Exhibit 10.1


 


EXECUTION COPY


 


AMENDMENT NO.  7 AND
WAIVER TO THE BRIDGE LOAN AGREEMENT


 


Dated as of May 8, 2009


 


AMENDMENT NO. 7 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 and Amendment No. 6
and Waiver to the Bridge Loan Agreement dated as of April 20, 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. 7 and
Waiver”: Amendment No. 7 and Waiver to the Agreement, dated as of May 8,
2009, among the Company, the Lenders party thereto and the Agent.


 

















 


“Amendment No. 7 and
Waiver Effective Date”: the date of effectiveness of Amendment No. 7
and Waiver in accordance with the terms thereof.


 


“Amendment No. 7 and
Waiver Extending Lender”: an “Extending Lender” (as defined in Amendment No. 7
and Waiver).


 


“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. 7 and Waiver
Extending Lenders on the Amendment No. 7 Effective Date, May 21, 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 21, 2009 at 5:00 p.m. EDT (the “Waiver Termination
Date”), the Events of Default arising directly from the Company’s failure
to (x) 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 “Financial
Covenant Non-Compliance Event of Default”), and (y) 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 (the “Non-Payment Event of
Default”; together with the Financial Covenant Non-Compliance Event of
Default, 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 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.


 


(g)                                 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.


 


(h)                                 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.


 


(i)                                     The Company hereby agrees to
negotiate in good faith with the Agent and Lenders to finalize by no
later than May 21, 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 Facility, in each case on substantially the terms and
conditions set forth in the Commitment Letters.


 


SECTION 2.                               CONDITIONS OF EFFECTIVENESS


 


This Amendment and 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 Amendment
and Waiver 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 and
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 Amendment and 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 Amendment and 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)                                 the Agent shall have received satisfactory evidence that
Waiver No. 2 to the Senior Credit Facility dated as of the date hereof
shall have become effective;


 


(d)                                each Guarantor has executed and delivered a consent in the
form of Annex A hereto;


 


(e)                                 the Agent shall have received satisfactory evidence that the
board of directors of the Company shall have approved the Transactions (as
defined in the Commitment Letters) on substantially the terms set forth in the
Commitment Letters; and


 


(f)                                   all other fees and expenses of the Agent and the Lenders
(including (i) all reasonable fees 


 

















 


and expenses of counsel to the Agent
and (ii) all retainers for counsel to the Agent and advisor to the Agent),
to the extent invoiced prior to the date hereof, shall have been paid.


 


SECTION 3.                               CONFIRMATION OF
REPRESENTATIONS AND WARRANTIES


 


(a)                                 The Company hereby represents and warrants, on and as of the
date hereof, that the representations and warranties contained in the Bridge
Loan Agreement (to the extent relating to the Company) are true and correct in
all material respects on and as of the date hereof, before and after giving
effect to this Amendment and 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


 


The Company hereby consents
to the amendments and waiver to the Bridge Loan Agreement effected hereby, and
hereby confirms and agrees that, notwithstanding the effectiveness of this
Amendment and Waiver, the obligations of the Company contained in the Bridge
Loan 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 Amendment and Waiver, each reference in the Bridge
Loan Agreement to “this Agreement”, “hereunder”, “hereof” or words of like
import referring to the Bridge Loan Agreement and each reference in the Notes
and each of the other Loan Documents to “the Bridge Loan Agreement”, “thereunder”,
“thereof” or words of like import referring to the Bridge Loan Agreement shall
mean and be a reference to the Bridge Loan Agreement as amended by this
Amendment and Waiver.


 


(b)                                The Bridge Loan Agreement, the Notes and each of the other
Loan Documents, as specifically amended by this Amendment and Waiver, are and
shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed.


 


(c)                                 The execution, delivery and effectiveness of this Amendment
and Waiver shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of any Lender or the Agent under the Bridge Loan
Agreement or any other Loan Document, nor constitute a waiver of any provision
of the Bridge Loan Agreement or any other Loan Document.


 


SECTION 6.                               COSTS, EXPENSES


 


The Company agrees to pay on demand all costs and
expenses of the Agent in connection with the preparation, execution, delivery
and administration, modification and amendment of this Amendment and Waiver and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of subsection 9.5 of the Bridge Loan
Agreement.


 


SECTION 7.                               EXECUTION IN
COUNTERPARTS


 


This Amendment and Waiver may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.  Delivery of an executed counterpart of a
signature page to this Amendment and Waiver by telecopier or in “pdf” or
similar format 


 

















 


by electronic mail shall be effective as
delivery of a manually executed counterpart of this Amendment and Waiver.


 


SECTION 8.                               GOVERNING LAW


 


This Amendment and Waiver shall be governed by,
and construed in accordance with, the laws of the State of New York.


 


[The
remainder of this page intentionally left blank.]


 
















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


 


	
   

  	
  CAPMARK
  FINANCIAL GROUP INC.,  

  
	
   

  	
  as
  the Company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  



 

















 


Acknowledged:


 


CITICORP
NORTH AMERICA, INC., 


as
the Agent


 


	
  By:

  	
  /s/
  Michael Schadt

  	
   

  
	
   

  	
  Name:

  	
  Michael
  Schadt

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  



 

















 


	
   

  	
  Citicorp
  North America, Inc.,

  
	
   

  	
  as
  a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael
  Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director
  

  



 

















 


	
   

  	
  The
  Royal Bank of Scotland plc,

  
	
   

  	
  as
  a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Fabiano

  
	
   

  	
   

  	
  Name:

  	
  Michael
  Fabiano

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President

  



 

















 


	
   

  	
  Credit
  Suisse, Cayman Islands Branch,

  as a Majority Lender 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Didier Siffer

  
	
   

  	
   

  	
  Name:

  	
  Didier
  Siffer

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Bryan Matthews

  
	
   

  	
   

  	
  Name:

  	
  Bryan
  Matthews

  
	
   

  	
   

  	
  Title:

  	
  Director
  

  



 

















 


	
   

  	
  Deutsche Bank AG, New York,

  as a Majority Lender 

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Emile Van den Bol

  
	
   

  	
   

  	
  Name:

  	
  Emile Van den Bol

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Chris Jones 

  
	
   

  	
   

  	
  Name:

  	
  R.
  Chris Jones

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 

















 


	
   

  	
  JP
  Morgan,

  
	
   

  	
  as
  a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John J. Coffey

  
	
   

  	
   

  	
  Name:

  	
  John
  J. Coffey

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 

















 


	
   

  	
  Goldman
  Sachs Credit Partners L.P.,

  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Caroline Benton

  
	
   

  	
   

  	
  Name:

  	
  Caroline
  Benton

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory 

  



 
















Annex A to


Amendment No. 7 and Waiver to the Bridge Loan
Agreement


 


Form of Guarantor Consent


 


CONSENT


 


Reference
is made to the 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 among Capmark Financial Group Inc. (the “Company”),
the financial institutions and other institutional lenders party thereto,
Citicorp North America, Inc., as administrative agent for the Lenders and
the other agents party thereto (such Bridge Loan Agreement, as so amended, the “Bridge
Loan Agreement”).


 


Each
of the undersigned confirms and agrees that notwithstanding the effectiveness
of the foregoing Amendment No. 7 and Waiver to the Bridge Loan Agreement,
each Loan Document to which such Person is a party is, and shall continue to
be, in full force and effect and is hereby ratified and confirmed in all
respects, in each case as amended by Amendment No. 7 and Waiver to the
Bridge Loan Agreement (in each case, as defined therein).


 


[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]


 

















 


	
   

  	
  COMMERCIAL
  EQUITY INVESTMENTS, INC.,

  
	
   

  	
  as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Anne E. Kelly

  
	
   

  	
   

  	
  Name:

  	
  Anne
  E. Kelly

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
  CAPMARK
  CAPITAL INC.,  

  
	
   

  	
  as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  NET
  LEASE ACQUISITION LLC,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  CAPMARK
  FINANCE INC.,  

  
	
   

  	
  as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  CAPMARK
  INVESTMENTS LP,  

  
	
   

  	
  as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Keith Kooper

  
	
   

  	
   

  	
  Name:

  	
  Keith
  Kooper

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  MORTGAGE
  INVESTMENTS, LLC,  

  
	
   

  	
  as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jay N. Levine

  
	
   

  	
   

  	
  Name:

  	
  Jay
  N. Levine

  
	
   

  	
   

  	
  Title:

  	
  President

  



 

















 


	
   

  	
  SJM
  CAP, LLC,  

  
	
   

  	
  as
  a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory
  J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CRYSTAL
  BALL HOLDING OF BERMUDA LIMITED, as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter A. Widmann

  
	
   

  	
   

  	
  Name:

  	
  Peter
  A. Widmann

  
	
   

  	
   

  	
  Title:

  	
  President