Exhibit 10.2
EXECUTION COPY
WAIVER NO. 3 TO THE CREDIT
AGREEMENT
Dated as of May 21, 2009
WAIVER NO. 3 TO THE CREDIT
AGREEMENT (this “
Waiver ”) among Capmark Financial Group Inc., a Nevada
corporation (the “ Company ”), certain
subsidiaries of the Company (together with the Company, the “
Borrowers ” and each a “ Borrower
”), the financial institutions and other institutional
lenders party hereto, and Citibank, N.A., as administrative agent
(the “ Agent ”) for the Lenders.
RECITALS:
(1)
The Borrowers, the financial institutions and other institutional
lenders party thereto (the “ Lenders ”), the
Agent and the other agents party thereto have entered into that
certain Credit Agreement, dated as of March 23, 2006, as
amended by Amendment No. 1 to the Credit Agreement, dated as
of April 17, 2007, Amendment No. 2 to the Credit
Agreement, dated as of June 30, 2008, Waiver to the Credit
Agreement, dated as of April 20, 2009 and Waiver No. 2 to
the Credit Agreement, dated as of May 8, 2009 (as further
amended, restated, supplemented or otherwise modified from time to
time, the “ Credit Agreement ”).
Capitalized terms not otherwise defined in this Waiver have the
same meanings as specified in the Credit Agreement.
(2)
The Borrowers have requested that the Lenders agree to waive
certain provisions of the Credit Agreement as set forth
herein.
(3)
Pursuant to subsection 10.1(a) of the Credit 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
Borrowers, written amendments, supplements or modifications to the
Credit Agreement for the purpose of waiving any provisions to the
Credit Agreement
(4)
The Majority Lenders have agreed, subject to the terms and
conditions stated below, to waive the Credit Agreement as set forth
herein.
SECTION 1.
WAIVER TO CREDIT AGREEMENT
(a)
Subject to the satisfaction of the conditions precedent set forth
in Section 2, 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 Event of Default arising
directly from the Company’s failure to maintain, pursuant to
Section 6.1 of the Credit 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 “ Financial Covenant
Non-Compliance Event of Default ”).
(b)
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
Credit Agreement as a result of the occurrence and continuance of
the Event of Default arising from the Financial Covenant
Non-Compliance Event of Default.
(c)
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 Credit 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
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 Credit 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 Credit Agreement or to establish a custom or course of
dealing among the Borrowers, the other Loan Parties, 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 Credit
Agreement, the other Loan Agreements and applicable law.
(d)
The Borrowers hereby agree to negotiate in good faith with the
Agent and Lenders to finalize by no later than May 29,
2009 the amendments to the Credit Agreement and to the Bridge
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 Bridge Facility, in each case on
substantially the terms and conditions set forth in the
Commitment Letters.
SECTION 2.
CONDITIONS OF EFFECTIVENESS
This Waiver 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 Waiver executed
by the Company, the other Borrowers, the Majority Lenders, and/or,
as to any such Majority Lender, advice satisfactory to the Agent
that such Lender has executed this Waiver;
(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 Waiver (with the President, a Vice President, the
Secretary or Assistant Secretary of the Company attesting to the
incumbency and signature of the Secretary or Assistant Secretary
providing such certificate), (ii) have attached to it a true
and correct copy of the resolutions of the Board of Directors of
the Company, which resolutions shall authorize the execution,
delivery and performance of this Waiver, and (iii) certify
that, as of the date of such certificate (which shall not be
earlier than the date hereof), none of such resolutions shall have
been amended, supplemented, modified, revoked or
rescinded;
(c)
each Guarantor has executed and delivered a consent in the form of
Annex A hereto;
(d)
the Agent shall have received satisfactory evidence that Amendment
No. 8 and Waiver to the Bridge Facility dated as of the date
hereof shall have become effective; and
(e)
all other fees and expenses of the Agent and the Lenders (including
all reasonable fees and expenses of counsel to the Agent), to the
extent invoiced prior to the date hereof, shall have been
paid.
SECTION 3.
CONFIRMATION OF REPRESENTATIONS AND WARRANTIES
(a)
Each of the Company and each Borrower hereto hereby represents and
warrants, on and as of the date hereof, that the representations
and warranties contained in the Credit Agreement (to the extent
relating to such Loan Party) are true and correct in all material
respects on and as of the date
2
hereof, before and after
giving effect to this Waiver, as though made on and as of the date
hereof, other than any such representations or warranties that, by
their terms, refer to a specific date.
SECTION 4.
AFFIRMATION OF THE COMPANY AND THE BORROWERS
The Company and
each Borrower hereby consents to the waiver to the Credit Agreement
effected hereby, and hereby confirms and agrees that,
notwithstanding the effectiveness of this Waiver, the obligations
of the Company and each such Borrower contained in the Credit
Agreement, as amended hereby, or in any other Loan Documents to
which it is a party are, and shall remain, in full force and effect
and are hereby ratified and confirmed in all respects.
SECTION 5.
REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS
(a)
On and after the effectiveness of this Waiver, each reference in
the Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like
import referring to the Credit Agreement and each reference in the
Notes and each of the other Loan Documents to “the Credit
Agreement”, “thereunder”,
“thereof”
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