are required to be Consolidated with the Company pursuant to Statement of Financial Accounting Standards No. 66 or similar accounting principles implemented by applicable accounting standards bodies after the date hereof relating to consolidation of subsidiaries; in each case of the Company and its Subsidiaries (excluding the Specified Subsidiaries) for such period; plus (c) (X) the Applicable Adjustment Percentage times (Y) the aggregate amount of operating expenses of any Servicing Business subject to a Servicing Business Disposition prior to or during such period for the portion of such period occurring after the date of such Servicing Business Disposition (determined on a pro forma basis based on the last full fiscal quarter period ending immediately prior to the date of such Servicing Business Disposition and making the adjustments, to the extent applicable, set forth in this definition of “Run Rate Operating Expense”); all as determined for such period in accordance with GAAP.

 

“ Servicing Agreement ”: any pooling and servicing agreement, trust and servicing agreement, primary servicing agreement or other similar document pursuant to which the Company or any of its Subsidiaries services mortgage loans or any mortgaged property acquired through foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in accordance with applicable law in connection with the default or imminent default of any mortgage loans, and makes Servicing Loans with respect thereto.

 

“ Servicing Business ”: the North American “servicing” segment of the Company and its Subsidiaries.

 

“ Servicing Business Disposition ”: any sale, transfer or other disposition of, or closure of the Servicing Business or any material portion thereof pursuant to any transaction or any series of related transactions (including by means of a disposition of any Person or a disposition of all or substantially all of the assets or property of such Servicing Business).

 

“ Servicing Loans ”: loans made by the Company or any of its Subsidiaries, in its respective capacity as servicer under any Servicing Agreement, in connection with the servicing and administering of any mortgage loans or any mortgaged property including

 

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but not limited to (i) loans of principal and interest payments on mortgage loans and (ii) loans of out-of-pocket costs and expenses incurred by the applicable servicer in respect of mortgage loans in which a default, delinquency or other unanticipated event has occurred or as to which a default is imminent, including, with respect to any underlying mortgaged property, advances necessary for the purpose of effecting the payment of real estate taxes, assessments and other similar items that are or may become a lien thereon, premiums on insurance policies, advances generally known as “emergency advances” or “property protection advances” under any Servicing Agreement, costs of any enforcement or judicial proceedings, maintenance and liquidation of any acquired mortgaged property, extraordinary trust fund expenses, ground rents and similar charges or assessments.

 

“ Servicing Loan Assets ”: the assets, whether now owned or hereafter acquired, of the Company and its Subsidiaries comprising (a) Servicing Loans and (b) all reimbursement rights and other amounts owing to the Company and its Subsidiaries with respect to Servicing Loans.

 

“ Servicing Loan Facility ”: any credit facility, securitization facility or other financing facility obtained by the Company or any of its Subsidiaries in connection with the financing of any Servicing Loan Assets.

 

“ Specified Servicing Loan Facility ”: the proposed Servicing Loan Facility disclosed by the Company to the “Lead Arrangers” (as defined in the Term Loan Agreement) prior to the Amendment No. 3 Effective Date, to the extent that such Servicing Loan Facility is consummated on substantially the same terms and conditions as disclosed by the Company to the “Lead Arrangers” (as defined in the Term Loan Agreement).

 

“ Specified Repayment Date ”: as defined in subsection 2.26.

 

“ Term Loan Agreement ”: as defined in Amendment No. 3.

 

“ Test Period ”: with respect to the financial covenant contained in subsection 6.1: (a) at any date of determination on or prior to June 30, 2009, the most recently completed Fiscal Quarter; (b) at any date of determination after June 30, 2009 and on or prior to September 30, 2009, the most recently completed two Fiscal Quarters of the Company ending on or prior to such date; (c) at any date of determination after September 30, 2009 and on or prior to December 31, 2009, the most recently completed three Fiscal Quarters of the Company ending on or prior to such date; and (d) at any date of determination after December 31, 2009, the most recently completed four Fiscal Quarters of the Company ending on or prior to such date.

 

(b)            The definition of “ Attributed Capitalization ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting “subsection 5.1” in the sixth line thereof and inserting “subsection 5.1(a) and (b)” in its place.

 

(c)            The definition of “ Bankruptcy Remote Special Purpose Vehicle ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Bankruptcy Remote Special Purpose Entity ”: (i) a Person that satisfies each of the following criteria: (a) such Person is an entity that is consolidated for accounting purposes with the  Company and designed to make remote the possibility that it would enter into bankruptcy or other receivership; (b) all or substantially all of such Person’s

 

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assets consist of Receivables or securities backed by Receivables plus any rights or other assets (including cash reserves) designed to assure the servicing or timely distribution of proceeds to the holders of its obligations; and (c) Receivables or securities backed by Receivables owned by such Person satisfy the legal isolation criteria set forth in paragraph 9(a) of Statement of Financial Accounting Standards No. 140 (“ FAS 140 ”) (in relation to the Company and any Subsidiary that is not a Bankruptcy Remote Special Purpose Entity) or (ii) any Subsidiary formed as a “successor borrower” in connection with any loan defeasance activities that satisfies the legal isolation requirements of FAS 140.

 

(d)            The definition of “ Canadian Revolving Credit Facility ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitments” in the third line thereof and inserting the word “Loans” in its place.

 

(e)            The definition of “ Canadian Revolving Credit Lender ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitment” in the second line thereof and inserting the word “Loan” in its place.

 

(f)             The definition of “ Cash Equivalents ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Cash Equivalents ”:

 

(a)            securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof and having maturities of not more than 12 months after the date of acquisition;

 

(b)            time deposits or certificates of deposit of (i) any bank of recognized standing having capital and surplus in excess of $5,000,000,000 or whose commercial paper rating is at least A-1 by S&P and P-1 by Moody’s and (ii) in the case of any Foreign Subsidiary of the Company, the banks listed on Schedule 1.01(c) or any other bank approved by the Agent in its sole discretion (it being understood that the Agent may revoke its approval of any such bank at any time for purposes of this clause (b), provided that any time deposits or certificates of deposits of such bank acquired by the Company or any of its Subsidiaries prior to such revocation shall continue to constitute Cash Equivalents for purposes of this Agreement), in each case having maturities of not more than six months after the date of acquisition;

 

(c)            commercial paper rated at least A-1 by S&P and P-1 by Moody’s and having maturities of not more than six months after the date of acquisition;

 

(d)            direct obligations (or certificates representing an ownership interest in such obligations) of any state of the United States (including any agency or instrumentality thereof) the long-term debt of which is rated A-3 or higher by Moody’s and A- or higher by S&P (or rated the equivalent by at least one nationally recognized statistical rating organization) and having maturities of not more than six months after the date of acquisition; and

 

(e)            in the case of any Foreign Subsidiary of the Company, investments (i) in direct obligations of the sovereign nation (or any agency or instrumentality thereof) in which such Subsidiary is organized or is conducting a substantial amount of business or in

 

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obligations fully and unconditionally guaranteed by such sovereign nation (or agency or instrumentality) or (ii) of the type and maturity described in clause (a) through (d) above of foreign obligors, which investments or obligors (or their parents) have ratings equivalent to those described above (which may be equivalent ratings from foreign rating agencies).

 

(g)            The definition of “ Commitment Period ” in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Commitment Period ”:  the period from and including the date hereof to but not including the Amendment No. 3 Effective Date or such earlier date on which the Commitments shall terminate as provided herein.

 

(h)            The definition of “ ERISA Event ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ ERISA Event ”: (a) (i) the occurrence of a reportable event, within the meaning of Section 4043 of ERISA, with respect to any ERISA Plan unless the 30 day notice requirement with respect to such event has been waived by the PBGC or (ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2) of such Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of an ERISA Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect to such ERISA Plan within the following 30 days; (b) the application for a minimum funding waiver with respect to an ERISA Plan; (c) the provision by the administrator of any ERISA Plan of a notice of intent to terminate such ERISA Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall have been met with respect to any ERISA Plan; (g) the adoption of an amendment to an ERISA Plan requiring the provision of security to such ERISA Plan pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate an ERISA Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, such ERISA Plan.

 

(i)             The definition of “ EURIBO Rate ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by inserting “the higher of (a) 1.50% per annum and (b)” immediately after the phrase “for any Interest Period,”.

 

(j)             The definition of “ Eurocurrency Rate ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Eurocurrency Rate ”:  with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, the higher of (a) 1.5% per annum and (b)(i) in the case of any Eurocurrency Loans denominated in Dollars or any Available Foreign Currency (other than Euros), the rate of interest determined on the basis of the rate for deposits in Dollars

 

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or such Available Foreign Currency for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Reuters Screen LIBOR01 as of 11:00 A.M., London time, two Business Days prior to the beginning of such Interest Period or (ii) in the case of any Eurocurrency Loans denominated in Euros, the EURIBO Rate.  In the event that such rate described in clause (b)(i) above does not appear on Reuters Screen LIBOR01 (or otherwise on such service), the rate determined pursuant to clause (b)(i) above shall be determined by reference to such other publicly available service for displaying eurodollar rates as may be agreed upon by the Agent and the Company or, in the absence of such agreement, the rate determined pursuant to clause (b)(i) above shall instead be the rate per annum equal to the average of the respective rates notified to the Agent by each of the Reference Lenders as the rate at which such Reference Lender is offered deposits in Dollars at or about 10:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where the eurodollar and foreign currency and exchange operations in respect of its Eurocurrency Loans are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of its Eurocurrency Loan to be outstanding during such Interest Period.

 

(k)            The definition of “GAAP” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ GAAP ”: generally accepted accounting principles in the United States of America in effect from time to time and as applied by the Company in the preparation of its public financial statements.

 

(l)             The definition of “ Guarantee ” set forth in the subsection 1.1 of the Credit Agreement is hereby amended by deleting “subsection 5.1” in the eighth line thereof and inserting “subsection 5.1(a) and (b)” in its place.

 

(m)           The definition of “ Hedge Agreement ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Hedge Agreements ”: any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement.

 

(n)            The definition of “ Irish Revolving Credit Facility ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitments” in the second line thereof and inserting the word “Loans” in its place.

 

(o)            The definition of “ Irish Revolving Credit Lender ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitment” in the second line thereof and inserting the word “Loan” in its place.

 

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(p)            The definition of “ Japanese Revolving Credit Facility ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitments” in the third line thereof and inserting the word “Loans” in its place.

 

(q)            The definition of “ Japanese Revolving Credit Lender ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitment” in the second line thereof and inserting the word “Loan in its place”.

 

(r)             The definition of “ Material Adverse Effect ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Material Adverse Effect ”: a material adverse effect on (a) the business, financial condition, operations or properties of the Company and its Subsidiaries, taken as a whole, (b) the rights and remedies of the Agent or any Lender under any Loan Document or (c) the ability of any Loan Party to perform its Obligations under any Loan Document to which it is or is to be a party.

 

(s)            The definition of “ Revolving Credit Lender ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitment” therein and inserting the word “Loan” in its place.

 

(t)             The definition of “ Specified Subsidiaries ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Specified Subsidiaries ”: the collective reference to (a) Capmark Bank, an industrial bank chartered under the laws of the State of Utah, (b) Escrow Bank USA, an industrial bank chartered under the laws of the State of Utah, (c) Capmark Bank Europe PLC, an Irish licensed bank and (d) any Subsidiary of any of the foregoing.

 

(u)            The definition of “ Termination Date ” set forth in subsection 1.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

“ Termination Date ”: with respect to any Loans and Commitments on the Amendment No. 3 Effective Date, the earliest to occur of (i) March 23, 2011, (ii) the Specified Repayment Date and (iii) the date of acceleration of the Loans pursuant to subsection 7.1.

 

(v)            The definition of “ US Revolving Credit Facility ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitments” in the second line thereof and inserting the word “Loans” in its place.

 

(w)           The definition of “ US Revolving Credit Lender ” set forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting the word “Commitment” therein and inserting the word “Loan” in its place.

 

(x)             The first sentence of subsection 2.1(b) of the Credit Agreement is hereby amended by inserting the phrase “and until the Amendment No. 3 Effective Date” immediately after “2007” in the second line therein.

 

(y)            The first sentence of subsection 2.1(c) of the Credit Agreement is hereby amended by deleting “30 days before the Termination Date” in the fourth and fifth lines therein and inserting “Amendment No. 3 Effective Date” in its place.

 

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(z)             The second sentence of subsection 2.6(a) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

Amounts borrowed by the US Revolving Credit Borrowers under this subsection 2.6 may be repaid and, to but excluding the Amendment No. 3 Effective Date, reborrowed.

 

(aa)          The third sentence of subsection 2.7(a) of the Credit Agreement is hereby and restated in its entirety to read as follows:

 

Amounts borrowed by any Japanese Borrower under this subsection 2.7 may be repaid and, to but excluding the Amendment No. 3 Effective Date, reborrowed.

 

(bb)          Subsection 2.9(b) of the Credit Agreement is hereby amended by adding the following at the end thereof:

 

The aggregate Revolving Credit Commitments under each Revolving Credit Facility shall be automatically and permanently reduced to zero on the Amendment No. 3 Effective Date.   The aggregate Letter of Credit Commitments under the Letter of Credit Facility shall be automatically and permanently reduced to zero on the Amendment No. 3 Effective Date.  The aggregate Irish Swing Line Commitments, the Swing Line Commitments and the Yen Swing Line Commitments and the Yen Overdraft Swing Line Commitments shall be automatically and permanently reduced to zero on the Amendment No. 3 Effective Date.

 

(cc)          Subsection 2.10(f) of the Credit Agreement is hereby deleted in its entirety.

 

(dd)          Subsection 2.10 of the Credit Agreement is hereby amended by inserting the following new sentence at the end of clause (a) thereof:

 

Unless otherwise specified, (x) any prepayment of the Loans hereunder shall be accompanied by a proportionate prepayment of the loans under the Bridge Facility and (y) any prepayments pursuant to this subsection 2.10(a) shall be applied ratably to the outstanding principal amount of the Loans then owing to the Lenders.

 

(ee)          Subsection 2.10(d) of the Credit Agreement is hereby amended by deleting (i) “Commitments under such Facility as then in effect” in the seventh line thereof and inserting “Loans under such Facility as of the Amendment No. 3 Effective Date” in its place and (ii) the word “Commitments” in the twelfth line thereof and inserting “Loans under such Facility as of the Amendment No. 3 Effective Date” in its place.

 

(ff)            Subsection 2.10 of the Credit Agreement is hereby amended by inserting the following new clause (g) after clause (f) therein:

 

(g)            The Company shall, within one Business Day following the receipt by the Company or any of its Subsidiaries of (1) the first $100,000,000 of the Net Cash Proceeds from any Specified Servicing Loan Facility, prepay the Loans in an amount equal to 62.5% of such Net Cash Proceeds, such amount to be applied ratably to the outstanding principal amount of the Loans then owing to the Initial Prepayment Lenders (or any Assignee, to the extent that an Initial Prepayment Lender has assigned all or a portion of its Loans to an Assignee pursuant to subsection 10.7) and (2) the first $200,000,000 of the Net Cash Proceeds from any Servicing Loan Facility (other than the

 

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Specified Servicing Loan Facility) by a Loan Party or any of its Subsidiaries, prepay the Loans in an amount equal to 62.5% of 50% of such Net Cash Proceeds, such amount to be applied ratably to the outstanding principal amount of the Loans then owing to the Initial Prepayment Lenders (or any Assignee, to the extent that an Initial Prepayment Lender has assigned all or a portion of its Loans to an Assignee pursuant to subsection 10.7); provided that in no event shall the aggregate Net Cash Proceeds to be applied hereunder and under the Bridge Facility exceed $100,000,000.

 

(gg)          Subsection 2.18 of the Credit Agreement is hereby amended by inserting the following new clause (d) after clause (c) therein:

 

(d)            Notwithstanding anything contained in subsections 2.18(a) or 10.8 to the contrary, (i) on the Amendment No. 3 Effective Date, cash in an amount equal to not less than $46,875,000 (the “ Cash Prepayment Amount ”) and the Prepayment shall be applied ratably to permanently prepay the outstanding Loans of the Initial Prepayment Lenders (the ratable amount of the Prepayment and the Cash Prepayment Amount that is allocated to an Initial Prepayment Lender shall be applied to the Loans of such Initial Prepayment Lender as set forth on Schedule I hereto), (ii) each non-ratable redemption or purchase of Loans by the Company pursuant to subsection 2.27 shall be applied to permanently reduce the outstanding Loans of any Qualifying Lender in an amount equal to such Lender’s allocable portion of the Reply Amount at the Applicable Discount and (iii) the aggregate principal amount of any Permitted Refinancing Indebtedness that is accepted by any Lender pursuant to subsection 2.28 to refinance, refund, exchange or replace such Lender’s Loans shall be applied to permanently refinance, refund, exchange or replace (as the case may be) such Lender’s Loans ratably in accordance with the aggregate amount of the Loans held by all such consenting Lenders.

 

(hh)          Section 2 of the Credit Agreement is hereby amended by inserting the following new subsections 2.26, 2.27 and 2.28 in numerical order at the end thereof:

 

2.26.   Specified Repayment Right .  In the event that, as of April 15, 2010, 90% of the outstanding principal amount of the 2010 Notes has not been repaid, redeemed, refinanced, exchanged or extended beyond June 30, 2011 and/or converted to Equity Interests (other than an aggregate principal amount of 2010 Notes not to exceed the unused portion of the Notes Cash Basket on April 15, 2010), the Majority Lenders may, within three Business Days thereof, upon written notice by the Agent to the Company, designate a date (the “ Specified Repayment Date ”) between April 22, 2010 and April 26, 2010 on which all outstanding Loans must be repaid in full in cash.

 

2.27.  Loan Auctions .  (a) Notwithstanding any provision in this Agreement or the other Loan Documents to the contrary, the Company shall be permitted to enter into an Auction so long as each of the “Lenders” under and as defined in the Bridge Facility and the Lenders hereunder shall be offered an opportunity to ratably participate in the applicable Auction and, on a pro forma basis after giving effect to the applicable Auction, (i) the Loan Parties shall have maintained a Liquidity Availability of at least $300,000,000 on an average daily basis for each of the three months immediately ending prior to such Auction and (ii) the Company shall be in compliance with subsection 6.1 immediately before and immediately after giving effect to such Auction.

 

(b) Concurrently with the effectiveness of any Assignment and Assumption pursuant to which the Company becomes a Lender hereunder, any Loans held by the Company shall

 

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be automatically cancelled (and may not be resold by the Company) and no interest shall accrue on such Loans after such date.   Upon the automatic cancellation of any Loans held by the Company, the Company shall no longer be a Lender hereunder and such Loans shall be no longer outstanding for all purposes of this Agreement and all other Loan Documents, including, but not limited to (i) the making of, or the application of, any payments to the Lenders pursuant to this Agreement or any other Loan Document, (ii) the making of any request, demand, authorization, direction, notice, consent or waiver pursuant to this Agreement or any other Loan Document, (iii) the calculation of financial covenants, (iv) the determination of Majority Lenders, or (v) for any similar or related purpose, pursuant to this Agreement or any other Loan Document.

 

(c) The parties hereto hereby agree that any Auction and cancellation of Loans will not constitute a voluntary prepayment made by the Company for any purpose under this Agreement and the other Loan Documents and shall not be subject to subsections 2.10, 2.18 or 10.8.

 

2.28.   Permitted Refinancing Indebtedness . (a) In connection with the proposed issuance or incurrence of any Permitted Refinancing Indebtedness, the Company shall within ten Business Days after the date notice is given to the holders of the applicable Existing Notes, give written notice of such Permitted Refinancing Indebtedness to the Agent and the Lenders, which notice shall specify (i) the terms and conditions of such Permitted Refinancing Indebtedness, including, without limitation, the maximum aggregate principal amount of such proposed Permitted Refinancing Indebtedness proposed to be issued or incurred assuming all lenders under the Bridge Facility and all Lenders hereunder elect to receive the maximum amount of Permitted Refinancing Indebtedness to which they would be entitled pursuant to clause (b), (ii) the maturity thereof, any scheduled amortization in respect thereof, the interest rate in respect thereof and the collateral (if any) securing such Permitted Refinancing Indebtedness, (iii) the series of Existing Notes proposed to be refinanced, refunded, exchanged or replaced by such Permitted Refinancing Indebtedness, (iv) the Aggregate Requested Refinanced Indebtedness Amount (as defined below), (v) the amount of cash, if any, being offered to the holders of the applicable Existing Notes in connection with such refinancing, refunding, exchange or replacement and (vi) the principal amount of Existing Notes that is being refinanced, refunded, exchanged or replaced per $100 of such Permitted Refinancing Indebtedness.  The Company shall also deliver, together with such written notice, copies of the applicable loan documents, indentures, promissory notes, note purchase agreements, and other similar documents that shall govern the terms and conditions of such Permitted Refinancing Indebtedness as well as a draft of the intercreditor agreement if such Permitted Refinancing Indebtedness is to be secured.

 

(b) On the date the holders of Existing Notes shall be required to respond in respect of the Permitted Refinancing Indebtedness of the applicable Existing Notes (or, in the event that  notice to the Lenders was delivered after delivery of notice to the holders of the Existing Notes, within the same number of Business Days after delivery of notice as the holders under the Existing Notes were required to respond), each Lender may, in its sole discretion, deliver a notice (the “ Acceptance Notice ”) to the Agent and the Company agreeing to refinance, refund, exchange or replace all or a portion, as applicable, of its Loans with such Permitted Refinancing Indebtedness on the same terms and conditions as are being offered to the holders of the Existing Notes.  Such notice shall specify the principal amount of the Loans that such Lender desires to be refinanced (the “ Requested Loan Amount ”), it being understood that the aggregate principal amount of the Loans that

 

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may be refinanced per $100 of Permitted Refinancing Indebtedness shall be equal to the aggregate principal amount of the Existing Notes to be refinanced per $100 of Permitted Refinancing Indebtedness to be issued in respect of such Existing Notes.

 

(c) Based on the Aggregate Requested Refinanced Indebtedness Amount and taking into account each Lender’s Requested Loan Amount, the Agent and the Company shall allocate the Refinanced Loan Amount of each Lender that has delivered an Acceptance Notice.

 

(d) For purposes hereof: (i) “ Aggregate Requested Refinanced Indebtedness Amount ”, in respect of any Permitted Refinancing Indebtedness, shall mean the sum of the aggregate principal amount of the Existing Notes that the holders of such Existing Notes desire to be refinanced, refunded, exchanged or replaced by such Permitted Refinancing Indebtedness plus the aggregate outstanding principal amount of the Indebtedness under the Bridge Facility that lenders under the Bridge Facility desire to be refinanced by such Permitted Refinancing Indebtedness plus the aggregate outstanding principal amount of the Loans that Lenders desire to be refinanced by such Permitted Refinancing Indebtedness; and

 

(ii) “ Refinanced Loan Amount ” shall mean, for any Lender, in respect of any Permitted Refinancing Indebtedness, the product of (x) the aggregate principal amount of such Permitted Refinancing Indebtedness times (y) a fraction the numerator of which is the Requested Loan Amount for such Lender and the denominator of which is the Aggregate Requested Refinanced Indebtedness Amount.

 

(ii)            Subsection 3.10 of the Credit Agreement is hereby amended by deleting “subsection 5.1(a)” in the third line thereof and inserting “subsection 5.1(b)” in its place.

 

(jj)            Subsection 5.1 of the Credit Agreement is hereby amended by deleting such subsection in its entirety and inserting the following new subsection 5.1 in its place:

 

5.1.  Financial Statements .  Furnish to each Lender:

 

(a) As soon as available and in any event within 60 days after the end of each of the first three quarters of each Fiscal Year (or such earlier date on which the Company has filed such financial statements with the SEC), a Consolidated and Consolidating balance sheet of the Company and its Subsidiaries as of the end of such quarter, and Consolidated and Consolidating statements of income and cash flows of the Company and its Subsidiaries for the period commencing at the end of the previous quarter and ending with the end of such quarter, and Consolidated and Consolidating statements of income and cash flows of the Company and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, setting forth, in each case in comparative form the corresponding figures for the corresponding period of the immediately preceding Fiscal Year, all in reasonable detail and in each case prepared in accordance with GAAP;

 

(b) As soon as available and in any event no later than 110 days following the end of each Fiscal Year (or such earlier date on which the Company has filed such financial statements with the SEC), a copy of the annual audit report for such Fiscal Year, including therein a Consolidated and Consolidating balance sheet of the Company and its Subsidiaries as of the end of such Fiscal Year and Consolidated and Consolidating

 

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statements of income and cash flows of the Company and its Subsidiaries for such Fiscal Year, in each case prepared in accordance with GAAP, and in each case accompanied by an opinion acceptable to the Agent of independent public accountants of recognized national standing acceptable to the Agent, which report and opinion shall be prepared in accordance with the standards of the Public Company Accounting Oversight Board and shall not be subject to any qualification, exception or other statement as to the scope of such audit or any other statement to that effect;

 

(c) (i)  As soon as available and in any event within 30 days after the end of each calendar month, a Consolidated balance sheet of the Company and its Subsidiaries as of the end of such month, and Consolidated statement of income of the Company and its Subsidiaries for such month, in each case prepared in accordance with the Company’s internal management reporting practices;

 

(ii) As soon as available and in any event within 30 days after the end of each calendar month, (x) a Run Rate Operating Expense report, and (y) a schedule (with weekly detail) of the Agreement Value in respect of any Hedge Agreements of the Loan Parties as of the end of such month (showing the Agreement Value by counterparty, the upfront and variation margin with respect to any collateral posted in connection with such Hedge Agreements and such other information as may be reasonably requested by the Agent, together with a schedule of all Liens incurred by the Loan Parties during such month pursuant to subsection 6.3(g); all such reports and reconciliation statements to be in form reasonably satisfactory to the Agent  and certified by a Responsible Officer of the Company;  and

 

(iii) On the last day of each calendar month, a schedule in form reasonably satisfactory to the Agent of the computations used in determining compliance with the covenants contained in subsection 6.1(b) for the one-month period ending immediately prior to such date; and

 

(d) Concurrently with the delivery of the financial statements referred to in subsections 5.1(a), 5.1(b) and 5.1(c),  (i) a certificate of the chief financial officer of the Company stating that, to the best of the chief financial officer’s knowledge, (x) such financial statements present fairly the financial condition and results of operations of the Company and its Subsidiaries for the period referred to therein (subject, in the case of interim statements, to normal year-end audit adjustments), and (y) during such period, each Loan Party has performed all of its covenants and other agreements contained in this Agreement to be performed by it, and that no Default or Event of Default has occurred, except as specified in such certificate and (ii) a schedule in form reasonably satisfactory to the Agent of the computations used in determining compliance with the covenants contained in subsection 6.1;

 

(e) As soon as available, and in any event no later than 30 days after the end of each Fiscal Year of