Exhibit 10.2


 


EXECUTION VERSION


 


AMENDMENT NO. 2 TO THE BRIDGE LOAN AGREEMENT


 


Dated as of June 30, 2008


 


AMENDMENT
NO. 2 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 a 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 (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 amend certain provisions of the
Bridge Loan Agreement as set forth in the Bridge Loan Agreement as attached in Annex
A hereto.  Such amendments to the
Bridge Loan Agreement are represented in Annex A with strikethrough font
for all deletions thereto and with bold, double underlined font for all
additions thereto.


 


(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)           The
Agent and the Majority Lenders have each agreed, subject to the terms and
conditions stated below, to amend the Bridge Loan Agreement as set forth in Annex
A hereto.


 


SECTION 1.           AMENDMENTS TO BRIDGE LOAN AGREEMENT


 


The Bridge Loan Agreement is
hereby amended as set forth in the Bridge Loan Agreement as attached in Annex
A hereto.  Such amendments to the
Bridge Loan Agreement are represented in Annex A with strikethrough font
for all deletions thereto and with bold, double underlined font for all
additions thereto.


 


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, and/or, as to any such Majority Lender, advice
satisfactory to the Agent that such Lender has executed this Amendment;


 


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


 


(c)           the
Loans shall have been prepaid in an aggregate amount equal to $600,000,000


 

















 


(provided
that the Lenders agree that the Company shall not be responsible for any
premium or penalty or any loss, cost or expense pursuant to Section 2.16
of the Bridge Loan Agreement as a result of such prepayment); and


 


(d)           all
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)           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,
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.


 


(b)           The
Company hereby represents and warrants that, on and as of the date hereof, no
event has occurred and is continuing that constitutes a Default.


 


SECTION 4.           AFFIRMATION OF THE COMPANY


 


The Company hereby consents
to the amendments to the Bridge Loan Agreement effected hereby, and hereby
confirms and agrees that, notwithstanding the effectiveness of this Amendment,
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, 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.


 


(b)           The
Bridge Loan Agreement, the Notes and each of the other Loan Documents, as
specifically amended by this Amendment, 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 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 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.


 


2

















 


SECTION 7.           EXECUTION IN COUNTERPARTS


 


This Amendment 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 by telecopier or in “pdf”
format by electronic mail shall be effective as delivery of a manually executed
counterpart of this Amendment.


 


SECTION 8.           GOVERNING LAW


 


This Amendment 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.]


 


3

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Amendment 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

  



 

















 


	
   

  	
  CITICORP NORTH AMERICA,
  INC., 

  as the Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Maureen P. Maroney

  
	
   

  	
   

  	
  Name:

  	
  Maureen P. Maroney

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 

















 


	
   

  	
  CITICORP NORTH AMERICA,
  INC.

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Maureen P.
  Maroney

  
	
   

  	
   

  	
   Name: Maureen P. Maroney

  
	
   

  	
   

  	
   Title:   Authorized Signatory

  



 

















 


	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Dmitry V.
  Yakimchuk

  
	
   

  	
   

  	
    Name:     Dmitry
  V. Yakimchuk

  
	
   

  	
   

  	
    Title:       Vice
  President

  



 

















 


	
   

  	
  GOLDMAN SACHS CREDIT PARTNERS,
  

  L.P.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Andrew
  Caditz

  
	
   

  	
   

  	
    Name: 

  	
  Andrew Caditz

  
	
   

  	
   

  	
    Title:  

  	
  Authorized Signatory

  



 

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND
  PLC,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Angela
  Reilly

  
	
   

  	
   

  	
    Name: 

  	
  Angela Reilly

  
	
   

  	
   

  	
    Title:  

  	
  Managing Director

  



 

















 


Annex A to


Amendment No. 2 to the Bridge Loan Agreement


 

















 




	
   

  
	
  $5,250,000,000 BRIDGE LOAN
  AGREEMENT

  
	
   

  
	
  Among

  
	
   

  
	
  CAPMARK FINANCIAL GROUP
  INC.,

  
	
   

  
	
  The Several Lenders

  from Time to Time Parties Hereto,

  
	
   

  
	
  CITICORP NORTH AMERICA,
  INC.

  as Administrative Agent,

  
	
   

  
	
  J.P. MORGAN SECURITIES
  INC.,

  as Syndication Agent

  
	
   

  
	
  CREDIT SUISSE,

  DEUTSCHE BANK SECURITIES INC.,

  GOLDMAN SACHS CREDIT PARTNERS L.P.,

  - and -

  THE ROYAL BANK OF SCOTLAND PLC,

  as Documentation Agents

  
	
   

  
	
  Dated as of March 23,
  2006

  
	
   

  
	
   

  CITIGROUP GLOBAL MARKETS
  INC.,

  J.P. MORGAN SECURITIES INC.,

  CREDIT SUISSE,

  DEUTSCHE BANK SECURITIES INC.,

  GOLDMAN SACHS CREDIT PARTNERS, L.P.,

  - and -

  THE ROYAL BANK OF SCOTLAND PLC,

  as Joint Lead Arrangers and Joint Bookrunners

   

  






 

















 


TABLE OF CONTENTS


 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 1. DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.1.

  	
  Defined Terms

  	
  1

  
	
   

  	
   

  	
   

  
	
  1.2.

  	
  Other Definitional Provisions

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 2. AMOUNT AND TERMS OF THE FACILITIES

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.1.

  	
  Commitments

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.2.

  	
  Procedure for Borrowing

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.3.

  	
  Termination or Reduction of Commitments

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.4.

  	
  Prepayments

  	
  16

  
	
   

  	
   

  	
   

  
	
  2.5.

  	
  Conversion and Continuation Options

  	
  17

  
	
   

  	
   

  	
   

  
	
  2.6.

  	
  Minimum Amounts of Eurodollar Borrowings; Interest
  Periods

  	
  18

  
	
   

  	
   

  	
   

  
	
  2.7.

  	
  Repayment of Loans; Evidence of Debt

  	
  18

  
	
   

  	
   

  	
   

  
	
  2.8.

  	
  Interest Rates and Payment Dates

  	
  18

  
	
   

  	
   

  	
   

  
	
  2.9.

  	
  Facility Fee

  	
  19

  
	
   

  	
   

  	
   

  
	
  2.10.

  	
  Computation of Interest and Fees

  	
  20

  
	
   

  	
   

  	
   

  
	
  2.11.

  	
  Inability to Determine Interest Rate

  	
  20

  
	
   

  	
   

  	
   

  
	
  2.12.

  	
  Pro Rata Treatment and Payments

  	
  20

  
	
   

  	
   

  	
   

  
	
  2.13.

  	
  Illegality

  	
  21

  
	
   

  	
   

  	
   

  
	
  2.14.

  	
  Increased Costs

  	
  21

  
	
   

  	
   

  	
   

  
	
  2.15.

  	
  Taxes

  	
  22

  
	
   

  	
   

  	
   

  
	
  2.16.

  	
  Indemnity

  	
  24

  
	
   

  	
   

  	
   

  
	
  2.17.

  	
  Notice of Amounts Payable; Relocation of Funding
  Office; Mandatory Assignment

  	
  24

  
				



 

















 


	
  SECTION 3. REPRESENTATIONS AND WARRANTIES

  	
  25

  
	
   

  	
   

  	
   

  
	
  3.1.

  	
  Financial Condition

  	
  25

  
	
   

  	
   

  	
   

  
	
  3.2.

  	
  No Change

  	
  25

  
	
   

  	
   

  	
   

  
	
  3.3.

  	
  Corporate Existence

  	
  25

  
	
   

  	
   

  	
   

  
	
  3.4.

  	
  Corporate Power; Authorization; Enforceable
  Obligations

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.5.

  	
  No Legal Bar

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.6.

  	
  No Material Litigation

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.7.

  	
  Federal Regulations

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.8.

  	
  Investment Company Act

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.9.

  	
  ERISA

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.10.

  	
  No Material Misstatements

  	
  26

  
	
   

  	
   

  	
   

  
	
  3.11.

  	
  Solvency

  	
  27

  
	
   

  	
   

  	
   

  
	
  3.12.

  	
  Purpose of Loans

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 4. CONDITIONS PRECEDENT

  	
  27

  
	
   

  	
   

  	
   

  
	
  4.1.

  	
  Conditions to Initial Loans

  	
  27

  
	
   

  	
   

  	
   

  
	
  4.2.

  	
  Conditions to Maturity Extension

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 5. AFFIRMATIVE COVENANTS

  	
  28

  
	
   

  	
   

  	
   

  
	
  5.1.

  	
  Financial Statements

  	
  28

  
	
   

  	
   

  	
   

  
	
  5.2.

  	
  Certificates; Other Information

  	
  29

  
	
   

  	
   

  	
   

  
	
  5.3.

  	
  Notices

  	
  30

  
	
   

  	
   

  	
   

  
	
  5.4.

  	
  Conduct of Business and Maintenance of Existence

  	
  30

  
	
   

  	
   

  	
   

  
	
  5.5.

  	
  Compliance with Laws, Etc.

  	
  30

  
	
   

  	
   

  	
   

  
	
  5.6.

  	
  Payment of Taxes, Etc.

  	
  30

  
	
   

  	
   

  	
   

  
	
  5.7.

  	
  Visitation Rights

  	
  30

  
	
   

  	
   

  	
   

  
	
  5.8.

  	
  Keeping of Books

  	
  30

  
				



 


ii

















 


	
  5.9.

  	
  Maintenance of Properties, Etc.

  	
  30

  
	
   

  	
   

  	
   

  
	
  5.10.

  	
  Maintenance of Insurance

  	
  30

  
	
   

  	
   

  	
   

  
	
  5.11.

  	
  Transactions with Affiliates

  	
  31

  
	
   

  	
   

  	
   

  
	
  5.12.

  	
  Covenant to Guaranty Obligations

  	
  31

  
	
   

  	
   

  	
   

  
	
  SECTION 6. NEGATIVE COVENANTS

  	
  31

  
	
   

  	
   

  	
   

  
	
  6.1.

  	
  Leverage Ratio

  	
  31

  
	
   

  	
   

  	
   

  
	
  6.2.

  	
  Merger, Consolidation, etc.

  	
  31

  
	
   

  	
   

  	
   

  
	
  6.3.

  	
  Limitation on Liens

  	
  31

  
	
   

  	
   

  	
   

  
	
  6.4.

  	
  Indebtedness

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 7. EVENTS OF DEFAULT

  	
  33

  
	
   

  	
   

  	
   

  
	
  7.1.

  	
  Events of Default. If any of the following events
  shall occur and be continuing:

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 8. THE AGENT

  	
  35

  
	
   

  	
   

  	
   

  
	
  8.1.

  	
  Appointment

  	
  35

  
	
   

  	
   

  	
   

  
	
  8.2.

  	
  Delegation of Duties

  	
  35

  
	
   

  	
   

  	
   

  
	
  8.3.

  	
  Exculpatory Provisions

  	
  35

  
	
   

  	
   

  	
   

  
	
  8.4.

  	
  Reliance by Agent

  	
  35

  
	
   

  	
   

  	
   

  
	
  8.5.

  	
  Notice of Default

  	
  36

  
	
   

  	
   

  	
   

  
	
  8.6.

  	
  Non-Reliance on Agent and Other Lenders

  	
  36

  
	
   

  	
   

  	
   

  
	
  8.7.

  	
  Indemnification

  	
  36

  
	
   

  	
   

  	
   

  
	
  8.8.

  	
  Agent in Its Individual Capacity

  	
  37

  
	
   

  	
   

  	
   

  
	
  8.9.

  	
  Successor Agent

  	
  37

  
	
   

  	
   

  	
   

  
	
  8.10.

  	
  Sub-Agent

  	
  37

  
	
   

  	
   

  	
   

  
	
  SECTION 9. MISCELLANEOUS

  	
  37

  
	
   

  	
   

  	
   

  
	
  9.1.

  	
  Amendments and Waivers

  	
  37

  
	
   

  	
   

  	
   

  
	
  9.2.

  	
  Notices

  	
  37

  
						



 


iii

















 


	
  9.3.

  	
  No Waiver; Cumulative Remedies

  	
  40

  
	
   

  	
   

  	
   

  
	
  9.4.

  	
  Survival of Representations and Warranties

  	
  40

  
	
   

  	
   

  	
   

  
	
  9.5.

  	
  Payment of Expenses and Taxes

  	
  40

  
	
   

  	
   

  	
   

  
	
  9.6.

  	
  Successors and Assigns; Participations and
  Assignments

  	
  40

  
	
   

  	
   

  	
   

  
	
  9.7.

  	
  Adjustments

  	
  44

  
	
   

  	
   

  	
   

  
	
  9.8.

  	
  Counterparts

  	
  44

  
	
   

  	
   

  	
   

  
	
  9.9.

  	
  Judgment

  	
  45

  
	
   

  	
   

  	
   

  
	
  9.10.

  	
  Severability

  	
  45

  
	
   

  	
   

  	
   

  
	
  9.11.

  	
  GOVERNING LAW

  	
  45

  
	
   

  	
   

  	
   

  
	
  9.12.

  	
  USA PATRIOT Act

  	
  46

  
	
   

  	
   

  	
   

  
	
  9.13.

  	
  WAIVER OF JURY TRIAL

  	
  46

  
				



 


SCHEDULES


 


	
  I

  	
  Commitments

  
	
  II

  	
  Guarantors

  
	
  III

  	
  Administrative
  Schedule

  
	
  IV

  	
  Surviving
  Indebtedness

  



 


EXHIBITS


 


	
  A

  	
  Assignment
  and Assumption

  
	
  B-1

  	
  Opinion
  of Lionel Sawyer & Collins, Nevada counsel to the Company

  
	
  B-2

  	
  Opinion
  of Simpson Thacher & Bartlett LLP, counsel to the Company

  
	
  C

  	
  Form of
  Note

  
	
  E

  	
  US
  Tax Compliance Certificate

  
	
  F

  	
  Form of
  Subsidiary Guaranty

  



 


iv

















 


BRIDGE LOAN AGREEMENT, dated as of March 23,
2006, among:


 


(a)           CAPMARK
FINANCIAL GROUP INC., a Nevada corporation (the “Company”);


 


(b)           the
several banks and other financial institutions, including, as applicable,
branches or affiliates thereof, from time to time parties to this Agreement
(the “Lenders”);


 


(c)           J.P.
Morgan Securities Inc., as syndication agent (in such capacity, the “Syndication
Agent”);


 


(d)           Credit
Suisse, Deutsche Bank Securities Inc., Goldman Sachs Credit Partners, L.P. and
The Royal Bank of Scotland plc, as documentation agents (each, in such
capacity, a “Documentation Agent”); and


 


(e)           CITICORP
NORTH AMERICA, INC. (“CNAI”), as administrative agent for the Lenders
hereunder (in such capacity, the “Agent”).


 


The parties hereto hereby agree as follows:


 


SECTION 1.  DEFINITIONS


 


1.1.  Defined
Terms.  As used in this Agreement, the following
terms shall have the following meanings:


 


“A-Rated Specified Loans and Securities”:  Specified Loans and Securities of the type
referred to in clause (c) of the definition thereof which are not rated at
least “AA-” by S&P, “Aa3” by Moody’s or “AA-” by Fitch.


 


“Acquisition”:  the acquisition by the Investors of
approximately 80.0% of the capital stock of the Company from GMAC Mortgage
Group, Inc. pursuant to the terms of the Purchase Agreement concurrently
with the initial extension of credit hereunder.


 


“Administrative Schedule”:  Schedule III to this Agreement, as amended
from time to time in accordance with the provisions hereof.


 


“Affiliate”:  as to any
Person, any other Person that, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of
a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of such Person or (b) direct
or cause the direction of the management and policies of such Person, whether
by contract or otherwise.


 


“Agent”:  as defined in the preamble hereto.


 


“Agreement”:  this Agreement, as amended, supplemented or
otherwise modified from time to time.


 


“Applicable Margin”:  as defined in subsection 2.8(d).


 


“Approved Fund”:  as defined in subsection 9.6(b)(ii).


 

















 


“ARB 51”:  Accounting Research Bulletin No. 51, as
amended.


 


“Arrangers”:  Citigroup Global Markets Inc., J.P. Morgan
Securities Inc., Credit Suisse, Deutsche Bank Securities Inc., Goldman Sachs
Credit Partners, L.P. and The Royal Bank of Scotland plc, in their capacity as
joint lead arrangers and joint bookrunners under this Agreement.


 


“Assignee”:  as defined in subsection 9.6(b)(i).


 


“Attributed Capitalization”:  as of any date of determination, (a) with
respect to any Specified Subsidiary, the aggregate consolidated value of the
assets of such Specified Subsidiary, and (b) with respect to any Specified
Asset Category, the aggregate consolidated value of the assets in such Specified
Asset Category, in each case with “consolidated value” being determined in a
manner consistent with the consolidated value of assets reflected on the
Company’s financial statements delivered pursuant to subsection 5.1.


 


“Attributed Equity”:  Attributed Capitalization minus
Attributed Indebtedness.


 


“Attributed Indebtedness”:  as of any date of determination, with respect
to any Specified Subsidiary or Specified Asset Category, an amount equal to the
amount of the Attributed Capitalization of such Specified Subsidiary or
Specified Asset Category, respectively, in each case multiplied by the
Indebtedness Factor with respect to such Specified Subsidiary or Specified
Asset Category.


 


“Banking and Market Destined Assets”:  all assets that either (a) fall within
any Specified Asset Category or (b) are owned by any Specified Subsidiary.


 


“Bankruptcy Remote Special Purpose Entity”:  a Person that satisfies each of the following
criteria:  (i) 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; (ii) all or substantially all of such Person’s 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 (iii) Receivables
or securities backed by Receivables owned by such Person satisfy the legal
isolation criteria set forth in paragraph 9(a) of FAS 140 (in relation to
the Company and any Subsidiary that is not a Bankruptcy Remote Special Purpose
Entity).


 


“Base Rate”: 
a fluctuating interest rate per annum in effect from time to time, which
rate per annum shall at all times be equal to the higher of:


 


(a)  the
rate of interest announced publicly by Citibank in New York, New York, from
time to time, as Citibank’s base rate; and


 


(b)  1/2
of one percent per annum above the Federal Funds Rate.


 


“Base Rate Loans”:  Loans bearing interest at a rate determined
by reference to the Base Rate.


 


“Benefitted Lender”:  as defined in subsection 9.7.


 


“Board of Directors”:  as to the Company, its Board of Directors or
any committee thereof.


 


2

















 


“Borrowing”:  the making of Loans of a single Type made by
the Lenders on a single date and, if applicable, as to which a single Interest
Period is in effect.


 


“Business Day”:  (a) in the case of a Eurodollar Loan,
any fundings, disbursements, payments and settlements in respect of any such
Eurodollar Loan, or any other dealings to be carried out pursuant to any Loan
Document in respect of any such Eurodollar Loan, a London Banking Day which is
also a day other than a Saturday or Sunday and on which banks are open for
general banking business in New York City and (b) in the case of an Base
Rate Loan, any fundings, disbursements, payments and settlements in respect of
any such Base Rate Loan, or any other dealings to be carried out pursuant to
any Loan Document in respect of any such Base Rate Loan, a day other than a
Saturday or Sunday and on which banks are open for general banking business in
New York City.


 


“Cash
Equivalents”:


 


(1)           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;


 


(2)           time deposits or certificates of deposit of
any bank of recognized standing having capital and surplus in excess of $100
million or whose commercial paper rating is at least A-1 by S&P or P-1 by
Moody’s and having maturities of not more than 12 months after the date of
acquisition;


 


(3)           commercial paper rated at least A-1 by
S&P or P-1 by Moody’s and having maturities of not more than 12 months
after the date of acquisition;


 


(4)           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 or 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 12 months after the date
of acquisition; and


 


(5)           in the case of any foreign Subsidiary of the
Company, investments (A) 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 obligations fully and
unconditionally guaranteed by such sovereign nation (or agency or
instrumentality) or (B) of the type and maturity described in clause (1) through
(4) 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).


 


“Change of Control”:  (a) prior to the consummation of a
Qualifying IPO, the Equity Investors shall cease to own, collectively, at least
35% of the Voting Stock of the Company or (b) any Person or two or more
Persons acting in concert other than the Investors shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Company (or other securities convertible
into such Voting Stock) representing more than 50% of the combined voting power
of all Voting Stock of the Company or (c) prior to the consummation of a
Qualifying IPO, General Motors Corporation or any of its Affiliates shall hold
Voting Stock of the Company (or other securities convertible into such Voting
Stock) 


 


3

















 


representing more than the
combined voting power of all Voting Stock of the Company held by the Equity
Investors.


 


“Citibank”:  Citibank, N.A.


 


“CLO”: 
as defined in subsection 9.6(b)(ii).


 


“Closing Date”:  the date on which each of the conditions
precedent set forth in subsection 4.1 shall have been satisfied.


 


“Closing Date Material Adverse Effect”:  a material adverse effect on the business,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole, excluding the effects of changes to the
extent caused by or resulting from (a) changes in business or economic
conditions generally or the financial services industries in which General
Motors Acceptance Corporation, GMAC Mortgage Group, Inc., General Motors
Corporation or the Company and its Subsidiaries operate, in each case which do
not have a materially disproportionate effect on the Company and its
Subsidiaries, taken as a whole (relative to other comparable industry
participants), (b) any outbreak of major armed hostilities in which the
United States is engaged or the occurrence of any terrorist attack upon the
United States or any part thereof, (c) changes  in securities markets generally (including
any disruption thereof and any decline in the price of any security or any
market index), (d) changes after the date of this Agreement in GAAP or (e) the
performance of any obligations under the Transaction Documents (as defined in
the Purchase Agreement).


 


“CNAI”: Citicorp North America, Inc.


 


“Code”:  the Internal
Revenue Code of 1986, as amended from time to time.


 


“Commitment”:  as to any Lender at any time, the amount set
forth opposite such Lender’s name on Schedule I hereto under the caption “Commitment”,
as such amount may be reduced at or prior to such time in accordance with the provisions
of this Agreement.


 


“Company”:  as defined in the preamble hereto.


 


“Conduit Lender”:  any
special purpose funding vehicle that (i) is organized under the laws of
the United States or any state thereof and (ii) is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary course of
its business.


 


“Contractual Obligation”:  as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.


 


“Default”:  any of the events specified in Section 7,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.


 


“Designated Borrower”:  each “Designated Borrower” as defined in the
Senior Credit Facility.


 


“Designated Lenders”:  as defined in subsection 9.8(c).


 


“Documentation Agent”:  as defined in the preamble hereto.


 


4
















 


“Dollars” and “$”:  the lawful currency of the United States of
America.


 


“Environmental Law”:  any Federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, writ, judgment, injunction,
decree or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of hazardous
materials.


 


“Environmental Permit”:  any permit, approval, identification number,
license or other authorization required under any Environmental Law.


 


“Equity Investors”:  Affiliates of Kohlberg Kravis Roberts &
Co. L.P., The Goldman Sachs Group, Inc., Dune Capital Management, L.P. and
Five Mile Capital Partners LLC.


 


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time.


 


“ERISA Affiliate”:  any Person that for purposes of Title IV of
ERISA is a member of the Company’s controlled group, or under common control
with the Company, within the meaning of Section 414(b) or (c) of
the Code.


 


“ERISA Event”:  (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with
respect to any 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 a 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 Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to terminate
such 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 withdrawal by the Company 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; (e)  the
conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (f) the adoption of an
amendment to a Plan requiring the provision of security to such Plan pursuant
to Section 307 of ERISA; or (g) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA.


 


“Eurodollar Borrowing”:  a Borrowing comprised of Eurodollar Loans.


 


“Eurodollar Loan”:  Loans bearing interest at a rate determined
by reference to the Eurodollar Rate.


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, (a) the rate of interest
determined on the basis of the rate for deposits in Dollars for a period equal
to such Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period.  In the event that such rate does
not appear on Page 3750 of the Telerate Service (or otherwise on such
service), the “Eurodollar Rate” 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 


 


5

















 


“Eurodollar Rate”
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 Eurodollar 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 Eurodollar Loan to be outstanding during such Interest Period.


 


“Eurodollar Reserve Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such
day in accordance with the following formula:


 


	
   

  	
  Eurodollar
  Rate

  	
   

  
	
   

  	
  1.00
  – Eurodollar Reserve Requirements

  	
   

  



 


“Eurodollar Reserve Requirements”:  for any day as applied to a Eurodollar Loan,
the aggregate (without duplication) of the maximum rates (expressed as a
decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or
other Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurodollar funding (currently referred
to as “Eurodollar liabilities” in Regulation D of such Board) maintained by a
member bank of such System.


 


“Event of Default”:  any of the events specified in Section 7;
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.


 


“Excluded Subsidiary”:  any Subsidiary of the Company that is (a) a
“controlled foreign corporation” of the Company under Section 957 of the
Code; (b) organized under the laws of a jurisdiction other than the United
States, any State thereof or the District of Columbia; (c) a Bankruptcy
Remote Special Purpose Entity; (d) prohibited by any Requirement of Law or
Contractual Obligation from providing a guaranty of the obligations of the
Company hereunder, provided that any such Contractual Obligation (i) shall
have been entered into or incurred prior to the Closing Date (or, in the case
of any Subsidiary formed or acquired by the Company subsequent to the Closing
Date, prior to such formation or acquisition) and (ii) in any event, shall
not have been entered into or incurred in contemplation of this provision; (e) any
Permitted Receivables Subsidiary; or (f) an Immaterial Subsidiary.


 


“Existing Indebtedness”:  Indebtedness of the Company and its
Subsidiaries existing immediately before the occurrence of the Closing Date.


 


“Extended Maturity Date”:  as defined in subsection 4.2.


 


“Facility”:  in an initial amount of $5,250,000,000 or, at
any time, the aggregate amount of the Lenders’ Commitments or the Loans
outstanding at such time.


 


“FAS 66”:  Statement of Financial Accounting Standards No. 66.


 


“FAS 140”:  Statement of Financial Accounting Standards No. 140.


 


6

















 


“Federal Funds Rate”:   for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to Citibank on such day on such transactions as determined
by the Agent.


 


“Fee Letter”:  that certain Fee Letter dated as of August 2,
2005 among the Arrangers and GMACCH Investor LLC.


 


“FIN 46(R)”:  FASB Interpretation No. 46 (revised December 2003).


 


“Financial Officer”:  with respect to any Person, the chief
financial officer, the chief accounting officer, a financial vice president or
the treasurer or assistant treasurer of such Person.


 


“Fitch”:  Fitch Investors’ Services Inc. or its
successors.


 


“Funding Office”:  for each Type of Loan, the Funding Office set
forth in respect thereof in the Administrative Schedule.


 


“GAAP”:  generally accepted accounting principles in
the United States of America as in effect from time to time and as applied by
the Company in the preparation of its public financial statements, except that
with respect to any Indebtedness that is determined in accordance with GAAP
contained in the definition of “Total Consolidated Indebtedness” and “Total
Capitalization” and the covenants contained in subsections 6.1 and 6.4, “GAAP”
shall mean generally accepted accounting principles in the United States of America
in effect on the date hereof and in accordance with the audited financial
statements of the Company for the fiscal year ended December 31, 2004, and
without giving effect to any changes thereto or in the interpretation or
application thereof (including without limitation any changes in, or in the
interpretation or application of, FAS 140 or FIN 46(R)) after such date in the
preparation of its public financial statements.


 


“Government
Sponsored Enterprises”:  the
collective reference to (i) the Federal Home Loan Mortgage Corp. (Freddie
MAC) and (ii) the Federal National Mortgage Association (Fannie Mae).


 


“Governmental
Authority”:  any nation or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of government.


 


“Guarantors”:  the wholly owned, first-tier and second-tier
Subsidiaries of the Company listed on Schedule II and each other Subsidiary of
the Company that executes and delivers a guaranty pursuant to subsection 5.12
or otherwise executes and delivers a guaranty or guaranty supplement in form
and substance reasonably satisfactory to the Agent, guaranteeing the other Loan
Parties’ obligations under the Loan Documents.


 


“Guaranty”:  a subsidiary guaranty substantially in the
form of Exhibit F hereto, executed by each of the Guarantors listed on
Schedule II, together with each other guaranty and guaranty 


 


7

















 


supplement
delivered by a Guarantor, in each case as amended, amended and restated,
supplemented or otherwise modified.


 


“Guarantee”:  as to any Person, any financial obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person or in any manner providing for the payment of
any Indebtedness of any other Person, provided that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course
of business.  The value of any Guarantee
of any Person shall be determined by reference to the carrying value of such
Guarantee, with the “carrying value” being determined in a manner consistent
with the carrying value of Guarantees as reflected on the Company’s financial
statements delivered pursuant to subsection 5.1.


 


“Hedge
Agreements”:  interest rate swap, cap
or collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging agreements.


 


“Hybrid
Capital”:  “hybrid capital”
instruments issued to GMAC on the Closing Date on terms reasonably acceptable
to the Arrangers in an aggregate liquidation amount not to exceed $250,000,000.


 


“Immaterial
Subsidiary”:  any direct or indirect
Subsidiary of the Company (a) whose total net assets, together with the
total net assets of all of its Subsidiaries, constitute less than 5% of the
total consolidated net assets of the Company and its Subsidiaries or (b) whose
total net income, together with the total net income of all of its
Subsidiaries, constitute less than 5% of the total consolidated net income of
the Company and its Subsidiaries, all as determined in accordance with GAAP.


 


“Indebtedness”:  as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP (but excluding any such
items to the extent accounted for under ARB 51, FAS 66 or FIN 46(R) in
each case in relation to the Company’s affordable tax credit syndication
business):


 


(a)  all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements, convertible
securities (to the extent that they have put provisions that are exercisable
during the term of this Agreement) or other similar instruments;


 


(b)  all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)  all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business);


 


(d)  indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;


 


(e)  capitalized
leases;


 


8

















 


(f)  all
Synthetic Debt (other than recourse factoring of receivables);


 


(g)  all
Guarantees of such Person in respect of any of the foregoing; and


 


(h)  all
obligations of such Person under Hedge Agreements.


 


Notwithstanding anything to the contrary herein, any obligation that is
non-recourse to any such Person other than to specified assets of such Person
shall not be deemed Indebtedness of such Person under this definition.


 


Notwithstanding
anything to the contrary contained in the foregoing, in no event shall “Indebtedness”
for any purposes of this Agreement include any “Mezzanine Equity” or more than
25% of any obligations in respect of Hybrid Capital as to which equity credit
is given by Moody’s or S&P, in each case, unless and until such time as
such equity or instruments become repayable or redeemable on a mandatory basis
in accordance with the terms thereof.


 


“Indebtedness
Factor”:  for each of the Specified
Subsidiaries and Specified Asset Categories listed below, the amounts set forth
opposite thereto:


 


	
  GMAC Commercial Mortgage Bank

  	
   

  	
  0.94

  
	
  Escrow Bank USA

  	
   

  	
  0.94

  
	
  GMAC Commercial Mortgage Bank Europe plc

  	
   

  	
  0.90

  
	
  Specified Mortgage Loan Interests

  	
   

  	
  0.92

  
	
  Specified Loans and Securities (other than A-Rated
  Specified Loans and Securities)

  	
   

  	
  0.97

  
	
  A-Rated Specified Loans and Securities

  	
   

  	
  0.90

  
	
  Cash and
  Cash Equivalents

  	
   

  	
  0.97

  



 


“Index
Debt”:  the Company’s long-term
senior unsecured Indebtedness.


 


“Initial
Maturity Date”:  March 23, 2008.


 


“Interest
Payment Date”:  (a) as to any
Base Rate Loan, the last day of each March, June, September and December to
occur while such Loan is outstanding and the date such Loan is paid in full, (b) as
to any Eurodollar Loan, the last day of the Interest Period applicable thereto
and (c) as to any Eurodollar Loan, having an Interest Period longer than
three months or 90 days, as the case may be, each day which is three months or
90 days, as the case may be, after the first day of the Interest Period
applicable thereto; provided that in addition to the foregoing, each of (x) the
date upon which the Loans have been paid in full shall constitute an “Interest
Payment Date” and (y) the Maturity Date shall be deemed to be an “Interest
Payment Date” with respect to any interest which is then accrued hereunder.


 


“Interest
Period”:  with respect to any
Eurodollar Loan:


 


9

















 


(a)  initially, the period
commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter or, to the extent available to all applicable Lenders, one-week,
nine or twelve months thereafter, as selected by the Company in its notice of
borrowing or notice of conversion, as the case may be, given with respect thereto;
and


 


(b)  thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six months thereafter or, to
the extent available to all applicable Lenders, nine or twelve months
thereafter, as selected by the Company by irrevocable notice to the Agent not
less than three Business Days prior to the last day of the then current
Interest Period with respect thereto;


 


provided
that all of the foregoing provisions relating to Interest Periods are subject
to the following:


 


(a)  if any Interest
Period would otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the
case of an Interest Period pertaining to a Eurodollar Loan, the result of such
extension would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding
Business Day; and


 


(b)  any Interest Period
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar month.


 


Notwithstanding anything to the
contrary contained in this Agreement, no Interest Period for Loans shall be
selected by the Company which ends on a date after the Maturity Date.


 


“Investors”:  the Equity Investors and the management,
officers and employees of the Company or any Subsidiary as of the Closing Date
who are or become investors in the Company.


 


“Lenders”:  as defined in the preamble hereto.


 


“Lien”:  any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.


 


“Loan”:  as defined in subsection 2.1.


 


“Loan
Documents”:  this Agreement, each
Note and the Guaranty.


 


“Loan
Parties”:  the Company and the
Guarantors.


 


“London
Banking Day”:  any day on which banks
in London are open for general banking business, including dealings in foreign
currency and exchange.


 


“Majority
Lenders”:  at any time, Lenders
holding or owed at least a majority in interest of the sum of the aggregate
principal amount of all Commitments or Loans outstanding.


 


“Material
Adverse Effect”:  a material adverse
effect on (a) the financial condition of the Company and its Subsidiaries
taken as a whole or (b) the validity or enforceability of this Agreement
or the rights or remedies of the Agent and the Lenders hereunder.


 


10

















 


“Maturity
Date”:  as applicable, (a) if
the maturity of the Facility has not been extended in accordance with
subsection 4.1, the Initial Maturity Date or (b) if the maturity of the
Facility has been extended in accordance with subject to subsection 4.2, the
Extended Maturity Date.


 


“Mezzanine
Equity”:  “mezzanine” or “temporary”
equity issued to members of management of the Company which the Company can
become obligated to redeem only upon the death or disability of the holder thereof.


 


“Moody’s”:  Moody’s Investors Service, Inc. and its
successors.


 


“Multiemployer Plan”:  a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which the Company or any ERISA Affiliate is making or accruing an
obligation to make contributions, or in respect of which the Company or any
ERISA Affiliate has liability under Section 4212 of ERISA.


 


“Multiple Employer Plan”:  a single employer plan, as defined in Section 4001(a)(15)
of ERISA, that (a) is maintained for employees of the Company or any ERISA
Affiliate and at least one Person other than the Company and the ERISA
Affiliates or (b) was so maintained and in respect of which the Company or
any ERISA Affiliate has liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.


 


1.             “Net Cash Proceeds”:  in respect of the issuance or incurrence of
Debt by any Person, the excess of (a) the sum of the cash and cash
equivalents received in connection with such incurrence or issuance over (b) 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 such
amounts were not deducted in determining the amount referred to in clause (a).


 


2.             “Non-Consenting Lender”:  in the event that the Majority Lenders have
agreed to any consent, waiver or amendment pursuant to subsection 9.1 that
requires the consent of the Majority Lenders, any Lender who is entitled to
agree to such consent, waiver or amendment but who does not so agree.


 


“Non-Excluded
Taxes”:  as defined in subsection
2.15(a).


 


“Non-Executing
Banks”:  as defined in subsection
9.8(b).


 


“Non-US
Lender”:  as defined in subsection
2.15(b).


 


“Note”:  as defined in subsection 9.6(d).


 


“Participant”:  as defined in subsection 9.6(c).


 


“Patriot
Act”:  as defined in subsection 9.14.


 


“Payment
Office”:  for each Type of Loan, the
Payment Office set forth in respect thereof in the Administrative Schedule.


 


3.             “PBGC”: 
the Pension Benefit Guaranty Corporation (or any successor).


 


11

















 


“Permanent
Securities”:  any public issuance or
private placement of unsecured debt securities by the Company or its
Subsidiaries (other than (x) any Designated Borrower organized under the
laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia, solely to the extent that the repatriation
of the proceeds therefrom would give rise to adverse tax consequences, (y) any
Subsidiary organized under the laws of a jurisdiction other than the United
States of America, any State thereof or the District of Columbia that is not a
Designated Borrower, and (z) any Specified Subsidiary) having a maturity
of two years or more, in each case to the extent that the aggregate amount for
all such issuances or placements exceeds $100,000,000.


 


“Permitted Receivables Financing”:  the limited recourse sale or financing of any
real estate receivables and mortgage notes and related security by the Company
or any of its Subsidiaries in connection with the sale, securitization or
syndication thereof (including for purposes of this definition planned sales,
securitizations or syndications scheduled (in the ordinary course of business
consistent with past practice) for execution within 60 days), which sale,
securitization or syndication is (a) (i) with recourse only to the
extent usual and customary in asset securitization transactions for companies
with credit characteristics similar to those of the Company or such Subsidiary
and (ii) consistent with past practice or prudent business practice or (b) is
otherwise upon terms and conditions reasonably satisfactory to the Agent.


 


“Permitted Receivables Subsidiary”:  any single purpose Subsidiary engaged
principally in a Permitted Receivables Financing.


 


“Person”:  an individual, partnership, corporation,
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.


 


4.             “Plan”:  a Multiple Employer Plan or a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of any Loan Party or any ERISA Affiliate and no Person
other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.


 


“Purchase Agreement”:  that certain Stock Purchase Agreement dated
as of August 2, 2005, as amended, among General Motors Acceptance
Corporation, GMAC Mortgage Group, Inc., GMAC Commercial Holding Corp. and
GMACCH Investor LLC, as amended, supplemented or otherwise modified from time
to time.


 


“Qualifying IPO”:  the issuance by the Company or a direct or
indirect corporate parent thereof of its common equity interests in an
underwritten primary and/or secondary public offering (other than a public
offering pursuant to a registration statement on Form S-8) pursuant to an
effective registration statement filed with the SEC in accordance with the
Securities Act of 1933.


 


“Receivable”:  any right of payment from or on behalf of any
obligor (including mortgagor), whether constituting an account, chattel paper,
instrument, general intangible or otherwise, acquired or arising from the
financing or leasing by the Company or any of its Subsidiaries of property or
services, and monies due thereunder, security interests in the property and
services financed or leased thereby and any and all other related rights.


 


12

















 


“Reference Lenders”:  Citibank, JPMorgan Chase Bank, N.A. and
Deutsche Bank AG New York Branch.


 


“Register”:  as defined in subsection 9.6(b)(iv).


 


“Requirement of Law”:  as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.


 


“S&P”:  Standard & Poor’s Ratings Services,
a division of The McGraw-Hill Companies, Inc., and its successors.


 


“Senior Credit Facility”:  the $5,500,000,000 Credit Agreement dated as
of March 23, 2006 among the Company, the subsidiaries of the Company party
thereto, Citibank, as Agent, and the Lenders referred to therein, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof.


 


5.             “Solvent”
and “Solvency”:  with respect to
any Person on a particular date, that on such date (a) the fair value of
the property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or liabilities beyond
such Person’s ability to pay such debts and liabilities as they mature and (d) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would constitute
an unreasonably small capital.  Unless
otherwise provided under applicable law, the amount of contingent liabilities
at any time shall be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.


 


6.             “Specified Asset
Categories”:  the collective
reference to (i) Specified Mortgage Loan Interests and, (ii) Specified Loans and Securities and (iii) cash and
Cash Equivalents.


 


7.             “Specified Loans
and Securities”:  all fixed and
floating rate mortgage loan interests and highly-rated securities
which are not owned by any Specified Subsidiary and (a) are direct
obligations of any Government Sponsored Enterprise or the United States
government or any agency thereof and backed by the full faith and credit of the
United States or (b) are obligations that any Government Sponsored
Enterprise or the United States government or any agency thereof backed by the
full faith and credit of the United States has guaranteed or committed to
purchase or (c) are rated, on a long-term basis, at least “A-” by S&P,
“A3” by Moody’s or “A-” by Fitch.


 


8.             “Specified
Mortgage Loan Interests”:  all fixed and floating rate mortgage
loan interests that are not owned by any Specified Subsidiary and either (a) have
a debt  service coverage ratio (as
determined in complianceaccordance with the Company’s underwritingcredit rating standards as in effect onof the date hereofCompany) of at least 1.20: to 1.00
and a loan to value ratio (as determined in complianceaccordance with the Company’s
underwriting standards  as in effect onof the date
hereofCompany) of nonot
greater than 80% according to the loan
underwriting files used by the Company to manage such assets, and/or
(b) are loan interests that have been targeted for, or are the subject of, a sale, 


 


13

















 


securitization
or syndication transaction which has previously closed or which is scheduled (in the ordinary course of business consistent
with past practice)  for execution within 60180
days.


 


9.             “Specified
Subsidiaries”:  the collective
reference to (i) GMAC Commercial Mortgage Bank, an institution chartered
under the laws of the State of Utah, (ii) Escrow Bank USA, an institution
chartered under the laws of the State of Utah, (iii) GMAC Commercial
Mortgage Bank Europe plc, an Irish licensed bank and (iv) any Subsidiary
of any of the foregoing.


 


“Sub-Agent”:  any Affiliate of the Agent as may be
designated in writing to the Company.


 


“Subsidiary”:  as to any Person, any corporation, limited
liability company, partnership or other similar entity, of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person, or by one or
more Subsidiaries, or by such Person and one or more Subsidiaries.  Unless otherwise qualified, all references to
a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Company.


 


“Surviving Indebtedness”:  Indebtedness of the Company and each of its
Subsidiaries  outstanding immediately before
and after the Closing Date and set forth on Schedule IV hereto.


 


“Syndication Agent”:  as defined in the preamble hereto.


 


“Synthetic Debt”:  with respect to any Person, without
duplication of any clause within the definition of “Indebtedness,” all (a) obligations
of such Person under any lease that is treated as an operating lease for
financial accounting purposes and a financing lease for tax purposes (i.e., a “synthetic
lease”), (b) obligations (other than syndication proceeds in the ordinary
course) of such Person in respect of transactions entered into by such Person
(other than deposit liabilities), the proceeds from which would be reflected on
the financial statements of such Person in accordance with GAAP as cash flows
from financings at the time such transaction was entered into (other than as a
result of equity contributions or the issuance of equity interests) and (c) obligations
of such Person in respect of other transactions entered into by such Person
that are not otherwise addressed in the definition of “Indebtedness” or in
clause (a) or (b) above that are intended to function primarily as a borrowing
of funds (including, without limitation, any minority interest transactions
that function primarily as a borrowing).


 


“Taxes”: as defined in subsection 2.15(a).


 


“Total Capitalization”:  as of any date of determination, (a) the
sum of (i) Total Consolidated Indebtedness and (ii) consolidated
shareholders’ equity of the Company and its Subsidiaries as determined in
accordance with GAAP applied on a consistent basis (it being understood and
agreed that, without limiting the generality of the foregoing, “consolidated
shareholders’ equity” as used in this definition shall include Mezzanine Equity
and 75% of the amount of any Hybrid Capital as to which equity credit is given
by Moody’s or S&P (including, for the avoidance of doubt, any back-to-back
instruments in respect thereof), in each case unless and until such time as
such equity or instruments become repayable or redeemable on a mandatory basis
in accordance with the terms thereof), less (b) the aggregate amount of 


 


14

















 


Attributed Equity of all
Banking and Market Destined Assets  (excluding, solely for purposes of calculating the ratio at any time of
Total Consolidated Indebtedness to Total Capitalization and determining
compliance with Sections 6.1 and 6.4(g), the Attributed Equity of Banking and
Market Destined Assets comprising cash and Cash Equivalents, to the extent that
such assets are classified as Banking and Market Destined Assets pursuant to
clause (a) of the definition thereof).


 


“Total Consolidated Indebtedness”:  as of any date of determination, (a) the
sum of (i) all indebtedness for borrowed money of the Company and its
Subsidiaries on a consolidated basis as reflected on the consolidated balance
sheet of the Company as determined in accordance with GAAP applied on a
consistent basis (but in any event excluding Mezzanine Equity and 75% of the
amount of any obligations in respect of any Hybrid Capital as to which equity
credit is given by Moody’s or S&P (including, for the avoidance of doubt,
any back-to-back obligations in respect thereof), in each case unless and until
such time as such equity or instruments become repayable or redeemable on a
mandatory basis in accordance with the terms thereof) and (ii) Indebtedness
of the type described in clause (f)  of the definition thereof (but in any
event excluding Mezzanine Equity and 75% of the amount of any obligations in
respect of any Hybrid Capital as to which equity credit is given by S&P or
Moody’s (including, for the avoidance of doubt, any back-to-back obligations in
respect thereof), in each case unless and until such time as such equity or
instruments become repayable or redeemable on a mandatory basis in accordance
with the terms thereof) and (g) of the definition thereof, and provided that
in the case of such clause (g), such Guarantees shall be included for purposes
of this definition only to the extent they are guarantees of, and only in the
amount of, any Indebtedness referred to in clauses (i) and (ii) of
this clause (a)) of the Company and its Subsidiaries on a consolidated basis,
as determined in accordance with GAAP applied on a consistent basis, less (b) the
aggregate amount of Attributed Indebtedness with respect to all Banking and
Market Destined Assets  (excluding,
solely for purposes of calculating the ratio at any time of Total Consolidated
Indebtedness to Total Capitalization and determining compliance with Sections
6.1 and 6.4(g), the Attributed Indebtedness with respect to Banking and Market
Destined Assets comprising cash and Cash Equivalents, to the extent that such
assets are classified as Banking and Market Destined Assets pursuant to clause (a) of
the definition thereof).


 


“Transferee”:  as defined in subsection 9.6(g).


 


“Treaty on European Union”:  the Treaty of Rome of March 25, 1957, as
amended by the Single European Act of 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992 and came into effect on November 1,
1993), as amended from time to time.


 


“Type”:  as to any Loan, its nature as an Base Rate
Loan or Eurodollar Loan.


 


“US Tax Compliance Certificate”:  as defined in subsection 2.15(b).


 


“Voting Stock”:  capital
stock issued by a corporation, or equivalent interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the happening
of such a contingency.


 


1.2.  Other
Definitional Provisions.  (a)Unless otherwise specified therein, all
terms defined in this Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto.


 


15

















 


(a)  As
used herein, and any certificate or other document made or delivered pursuant
hereto, accounting terms relating to the Company and its Subsidiaries not
defined in subsection 1.1 and accounting terms partly defined in subsection
1.1, to the extent not defined, shall have the respective meanings given to
them under GAAP.


 


(b)  The
words “hereof”, “herein” and “hereunder” and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references
are to this Agreement unless otherwise specified.


 


(c)  The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.


 


SECTION 2.  AMOUNT AND TERMS OF THE
FACILITIES


 


2.1.  Commitments. 
Subject to the terms and conditions hereof, each Lender severally agrees
to make a term loan (a “Loan”) to the Company on the Closing Date in an
aggregate amount not to exceed the amount of the Commitment of such
Lender.  Each Borrowing shall consist of
Loans made simultaneously by the Lenders ratably according to their
Commitments.  Amounts borrowed under this
subsection 2.1 and repaid or prepaid may not be reborrowed.  The Loans shall be made in Dollars and may  from time to time be (i) Eurodollar Loans or (ii) Base
Rate Loans, in each case as determined by the Company and notified to the Agent
in accordance with subsection 2.5.


 


2.2.  Procedure
for Borrowing.  Each Borrowing shall be made upon irrevocable
notice to the Agent given not later than (x) 12:00 Noon (New York City
time) on the third  Business Day
prior to the Closing Date in the case of a Borrowing consisting of Eurodollar
Loans and (y) 10:00 A.M. (New York City time) on the Closing Date in
the case of a Borrowing consisting of Base Rate Loans, specifying, in each
case, (A) the amount to be borrowed, (B) the requested borrowing
date, (C) the Type of Loans and (D) if the borrowing is to be
entirely or partly of Eurodollar Loans, the initial Interest Period
therefor.  Upon receipt of such notice
from the Company, the Agent shall promptly notify each Lender.  Each Lender will make the amount of its pro
rata share of the Borrowing available to the Agent for the account of the
Company at the Funding Office, and at or prior to 1:00 P.M.
on the Closing Date in funds immediately available to the Agent.  The Borrowing will then immediately be made
available to the Company by the Agent crediting the account of the Company on
the books of such Funding Office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as received by the
Agent.


 


2.3.  Termination or Reduction of Commitments.  The aggregate Commitments shall be
automatically and permanently reduced to zero on the date of the Borrowing.


 


2.4.  Prepayments.  (b)Optional.  The Company may, at any time and from time to
time, prepay the Loans, in whole or in part, without premium or penalty (but
subject to the provisions of subsection 2.16), (i) in the case of Base Rate
Loans, upon irrevocable notice to the Agent not later than 11:00 A.M. on
the date of such prepayment and (ii) in the case of Eurodollar Loans, upon
at least two Business Days’ irrevocable notice to the Agent, in each case
specifying the date and amount of prepayment and the Type or Types of the Loans
being prepaid, and, if of a combination of Types, the amount allocable to
each.  Upon receipt of any such notice
the Agent shall promptly notify each Lender thereof.  If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein, together
with any amounts payable pursuant to subsection 2.16 and accrued interest to
such date on the amount prepaid.  Amounts
prepaid on account of the Loans may not be reborrowed.  


 


16

















 


Partial prepayments shall be
in an aggregate principal amount equal to $5,000,000 or a multiple of
$1,000,000 in excess thereof.


 


(a)  Mandatory.


 


(i)  The Company
shall, on the Initial Maturity Date, prepay an aggregate amount of the Loans
equal to the excess, if any, of (A) the aggregate principal amount of the
Loans then outstanding over (B) $2,625,000,000, such amount to be applied
ratably to the outstanding principal amount of the Loans then owing to the
Lenders.


 


(ii)  The Company
shall, within five Business Days following the receipt by the Company or any of
its Subsidiaries of any Net Cash Proceeds from the issuance or incurrence of
any Permanent Securities, prepay the Loans in an amount equal to such Net Cash
Proceeds, such amount to be applied ratably to the outstanding principal amount
of the Loans then owing to the Lenders; provided that, notwithstanding the
foregoing, if the Company shall have prepaid the Loans by at least $1,500,000,000
in the aggregate prior to the first issuance of Permanent Securities after the
Closing Date, then the Company shall, within five Business Days following the
receipt by the Company or any of its Subsidiaries of the Net Cash Proceeds from
the issuance or incurrence of any Permanent Securities (such Net Cash Proceeds,
““Securities Proceeds”“), prepay the Loans as follows (all such
prepayments to be applied ratably to the outstanding principal amount of the
Loans then owing to the Lenders):


 


(A)          100% of Securities Proceeds shall be
applied to prepay the Loans, up to an aggregate amount of $1,500,000,000 of
prepayments from all Securities Proceeds pursuant to this clause (A);


 


(B)           50% of Securities Proceeds (if any)
in excess of an aggregate of $1,500,000,000 (for all Permanent Securities)
shall be applied to prepay the Loans, up to an aggregate amount of $750,000,000
of prepayments from all Securities Proceeds pursuant to this clause (B); and


 


(C)           100% of Securities Proceeds (if any)
in excess of an aggregate of $3,000,000,000 (for all Permanent Securities)
shall be applied to prepay the Loans.


 


2.5.  Conversion
and Continuation Options.  (c)The Company may elect from time to time to
convert Eurodollar Loans to Base Rate Loans by giving the Agent at least one Business
Day’s prior irrevocable notice of such election; provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto.  The Company
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Agent at least three Business Days’ prior irrevocable notice of such
election.  Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor.  Upon receipt
of any such notice the Agent shall promptly notify each Lender thereof.  All or any part of outstanding Eurodollar
Loans and Base Rate Loans may be converted as provided herein; provided
that (i) no Loan may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Agent has or the Majority
Lenders have determined that such conversion is not appropriate and (ii) no
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Maturity Date.


 


(a)  Any
Eurodollar Loans may be continued as Eurodollar Loans upon the expiration of
the then current Interest Period with respect thereto by the Company giving
notice to the Agent, in accordance with the applicable provisions of the term “Interest
Period” set forth in subsection 1.1, of the length of the next Interest Period
to be applicable to such Loans; provided that (i) no Eurodollar


 


17
















 


Loan may be
continued as such when any Event of Default has occurred and is continuing and
the Agent has or the Majority Lenders have determined that such continuation is
not appropriate and (ii) no Eurodollar Loan or may be continued as such
after the date that is one month prior to the Maturity Date and provided,
further, that if (A) the Company shall fail to give any required
notice as described above in this paragraph, such Eurodollar Loans shall be
continued on the last day of the then current Interest Period as Eurodollar
Loans with an Interest Period of one month and (B) if such continuation is
not permitted pursuant to the preceding proviso any such Eurodollar Loans shall
be automatically converted to Base Rate Loans.


 


2.6.  Minimum
Amounts of Eurodollar Borrowings; Interest Periods.  All
conversions and continuations of Loans hereunder and all selections of Interest
Periods for Loans hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, there shall not be more
than an aggregate of 10  Eurodollar
Borrowings outstanding at any one time in respect of the Facility.


 


2.7.  Repayment of Loans; Evidence of Debt. 
(d)The Company shall repay the aggregate outstanding principal amount of
the Loans made to the Company to the Agent for the ratable account of the
Lenders on the Maturity Date (or such earlier date as the Loans become due and
payable pursuant to Section 7).


 


(a)  The
Company hereby further agrees to pay interest in immediately available funds at
the office of the Agent on the unpaid principal amount of each Loan made to the
Company from time to time from the date hereof until payment in full thereof at
the rates per annum, and on the dates, set forth in subsection 2.8.


 


(b)  Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Company to the appropriate Funding
Office of such Lender resulting from each Loan made by such Funding Office of
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Funding Office of such Lender from time to time under
this Agreement.


 


(c)  The
Agent shall maintain the Register pursuant to subsection 9.6(b), and a
subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount of each Loan made hereunder, the Type of
each Loan made and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Company to each Lender hereunder and (iii) the amount of any sum
received by the Agent hereunder from the Company and each Lender’s share
thereof.


 


(d)  The
entries made in the Register and accounts maintained pursuant to paragraphs (c) and
(d) of this subsection 2.7 shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations of
the Company therein recorded; provided, however, that the failure
of any Lender or the Agent to maintain such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of the Company to repay (with applicable interest) the Loans
made to the Company in accordance with the terms of this Agreement.


 


2.8.  Interest
Rates and Payment Dates.  (e)Each Base Rate Loan shall bear interest at
a rate per annum equal at all times to the Base Rate.


 


18

















 


(a)  Subject
to subsection 2.14(c), the Loans comprising each Eurodollar Borrowing shall
bear interest at a rate per annum equal to the Eurodollar Rate for the Interest
Period in effect for such Eurodollar Borrowing plus the Applicable
Margin.


 


(b)  Interest
shall be payable in arrears on each Interest Payment Date; provided that
interest accruing pursuant to paragraph (e) of this subsection 2.8 shall
be payable from time to time on demand.


 


(c)  The
“Applicable Margin” with respect to each Eurodollar Loan shall be the
applicable percentage amount set forth in the table below based upon the
applicable rating of the Index Debt on such date:


 


	
   

  	
   

  	
  Level 1 

  Index Debt 

  rated:

  	
   

  	
  Level 2 

  Index Debt 

  rated:

  	
   

  	
  Level 3 

  Index Debt 

  rated:

  	
   

  	
  Level 4 

  Index Debt 

  rated:

  
	
  S&P

  	
   

  	
  BBB+ or better

  	
   

  	
  BBB

  	
   

  	
  BBB-

  	
   

  	
  Lower than Level 3

  
	
  Fitch

  	
   

  	
  BBB+ or better

  	
   

  	
  BBB

  	
   

  	
  BBB-

  	
   

  	
  Lower than Level 3

  
	
  Moody’s

  	
   

  	
  Baa1 or better

  	
   

  	
  Baa2

  	
   

  	
  Baa3

  	
   

  	
  Lower than Level 3

  
	
  Applicable Margin

  	
   

  	
  0.500%

  	
   

  	
  0.575%

  	
   

  	
  0.650%

  	
   

  	
  0.825%

  



 


In the event that, and from and after the time and
for so long as (but only for so long as), the ratings established by S&P,
Fitch and Moody’s are split, the applicable Level shall be determined
exclusively by reference to the highest of the available ratings except that,
in the event that the lowest of such ratings is more than one level below the
highest of such ratings, then pricing will be determined based on the lower of
the two highest ratings.  If S& P,
Fitch or Moody’s shall cease to issue ratings of debt securities generally,
then the Agent and the Company shall negotiate in good faith to agree upon a
substitute rating agency (and to correlate the system of ratings of such
substitute rating agency with that of the rating agency for which it is
substituting) and (i) until such substitute rating agency is agreed upon,
the foregoing test may be satisfied on the basis of the rating assigned by the
other such rating agencies and (ii) after such substitute rating agency is
agreed upon, the foregoing test may be satisfied on the basis of the rating
assigned by the other rating agencies and such substitute rating agency.


 


(d)  If
all or a portion of (i) the principal amount of any Loan, (ii) any
interest payable thereon or (iii) any facility fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection 2.8 plus 2.00% from the date of
such non-payment until such amount is paid in full (as well after as before
judgment).  For purposes of this
Agreement, principal shall be “overdue” only if not paid in accordance with the
provisions of subsection 2.8.


 


2.9.  Facility
Fee.  The Company shall pay to the Agent, for the account
of each Lender, a facility fee at the rate per annum equal to (a) for each
day that the applicable Level of the Company is Level 1, 0.100%, (b) for
each day that the applicable Level of the Company is Level 2, 0.125%, (c) for



 


19

















 


each day that the applicable Level of the Company is Level 3, 0.150%
and (d) for each day that the applicable Level of the Company is Level 4,
0.175%, in each case of the the aggregate Commitments of (or if the Commitments
have been terminated, the aggregate outstanding principal of the Loans made by)
such Lender, in each case in effect or outstanding, as applicable, on such
day.  On the first Business Day following
the last day of each fiscal quarter of the Company and on the Maturity Date
(or, if earlier, on the date upon which both the Commitments are terminated and
the Loans are paid in full), the Company shall pay to the Agent, for the
ratable benefit of each Lender, the portion of such facility fee which accrued
during the fiscal quarter most recently ended (or, in the case of the payment
due on the Maturity Date, the portion thereof ending on such date).


 


2.10.  Computation
of Interest and Fees.  (f)Interest on all Loans shall be computed on
the basis of the actual number of days elapsed over a year of 360 days or, in
the case of Base Rate Loans, a year of 365 or 366 days as appropriate (in each
case including the first day but excluding the last day).  Each determination of an interest rate by the
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Lenders in the absence of manifest error.  All fees shall be computed on the basis of a
year composed of twelve 30-day months. 
The Agent shall, at any time and from time to time upon request of the
Company, deliver to the Company a statement showing the quotations used by the
Agent in determining any interest rate applicable to the Loans pursuant to this
Agreement.


 


(a)  If
any Reference Lender shall for any reason no longer have a Commitment or a Loan
outstanding, such Reference Lender shall thereupon cease to be a Reference
Lender, and if, as a result thereof, there shall only be one Reference Lender
remaining, the Company and the Agent (after consultation with the Lenders) shall,
by notice to the Lenders, designate another Lender as a Reference Lender so
that there shall at all times be at least two Reference Lenders.


 


(b)  Each
Reference Lender shall use its best efforts to furnish quotations of rates to
the Agent as contemplated hereby.  If any
of the Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Agent upon its request, the rate of interest shall, subject to the
provisions of subsection 2.11, be determined on the basis of the quotations of
the remaining Reference Lenders.


 


2.11.  Inability
to Determine Interest Rate.  If the Eurodollar Rate cannot be determined
by the Agent in the manner specified in the definition of the term “Eurodollar
Rate” contained in subsection 1.1 of this Agreement, the Agent shall give
telecopy or telephonic notice thereof to the Company and the Lenders as soon as
practicable thereafter.  Until such time
as the Eurodollar Rate can be determined by the Agent in the manner specified
in the definition of such term contained in said subsection 1.1, no further
Eurodollar Loans shall be continued as such at the end of the then current
Interest Period or (other than any Eurodollar Loans previously requested and
with respect to which the Eurodollar Rate previously was determined) shall be
made, nor shall the Company have the right to convert Base Rate Loans to
Eurodollar Loans.


 


2.12.  Pro
Rata Treatment and Payments.  (g)Each Borrowing from the Lenders hereunder
and (except as provided in subsection 2.17(c)) any reduction of the Commitments
of the Lenders shall be made pro rata according to the respective Commitments
of the Lenders under the Facility.  Each
payment (including each prepayment) by the Company on account of principal of
and interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts of the Loans made to the Company then held by the
Lenders.


 


(a)  All
payments (including prepayments) to be made by the Company hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
set-off or counterclaim.  All payments
(including prepayments) in respect of Loans shall be made in immediately 


 


20

















 


available
funds at the Payment Office, and at or prior to 12:00  Noon (New York city time), on the due date thereof.  The Agent shall distribute such payments to
the Lenders promptly upon receipt in like funds as received.  If any payment hereunder (other than payments
on the Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. 
If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day.


 


2.13.  Illegality.  Notwithstanding any other
provision herein, if the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Agreement,
such Lender shall give notice thereof to the Agent and the Company describing
the relevant provisions of such Requirement of Law (and, if the Company shall
so request, provide the Company with a memorandum or opinion of counsel of
recognized standing (as selected by such Lender) as to such illegality),
following which (a) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert Base Rate Loans
to Eurodollar Loans shall forthwith be canceled and (b) such Lender’s
Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans (A) on the respective last days of the
then current Interest Periods with respect to such Loans or (B) within
such earlier period as required by law. 
If any such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
Company shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 2.16.


 


2.14.  Increased
Costs.  Except with respect to Taxes, which are
governed exclusively by subsection 2.15 of this Agreement, (h)If there shall be
(i) any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining any Loans or (ii) any reduction in any amount
receivable in respect thereof, and, in each case, such increased cost or
reduced amount receivable is due to either:


 


(x)  the introduction of or any change
in or in the interpretation of any law or regulation after the date hereof; or


 


(y)  the compliance with any guideline
or request made after the date hereof from any central bank or other
Governmental Authority (whether or not having the force of law),


 


then (subject to the provisions of subsection
2.16) the Company shall from time to time, upon written demand by such Lender
pay such Lender additional amounts sufficient to compensate such Lender for
such increased cost or reduced amount receivable.


 


(a)  If
any Lender shall have reasonably determined that (i) the applicability of
any law, rule, regulation or guideline adopted after the date hereof pursuant
to or arising out of the July 1988 paper of the Basle Committee on Banking
Regulations and Supervisory Practices entitled “International Convergence of
Capital Measurement and Capital Standards,” or (ii) the adoption after the
date hereof of any other law, rule, regulation or guideline regarding capital
adequacy affecting such Lender, or (iii) any change arising after the date
hereof in the foregoing or in the interpretation or administration of any of
the foregoing by any Governmental Authority, central bank or comparable agency
charged with the 


 


21

















 


interpretation
or administration thereof, or (iv) compliance by such Lender (or any
Funding Office of such Lender), or any holding company for such Lender which is
subject to any of the capital requirements described above, with any request or
directive of general application issued after the date hereof regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender’s capital or on the capital of any such holding
company as a direct consequence of such Lender’s obligations hereunder to a
level below that which such Lender or any such holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender’s policies and the policies of such holding company with respect to
capital adequacy) by an amount deemed by such Lender to be material, then
(subject to the provisions of subsection 2.16) from time to time such Lender
may request the Company to pay to such Lender such additional amounts as will
compensate such Lender or any such holding company for any such reduction
suffered, net of the savings (if any) which may be reasonably projected to be
associated with such increased capital requirement.  Any certificate as to such amounts which is
delivered pursuant to subsection 2.16(a) shall, in addition to any items
required by subsection 2.16(a), include the calculation of the savings (if any)
which may be reasonably projected to be associated with such increased capital
requirement; provided that in no event shall any Lender be obligated to
pay or refund any amounts to Company on account of such savings.


 


(b)  In
the event that any Governmental Authority shall impose any Eurodollar Reserve
Requirements which increase the cost to any Lender of making or maintaining
Eurodollar Loans, then (subject to the provisions of subsection 2.16) the
Company shall thereafter pay in respect of the Eurodollar Loans of such Lender
a rate of interest based upon the Eurodollar Reserve Rate (rather than upon the
Eurodollar Rate).  From and after the
delivery to the Company of the certificate required by subsection 2.16(a), all
references contained in this Agreement to the Eurodollar Rate shall be deemed
to be references to the Eurodollar Reserve Rate with respect to each such
affected Lender.


 


2.15.  Taxes. 
(i)All payments made by the Company under this Agreement and any other
Loan Document shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
(collectively, “Taxes”), now or hereafter imposed, levied, collected, withheld
or assessed by any Governmental Authority, excluding net income taxes and
franchise taxes or any other tax based upon net income imposed on the Agent or
any Lender as a result of a present or former connection between the Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Agent or such Lender having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement) or any other Loan Document.  If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings (“Non-Excluded
Taxes”) are required to be withheld from any amounts payable to the Agent
or any Lender hereunder, the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Non-Excluded Taxes) a net amount equal to the amount it
would have received had no such deduction or withholding been made.  Notwithstanding the foregoing, the Company
shall not be required to increase any such amounts payable to any Lender with
respect to any Non-Excluded Taxes (i) that are attributable to such Lender’s
failure to comply with the requirements of paragraph (b) of this
subsection 2.15 or (ii) that are withholding taxes applicable to such
Lender at the time such Lender becomes a party to this Agreement, except to the
extent that such Lender’s assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Company with respect to such
Non-Excluded Taxes pursuant to this paragraph. 
Whenever any Non-Excluded Taxes are payable by the Company, as promptly
as possible thereafter, the Company shall send to the Agent for its own account
or for the account of such Lender, as the case may be, a certified copy of an
original official receipt received by the Company showing payment thereof.  If the Company fails to 


 


22

















 


pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the Company shall
indemnify the Agent, each Sub-Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Agent or any Lender as a
result of any such failure.  The
agreements in this subsection 2.15 shall survive the termination of this
Agreement and the payment of all other amounts payable hereunder.


 


(a)  Each
Lender that is not a “U.S. Person” as defined in Section 7701(a)(30) of
the Code (“Non-US Lender”) shall:


 


(X)(i)  on or before the date such Non-US Lender becomes a Lender
or a Participant under this Agreement, deliver to the Company and the Agent two
duly completed copies of United States Internal Revenue Service Form W-8BEN
or W-8ECI, or successor applicable form, as the case may be, certifying that it
is entitled to receive payments under this Agreement without deduction,
withholding or backup withholding of any United States federal income taxes;


 


(ii)  if, and to the extent, such Lender is legally entitled to do
so, deliver to the Company and the Agent two further copies of any such form or
certification on or before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Company; and


 


(iii)  if, and to the extent, such Lender is legally entitled to
do so, obtain such extensions of time for filing and completing such forms or
certifications as may reasonably be requested by the Company or the Agent;


 


(Y)  in the case of any such Non-US Lender
claiming exception from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payment of “portfolio interest”,
deliver on or before the date such Non-US Lender becomes a Lender or a
Participant under this Agreement,  (A) a
certificate substantially in the form of Exhibit E (any such certificate a
“US Tax Compliance Certificate”), (B) two accurate and complete
original signed copies of Internal Revenue Service Form W-8BEN, or
successor applicable form, certifying to such Lender’s legal entitlement at the
date of such certificate to a complete exemption from US withholding tax, (C) two
further copies of such form and certification (I) on or before the date it
expires or becomes obsolete and (II) if and to the extent such Non-US
Lender is then legally able to provide such form or certification, after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Company, and, (D) if and to the extent such Non-US
Lender is then legally able to do so, if necessary, obtain any extensions of
time reasonably requested by the Company or the Agent for filing and completing
such forms, and (iii) agree, if and to the extent such Non-US Lender is
then legally entitled to do so, upon reasonable request by the Company, to provide
to the Company (for the benefit of the Company and the Agent) such other forms
as may be reasonably required in order to establish the legal entitlement of
such Lender to a complete exemption from or reduced rate of withholding with
respect to payments under this Agreement and any Notes; or


 


(Z)  in the case of any Lender that is entitled
to an exemption from or reduction of non-U.S. withholding tax under the law of
the jurisdiction in which the Company is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement, deliver
to the Company, at the time or times prescribed by applicable law or reasonably
requested by the Company, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in 


 


23

















 


such
Lender’s judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.


 


unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such Lender
so advises the Company and the Agent.  Each Non-U.S. Lender that is an Assignee or
Participant hereunder pursuant to subsection 9.6 shall, upon the effectiveness
of the related transfer, be required to provide all of the forms and statements
required pursuant to this subsection 2.15; provided that in the case of
a Participant such Participant shall furnish all such required forms and
statements, documentation or certifications to the Lender from which the
related participation shall have been purchased, and such Lender shall in turn
furnish all such required forms (including, without limitation, Internal
Revenue Service Form W-8IMY), documentation and certifications to the
Company and the Agent.  Any Lender or
Participant that is a “United States person” (within the meaning of Code
section 7701(a)(30)) but is not incorporated under the laws of the United
States or a state thereof shall furnish the Company and the Agent with a Form W-9
or successor form thereto, certifying an exemption from backup withholding in
respect of payments hereunder, if it is legally entitled to do so.


 


(b)  If
and to the extent that a Lender, in its sole discretion (exercised in good
faith), determines that it has received or been granted a credit against, a
relief from, a remission of, or a repayment of, any Non-Excluded Tax, in
respect of which it has received additional payment under subsection 2.15(a) of
this Agreement, then such Lender shall pay to the the Company the amount of
such credit, relief, remission or repayment so determined by such Lender, in
its sole discretion (exercised in good faith), attributable to such deduction
or withholding of Non-Excluded Tax; provided that the Lender shall not
be obligated to make any payment under this paragraph in respect of such
credit, relief, refund, remission or repayment until the Lender, in its sole
judgment (exercised in good faith), is satisfied that its tax affairs for the
tax year in respect of which such credit, relief, remission or repayment was
obtained have been finally settled.


 


2.16.  Indemnity(a)  .  If (a) any payment of principal of any
Eurocurrency Loan is made by the Company to or for the account of a Lender
other than on the last day of the Interest Period for such Eurocurrency Loan as
a result of a payment or conversion pursuant to subsection 2.4, 2.5, 2.7, or
2.14, as a result of acceleration of the maturity of the Loans pursuant to
subsection 7 or for any other reason, (b) any Borrowing of Eurocurrency
Loans is not made as a result of a withdrawn notice of borrowing, (c) any
Base Rate Loan is not converted into a Eurocurrency Loan as a result of a
withdrawn notice of conversion or continuation, (d) any Eurocurrency Loan
is not continued as a Eurocurrency Loan as a result of a withdrawn notice of
conversion or continuation or (f) any prepayment of principal of any
Eurocurrency Loan is not made as a result of a withdrawn notice of prepayment
pursuant to subsection 2.4, the Borrower shall, after receipt of a written
request by such Lender (which request shall set forth in reasonable detail the
basis for requesting such amount), pay to the Agent for the account of such
Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that such Lender may reasonably incur as a result of
such payment, failure to convert, failure to continue or failure to prepay,
including any loss, cost or expense (excluding loss of anticipated profits)
actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Eurocurrency Loan.


 


2.17.  Notice
of Amounts Payable; Relocation of Funding Office; Mandatory Assignment. 
(j)In the event that any Lender becomes aware that any amounts are or
will be owed to it pursuant to subsection 2.13, 2.14, 2.15(a) or 2.16,
then it shall promptly notify the Company thereof and, 


 


24

















 


as soon as possible
thereafter, such Lender shall submit to the Company a certificate indicating
the amount owing to it, the calculation thereof and a description in reasonable
detail of the circumstances giving rise to such amount.  The amounts set forth in such certificate
shall be prima facie evidence of the obligations of the Company hereunder; provided,
however, that the failure of the Company to pay any amount owing to any
Lender pursuant to subsection 2.13, 2.14, 2.15(a) or 2.16 shall not be
deemed to constitute a Default or an Event of Default hereunder to the extent
that the Company is contesting in good faith its obligation to pay such amount
by ongoing discussions diligently pursued with such Lender or by appropriate
proceedings.


 


(a)  If
a Lender claims any additional amounts payable pursuant to subsection 2.13 or
2.14, it shall use its reasonable efforts (consistent with legal and regulatory
restrictions) to avoid the need for paying such additional amounts, including
changing the jurisdiction of its applicable Funding Office, provided
that the taking of any such action would not, in the reasonable judgment of
such Lender, be disadvantageous to such Lender.


 


(b)  In
the event that any Lender delivers to the Company a certificate in accordance
with subsection 2.17(a) (other than a certificate as to amounts payable
pursuant to subsection 2.16), or the Company is required to pay any additional
amounts or other payments in accordance with subsection 2.13, 2.14 or 2.15(a),
the Company may, at its own expense and in its sole discretion, (i) require
such Lender to transfer or assign, in whole or in part, without recourse (in
accordance with subsection 9.6), all or part of its interests, rights and
obligations under this Agreement to another Person (provided that the
Company, with the full cooperation of such Lender, can identify a Person who is
ready, willing and able to be an Assignee with respect to thereto) which shall
assume such assigned obligations (which Assignee may be another Lender, if such
Assignee Lender accepts such assignment) or (ii) during such time as no
Default or Event of Default has occurred and is continuing, prepay all
outstanding Loans of such Lender; provided that (x) the Company or
the Assignee, as the case may be, shall have paid to such Lender in immediately
available funds the principal of and interest accrued to the date of such
payment on the Loans made by it hereunder and (subject to subsection 2.16) all
other amounts owed to it hereunder and (y) such assignment or the
prepayment of Loans is not prohibited by any law, rule or regulation or
order of any court or Governmental Authority.


 


SECTION 3.  REPRESENTATIONS
AND WARRANTIES


 


To induce the Agent and the Lenders to enter into
this Agreement and to make the Loans, the Company hereby represents and
warrants to the Agent and each Lender that:


 


3.1.  Financial
Condition.  The Company has heretofore furnished to each
Lender a copy of its consolidated financial statements for its fiscal year
ended December 31, 2004 and for its fiscal quarters ended March 31,
2005, June 30, 2005 and September 30, 2005.  Such financial statements present fairly the
financial condition and results of operations of the Company and its
Subsidiaries as of such dates in accordance with GAAP.


 


3.2.  No Change.  As of the date hereof, since March 31,
2005, there has been no development or event which has had a Closing Date
Material Adverse Effect.


 


3.3.  Corporate
Existence.  The Company (a) is duly organized,
validly existing and in good standing under the laws of the State of Nevada, (b) has
the power and authority under its constituent documents, and the legal right,
to own and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged and (c) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or 


 


25

















 


operation of property or the conduct of its business requires such
qualification, except to the extent that all failures to be duly qualified and
in good standing could not, in the aggregate, have a Material Adverse Effect.


 


3.4.  Corporate
Power; Authorization; Enforceable Obligations.  The
Company has the corporate power and authority, and the legal right, to make,
deliver and perform its obligations under this Agreement and to borrow
hereunder and has taken all necessary corporate action to authorize its
Borrowings on the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of this Agreement.  No consent or authorization of any
Governmental Authority or any other Person is required in connection with its
Borrowings hereunder or with its execution, delivery and performance of this
Agreement or the validity or enforceability of this Agreement against it.  This Agreement has been duly executed and
delivered on behalf of the Company.  This
Agreement constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).


 


3.5.  No
Legal Bar.  The execution, delivery and performance of
this Agreement, its Borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Company and will not result in, or require, the creation or imposition of any
Lien on any of its properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation, except to the extent that all such violations
and creation or imposition of Liens could not, in the aggregate, have a
Material Adverse Effect.


 


3.6.  No
Material Litigation.  No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Company, threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or revenues
as of the Closing Date (a) with respect to this Agreement or any of the
actions contemplated hereby, or (b) which involves a probable risk of an
adverse decision which would materially restrict the ability of the Company to
comply with its obligations under this Agreement.


 


3.7.  Federal
Regulations.  The proceeds of any Loans will not be used
for “buying,” “purchasing” or “carrying” any “margin stock” in violation of
(within the respective meanings of each of the quoted terms under) Regulation U
of the Board of Governors of the Federal Reserve System as now and from time to
time hereafter in effect or for any purpose which violates the provisions of
the Regulations of such Board of Governors.


 


3.8.  Investment
Company Act.  The Company is not an “investment company”,
or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended.


 


3.9.  ERISA.  The
Company and its Subsidiaries are in compliance with all material provisions of
ERISA, except to the extent that all failures to be in compliance could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


3.10.  No
Material Misstatements.  No report, financial statement or other
written information furnished by or on behalf of the Company to the Agent or
any Lender pursuant to subsection 3.1 or subsection 5.1(a) contains or
will contain any material misstatement of fact or omits or will omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which 


 


26

















 


they were, are or will be made, not misleading, except to the extent
that the facts (whether misstated or omitted) do not result in a Material
Adverse Effect.


 


3.11.  Solvency.  As of the date hereof, the
Company is, individually and together with its Subsidiaries, Solvent.


 


3.12.  Purpose
of Loans.  The proceeds of the Loans shall be used by
the Company (a) to retire the Company’s Existing Indebtedness (other than
Surviving Indebtedness), (b) to pay costs and expenses incurred in
connection therewith and with the Acquisition and (c) for its general
corporate purposes.


 


SECTION 4.  CONDITIONS
PRECEDENT


 


4.1.  Conditions
to Initial Loans.  The agreement of each Lender to make its Loan
hereunder is subject to the satisfaction, prior to or concurrently with the
making of such Loan, of the following conditions precedent:


 


(a)  Bridge
Loan Agreement.  The Agent shall have
received this Agreement, executed and delivered (including, without limitation,
by way of a telecopied signature page or a signature page in
electronic format acceptable to the Agent) by a duly authorized officer of the
Company as of the Closing Date and each Lender.


 


(b)  Guaranty.  The Agent shall have received the Guaranty,
executed and delivered (including, without limitation, by way of a telecopied
signature page) by each Guarantor listed on Schedule II.


 


(c)  Secretary’s
Certificate.  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 Agreement (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, complete and correct copy of each of the certificate of
incorporation and by-laws of the Company, (iii) 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 Agreement and the Borrowings by the Company hereunder and (iv) certify
that, as of the date of such certificate (which shall not be earlier than the
date hereof), none of such certificate of incorporation, by-laws or resolutions
shall have been amended, supplemented, modified, revoked or rescinded.


 


(d)  Fees.  The Company shall have paid all fees required
to be paid pursuant to the terms of the Fee Letter.


 


(e)  Legal
Opinions.  The Agent shall have
received (i) the executed legal opinion of Lionel Sawyer &
Collins, Nevada counsel to the Company, substantially in the form of Exhibit B-1
and (ii) the executed legal opinion of Simpson, Thacher &
Bartlett LLP, counsel to the Company, substantially in the form of Exhibit B-2.  The Company hereby instructs Lionel Sawyer &
Collins and Simpson, Thacher & Bartlett LLP to deliver their opinions
for the benefit of the Agent and each of the Lenders.


 


27

















 


(f)  Debt
Ratings.  The Company shall have
received long-term senior unsecured debt ratings for the Senior Credit Facility
and the Facility of not less than BBB- from S&P, Baa3 from Moody’s and BBB-
from Fitch, in each case with at least stable outlook.


 


(g)  Consummation
of Acquisition.  The Acquisition
shall have been consummated in accordance with the terms of the Purchase
Agreement, without any amendment or modification that is material to the
interests of the Lenders and to which any two Arrangers have reasonably
objected.


 


(h)  Senior
Credit Facilities.  The initial
funding under the Senior Credit Facility shall have been consummated.


 


(i)  Issuance
of Hybrid Capital.  The Hybrid
Capital shall have been issued to GMAC.


 


(j)  Payment of
Existing Indebtedness.  The Agent
shall be satisfied that all Existing Indebtedness, other than Surviving
Indebtedness, has been prepaid, redeemed or defeased in full or otherwise
satisfied and extinguished and all commitments relating thereto terminated.


 


(k)  The Agent
shall have received a notice of borrowing as required by subsection 2.2.


 


(l)  Each of the
representations and warranties made by the Company in or pursuant to this
Agreement shall be true and correct on and as of such date as if made on and as
of such date.


 


(m)  No Default or
Event of Default shall have occurred and be continuing on such date or after
giving effect to the making of the Loans.


 


The Agent shall notify the Company and each Lender
promptly after the satisfaction of the foregoing conditions.


 


4.2.  Conditions
to Maturity Extension.  Upon written request of the Company to the
Agent no later than 5 Business Days prior to the Initial Maturity Date, the
Maturity Date may be extended for one additional twelve-month period (as so
extended, the “Extended Maturity Date”) subject to satisfaction of the
following conditions:


 


(a)  Representations
and Warranties.  Each of the
representations and warranties made by the Company in or pursuant to this
Agreement shall be true and correct on and as of the Initial Maturity Date such
date as if made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other than the
Initial Maturity Date, in which case as of such specific date.


 


(b)  No Default.  No Default or Event of Default shall have
occurred and be continuing on the Initial Maturity Date.


 


SECTION 5.  AFFIRMATIVE
COVENANTS


 


The Company hereby agrees that, so long as the
Commitments remain in effect, or any amount is owing to any Lender or the Agent
hereunder, the Company shall:


 


5.1.  Financial
Statements.  Furnish to each Lender:


 


28

















 


(a)  as soon as
available, but in any event within 110 days after the end of each fiscal year
of the Company  (or such earlier date on which the Company has filed such financial
statements with the Securities and Exchange Commission), a copy
of the audited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year and the related audited consolidated
statements of income and retained earnings and of cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year; and


 


(b)  as soon as
available, but in any event not later than 60 days after the end of each of the
first three quarterly periods of each fiscal year of the Company  (or such
earlier date on which the Company has filed such financial statements with the
Securities and Exchange Commission), the unaudited consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of income and
retained earnings and of cash flows of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the figures
for the previous year;


 


all such financial statements shall be
complete and correct in all material respects and shall be prepared in
accordance with GAAP (it being understood that in the event of any change in
GAAP or in the interpretation or application thereof, any financial statement
delivered hereunder prior to such change shall be deemed to have been prepared
in accordance with GAAP for purposes of and in accordance with the requirements
of this Agreement so long as such financial statements were prepared in accordance
with GAAP as in effect on the date such financial statements were delivered and
in accordance with the historical application thereof by the Company, without
giving effect to any changes thereto or in the interpretation or application
thereof after such date) applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).


 


5.2.  Certificates;
Other Information.  Furnish to:


 


(a)  each Lender,
concurrently with the delivery of the financial statements referred to in
subsection 5.1(a), a certificate of PricewaterhouseCoopers LLP or other
independent certified public accountants of nationally recognized standing
stating that, in making the examination necessary therefor, nothing came to
their attention that caused them to believe that the Company was, as at the
date at which such financial statements were made, in breach of subsection 6.1;


 


(b)  each Lender,
concurrently with the delivery of the financial statements referred to in
subsections 5.1(a) and 5.1(b), a certificate of the chief financial
officer of the Company (i) stating that, to the best of the chief
financial officer’s knowledge, (A) 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 (B) during
such period the Company 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) setting
forth in reasonable detail the calculations required to establish whether the
Company was in compliance with the provisions of subsection 6.1 on the date of
such financial statements; and


 


(c)  each Lender,
within 30 days after the same become public, copies of all financial statements
and reports which the Company may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental Authority; provided,
that such financial statements and reports shall be deemed delivered to each
Lender upon filing with the Securities and Exchange Commission.


 


29
















 


5.3.  Notices. 
Promptly give notice to the Agent and each Lender of the occurrence of
any Default or Event of Default, accompanied by a statement of a Financial
Officer setting forth details of the occurrence referred to therein and stating
what action the Company proposes to take with respect thereto.


 


5.4.  Conduct
of Business and Maintenance of Existence.  Continue to engage in its
principal line of business as now conducted by it and preserve, renew and keep
in full force and effect its corporate existence and take all reasonable action
to maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its principal line of business except as otherwise permitted
pursuant to subsection 6.2 or to the extent that failure to do so would not
have a Material Adverse Effect.


 


5.5.  Compliance with Laws, Etc. 
Comply, and cause each of its Subsidiaries to comply with all applicable
laws, rules, regulations and orders (including as to environmental matters),
such compliance to include, without limitation, compliance with ERISA, except
in each case to the extent that failure to do so would not have a Material
Adverse Effect.


 


5.6.  Payment
of Taxes, Etc.  Except to the extent that failure to do so
would not have a Material Adverse Effect, pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become delinquent,
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property; provided, however, that neither the Company
nor any of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained.


 


5.7.  Visitation Rights.  Once per calendar year (or,
during the continuance of an Event of Default, at any reasonable time and from
time to time), permit the Agent or any agents or representatives thereof to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Company and any of its Subsidiaries, and
to discuss the affairs, finances and accounts of the Company and any of its
Subsidiaries with any of their officers or directors and with their independent
certified public accountants.


 


5.8.  Keeping of Books.  Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time, except to the
extent that failure to do so would not have a Material Adverse Effect.


 


5.9.  Maintenance of Properties, Etc. 
Except to the extent that failure to do so would not have a Material
Adverse Effect, maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition, ordinary wear and
tear excepted.


 


5.10.  Maintenance of Insurance. 
Except to the extent that failure to do so would not have a Material
Adverse Effect, maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged
in similar businesses and owning similar properties in the same general areas
in which the Company or such Subsidiary operates.


 


30

















 


5.11.  Transactions with Affiliates. 
Conduct, and cause each of its Subsidiaries to conduct, all transactions
otherwise permitted under this Agreement with any of their Affiliates (other
than the Company or any Subsidiary of the Company) on terms that are fair and
reasonable and no less favorable to the Company or such Subsidiary than it
would obtain in a comparable arm’s-length transaction with a Person not an
Affiliate; provided that the foregoing restrictions shall not apply to (a) the
payment of customary annual fees to any Equity Investor and/or its Affiliates
for management, consulting and financial services rendered to the Company and
its Subsidiaries; (b) customary investment banking fees paid to any Equity
Investor and/or its Affiliates for services rendered to the Company and its
Subsidiaries in connection with the divestitures, acquisitions, financings and
other transactions; (c) customary fees paid to members of the board of
directors of the Company and its Subsidiaries and (d) dividends and
restricted payments not prohibited by this Agreement.


 


5.12.  Covenant to Guaranty Obligations.  Upon
the formation or acquisition of any new wholly owned, first-tier or second-tier
Subsidiaries (other than any Excluded Subsidiary or Permitted Receivables
Subsidiary) by the Company, then in each case the Company shall (at the Company’s
expense), within 30 days after such formation or acquisition (or, if an Event
of Default shall have occurred and be continuing, as promptly as practicable
after such formation or acquisition), cause each such Subsidiary to duly
execute and deliver to the Agent a guaranty or guaranty supplement, in form and
substance reasonably satisfactory to the Agent, guaranteeing the Company’s
obligations under the Loan Documents.


 


SECTION 6.  NEGATIVE
COVENANTS


 


The Company hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender or the Agent
hereunder, the Company shall not, directly or indirectly:


 


6.1.  Leverage
Ratio.  Permit the ratio of Total Consolidated
Indebtedness at the last day of any fiscal quarter of the Company to Total
Capitalization at such date to be 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.


 


6.2.  Merger, Consolidation, etc.  Merge
or consolidate with any other Person or sell or convey all or substantially all
of its assets to any Person unless, in the case of mergers and consolidations, (a) the
Company shall be the continuing corporation and (b) immediately before and
immediately after giving effect to such merger or consolidation, no Default or
Event of Default shall have occurred and be continuing; provided, however,
that nothing contained in this Agreement shall be deemed to prevent or prohibit
the conversion of the Company into a Delaware or Nevada limited liability
company, by means of merger or otherwise, so long as (a) no Default or
Event of Default shall have occurred and be continuing and (b) the
surviving limited liability company shall expressly assume the obligations of
the Company under this Agreement and the other Loan Documents to which it is a
party and agree to be bound by all other provisions applicable to the Company
under this Agreement and such other Loan Documents.


 


6.3.  Limitation on Liens.  Pledge
or otherwise subject to any Lien any of its property or assets, or permit any
Designated Borrower or Guarantor to pledge or otherwise subject to any Lien any
of its property or assets, unless all principal, interest, fees and other
obligations owing under or in connection with this Agreement are secured by
such pledge or Lien equally and ratably with any and all 


 


31

















 


other obligations and indebtedness secured thereby so long as any such
other obligations and indebtedness shall be so secured; provided, however,
that this covenant shall not apply in the case of:


 


(a)  Liens in
favor of the Company, any Designated Borrower or Guarantor;


 


(b)  any deposit
of assets of the Company, any Designated Borrower or Guarantor with any surety
company or clerk of any court, or escrow, as collateral in connection with, or
in lieu of, any bond on appeal by the Company, such Designated Borrower or
Guarantor from any judgment or decree against it, or in connection with other
proceedings in actions at law or in equity by or against the Company, such
Designated Borrower or Guarantor;


 


(c)  any Lien or
charge on any property, tangible or intangible, real or personal, existing at
the time of acquisition of such property (including acquisition through merger
or consolidation) or given to secure the payment of all or any part of the
purchase price thereof or to secure any indebtedness incurred prior to, at the
time of, or within 60120 days after, the acquisition thereof
for the purpose of financing all or any part of the purchase price thereof;


 


(d)  Liens on
property or assets financed through tax exempt municipal obligations in
connection with municipal mortgage trusts;


 


(e)  any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Lien, charge or pledge referred to
in clauses (a) to (ed) of this subsection 6.3; provided
that the amount of any and all obligations
and indebtedness secured thereby shall not exceed the amount
thereof so secured immediately prior to the time of such extension, renewal or
replacement;


 


(f)  Liens (i) evidencing the sale, securitization,
syndication or financing of (i) any
real estate receivables and mortgage notes and related security in connection
with Permitted Receivables Financings, in each case so long as such Liens
extend solely to the assets being sold, securitized or syndicated thereunder or
(ii) on any
assets that (A) fall within any Specified Asset Category or (B) are
owned by any Specified Subsidiary; and


 


(g)  Liens
securing Indebtedness of the Company, any Designated Borrower and the
Guarantors in an aggregate amount not to exceed
the greater of (i) 20% of
the difference of consolidated shareholders’ equity of the Company and its
Subsidiaries minus Attributed Equity  and (ii) $750 million.


 


To
the extent that the creation, incurrence or assumption of any Lien could be
attributable to more than one of the foregoing exceptions, the Company may
allocate such Lien to any one or more of such subsections.


 


6.4.  Indebtedness. 
Permit any of its Subsidiaries (other than any Specified Subsidiary and
any Designated Borrower) that are not Guarantors to create, incur, assume or
suffer to exist, any Indebtedness, except:


 


(a)  Indebtedness
secured by Liens permitted by subsections 6.3(c), 6.3(d) and 6.3(e),


 


(b)  capitalized
leases,


 


(c)  the
Surviving Indebtedness, and any Indebtedness extending the maturity of, or
refunding, replacing or refinancing, in whole or in part, any Surviving
Indebtedness; provided that the 


 


32

















 


terms of any such extending, refunding or refinancing Indebtedness, and
of any agreement entered into and of any instrument issued in connection
therewith, are otherwise permitted by the Loan Documents; provided  further
that the principal amount of such Surviving Indebtedness shall not be increased
above the principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent obligors
therefor shall not be changed, as a result of or in connection with such
extension, refunding or refinancing,


 


(d)  Indebtedness
in respect of Hedge Agreements designed to hedge against fluctuations in
interest rates or foreign exchange rates incurred in the ordinary course of
business and consistent with prudent business practice,


 


(e)  Indebtedness
owed to the Company or a wholly-owned Subsidiary of the Company, which
Indebtedness, if secured, shall be otherwise permitted under the provisions of
subsection 6.3,


 


(f)  Indebtedness
of any Person that becomes a Subsidiary of the Company after the Closing Date,
which Indebtedness is existing at the time such Person becomes a Subsidiary of
the Company (other than Indebtedness incurred solely in contemplation of such
Person becoming a Subsidiary of the Company),


 


(g)  (i) 
Indebtedness in an amount not to exceed the aggregate
amount of Attributed Indebtedness
deducted in determining Total Consolidated Indebtedness to the extent of any
corresponding deduction of Attributed Capitalization from Total Capitalization,
in each caseEquity of all Banking
and Market Destined Assets, computed for purposes of determining
compliance with subsection 6.1 and (ii) any other Indebtedness secured by
Liens permitted by subsection 6.3(f), and


 


(h)    other Indebtedness in an aggregate amount
not to exceed the
greater of (i) an
amount equal to 30% of the of the
difference of consolidated shareholders’ equity of the Company and its
Subsidiaries minus Attributed Equity  and (ii) $750 million.


 


To
the extent that the creation, incurrence or assumption of any Indebtedness
could be attributable to more than one of the foregoing exceptions, the Company
may allocate such Indebtedness to any one or more of such subsections and in no
event shall the same portion of such Indebtedness be deemed to utilize or be
attributable to more than one such subsection.


 


SECTION 7.  EVENTS
OF DEFAULT


 


7.1.  Events
of Default.  If any of the following
events shall occur and be continuing:


 


(a)  The Company
shall (i) fail to pay any principal of any Loan made to it when due in
accordance with the terms hereof or (ii) fail to pay any interest on any
Loan made to it or any other amount which is payable hereunder and (in the case
of this clause (ii) only) such failure shall continue unremedied for more
than five Business Days after written notice thereof has been given to the
Company by the Agent or the Majority Lenders; or


 


(b)  Any
representation or warranty made or deemed made by the Company in Section 3
or any certified statement furnished pursuant to subsection 5.2(b) shall
prove to have been materially incorrect on or as of the date made or deemed
made or certified; or


 


33

















 


(c)  The Company
shall default in the observance of the agreement contained in subsection 6.1;
or


 


(d)  The Company
shall default in the observance or performance of any other agreement
applicable to it contained in this Agreement (other than as provided in
paragraphs (a), (b) and (c) of this Section 7), and such default
shall continue unremedied for a period of 30 days after written notice thereof
shall have been given to the Company by the Agent or the Majority Lenders; or


 


(e)  The Company
or any of its Subsidiaries (other than any Bankruptcy Remote Special Purpose
Entity) shall default in any payment of $50,000,000 or more (in the case of any
single payment) or $100,000,000 or more (in the case of all such defaulted
payments in the aggregate) of principal of or interest on any Indebtedness or
in the payment of $50,000,000 or more (in the case of any single payment) or
$100,000,000 or more (in the case of all such defaulted payments in the
aggregate) on account of any Guarantee in respect of Indebtedness, and such
default shall be continuing beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee was created;
or


 


(f)  (A)The
Company, any Designated Borrower or any Guarantor shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part
of its assets, or the Company, any Designated Borrower or any Guarantor shall
make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against the Company, any Designated Borrower or any
Guarantor any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 90 days; or (iii) there shall be
commenced against the Company, any Designated Borrower or any Guarantor any
case, proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 90 days from the entry thereof; or


 


(g)  One or more
judgments or decrees shall (i) be entered against the Company or any of
its Subsidiaries (other than any Bankruptcy Remote Special Purpose Entity), (ii) not
have been vacated, discharged, satisfied, stayed or bonded pending appeal
within 60 days from the entry thereof and (iii) involve a liability (not
paid or fully covered by insurance) of either (A) $50,000,000 or more, in
the case of any single judgment or decree or (B) $100,000,000 or more in
the aggregate, in the case of all such judgments and decrees;


 


(h)  a Change of
Control shall occur; or


 


(i)  the
occurrence of any ERISA Event, the partial or complete withdrawal of the
Company or any of its ERISA Affiliates from a Multiemployer Plan and/or the
reorganization or termination of a Multiemployer Plan which could, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect;


 


then, and in any such event, (A) if such
event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to the Company, automatically the
Commitments shall immediately 


 


34

















 


terminate and the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be
taken:  (i) with the consent of the
Majority Lenders, the Agent may, or upon the request of the Majority Lenders,
the Agent shall, by notice to the Company declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Majority Lenders, the Agent may, or upon
the request of the Majority Lenders, the Agent shall, by notice to the Company,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable.  Except as expressly provided above in this Section 7,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.


 


SECTION 8.  THE
AGENT


 


8.1.  Appointment.  Each
Lender hereby irrevocably designates and appoints CNAI as the Agent of such
Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes CNAI, as the Agent for such Lender, to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental
thereto.  Notwithstanding any provision
to the contrary elsewhere in this Agreement, (a) the Agent shall not have
any duties or responsibilities, except those expressly set forth herein and in
the other Loan Documents, (b) the Syndication Agent, the Documentation
Agents and the Arrangers shall not have any duties or responsibilities in their
capacities as such to the Lenders and (c) none of the Agent, the
Syndication Agent, any Documentation Agent or any Arranger shall have any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent, the
Syndication Agent, any Documentation Agent or any Arranger.


 


8.2.  Delegation
of Duties.  The Agent may execute any of its duties under
this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties.  The
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care.


 


8.3.  Exculpatory
Provisions.  Neither the Agent nor any of its officers,
directors, employees or Affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person’s own gross
negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by the Company or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure of the Company
to perform its obligations hereunder or thereunder.  The Agent shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of the
Company.


 


8.4.  Reliance
by Agent.  The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it in good faith
to be 


 


35

















 


genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Company), independent accountants and other
experts selected by the Agent.  The Agent
may deem and treat the Lender specified in the Register with respect to any amount
owing hereunder as the owner thereof for all purposes unless a written notice
of assignment, negotiation or transfer thereof shall have been filed with the
Agent.  The Agent shall be fully
justified in failing or refusing to take any action under this Agreement unless
it shall first receive such advice or concurrence of the Majority Lenders as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.  The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Majority Lenders (or, to the extent that this
Agreement expressly requires a higher percentage of Lenders, such higher
percentage), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
obligations owing by the Company hereunder.


 


8.5.  Notice
of Default.  The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received written notice from a Lender or the
Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a “notice of default”.  In the event that the Agent receives such a
notice, the Agent shall promptly notify the Company (unless the Company shall
have delivered such notice to the Agent) and then give notice thereof to the
Lenders (provided that the failure to notify the Company shall not
impair any of the rights of the Agent and the Lenders with respect to the
events and circumstances specified in such notice).  The Agent shall take such action with respect
to such Default or Event of Default as shall be reasonably directed by the
Majority Lenders; provided that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Lenders.


 


8.6.  Non-Reliance
on Agent and Other Lenders.  Each Lender expressly acknowledges that
neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
it and that no act by the Agent hereinafter taken, including any review of the
affairs of the Company, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. 
Each Lender represents to the Agent that it has, independently and
without reliance upon the Agent or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Company and made its own decision
to make its Loans hereunder and enter into this Agreement.  Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Company.  Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Company which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.


 


8.7.  Indemnification.  The Lenders
agree to indemnify the Agent and each Sub-Agent,  (in their respective capacities as such, but
only to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to their respective Commitments
(or if 


 


36

















 


the Commitments have been terminated, the outstanding principal amount
of their Loans) in effect on the date on which indemnification is sought under
this subsection 8.7 (or, if indemnification is sought after the date upon which
the Loans shall have been paid in full, ratably in accordance with the
outstanding principal amount of their Loans immediately prior to such date of
payment in full) but giving effect to any subsequent assignments in accordance
with subsection 9.6, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the amounts owing hereunder)
be imposed on, incurred by or asserted against the Agent or such Sub-Agent (as
the case may be) in any way relating to or arising out of this Agreement or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent or
such Sub-Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
willful misconduct of the Agent or the relevant Sub-Agent (as the case may be).  The agreements in this subsection 8.7 shall
survive the payment of the Loans and all other amounts payable hereunder.


 


8.8.  Agent
in Its Individual Capacity.  The Agent and its Affiliates may make loans
to, accept deposits from and generally engage in any kind of business with the
Company as though the Agent were not the Agent hereunder.  With respect to its Loans made or renewed by
it, the Agent shall have the same rights and powers under this Agreement as any
Lender and may exercise the same as though it were not the Agent, and the terms
“Lender” and “Lenders” shall include the Agent in its individual capacity.


 


8.9.  Successor
Agent.  The Agent may resign as Agent upon 30 days’
notice to the Lenders and the Company and following the appointment of a
successor Agent in accordance with the provisions of this subsection 8.9.  If the Agent shall resign as Agent under this
Agreement, then the Majority Lenders shall appoint from among the Lenders
willing to serve as Agent a successor agent for the Lenders, which successor
agent shall be approved by the Company (which approval shall not be
unreasonably withheld and shall not be required if an Event of Default under
subsection 7.1(a) or (f) has occurred and is continuing), whereupon
such successor agent shall succeed to the rights, powers and duties of the
Agent, and the term “Agent” shall mean such successor agent effective upon such
appointment and approval, and the former Agent’s rights, powers and duties as
Agent shall be terminated, without any other or further act or deed on the part
of such former Agent or any of the parties to this Agreement or any holders of
the obligations owing hereunder.  After
any retiring Agent’s resignation as Agent, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.


 


8.10.  Sub-Agent.  Each
Sub-Agent has been designated under this Agreement to carry out the duties of
the Agent.  Each Sub-Agent shall be
subject to each of the obligations in this Agreement to be performed by such
Sub-Agent, and each of the Company and the Lenders agrees that each Sub-Agent
shall be entitled to exercise each of the rights and shall be entitled to each
of the benefits of the Agent under this Agreement as they related to the
performance of its obligations hereunder.


 


SECTION 9.  MISCELLANEOUS


 


9.1.  Amendments
and Waivers.  Neither this Agreement, not the Guaranty nor
any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection 9.1.  The Majority Lenders may, or, with the
written consent of the Majority Lenders, the Agent may, from time to time, (a) enter
into with the Company, and, in the case of the 


 


37

















 


Guaranty, the Guarantors, written amendments, supplements or
modifications hereto or to the Guaranty, as the case may be, for the purpose of
adding any provisions to this Agreement or the Guaranty or changing in any
manner the rights of the Lenders or of the Company or Guarantors, as the case
may be, hereunder or thereunder or (b) waive, on such terms and conditions
as the Majority Lenders or the Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or any Default or Event
of Default and its consequences; provided, however, that (x) no
such waiver and no such amendment, supplement or modification shall, unless in
writing and signed by all of the Lenders (other than any Lender that is, at
such time, a defaulting Lender):


 


(i)  amend, modify
or waive the voting requirements of this subsection 9.1 or reduce the
percentage specified in the definition of Majority Lenders, or consent to the
assignment or transfer by the Company of any of its rights and obligations
under this Agreement, or


 


(ii)   release one
or more Guarantors (or otherwise limit the liability of one or more Guarantors
with respect to the obligations owing to the Agent and the Lenders under the
Guaranty) if such release or limitation is in respect of substantially all of
the value provided by all Guarantors under the Guaranty, or


 


(iii)  permit the
sale of all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole, outside of the ordinary course of its business;


 


and (y) no such waiver and no such amendment,
supplement or modification shall, unless in writing and signed by the Lender or
Lenders specified below for such waiver, amendment, supplement or modification:


 


(i)  reduce
the principal amount of any Loan, or reduce the stated rate of any interest or
fee payable hereunder, or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender’s Commitment,
in each case without the consent of each Lender directly affected thereby, or


 


(ii)  amend,
modify or waive any provision of Section 9 or any other provision of this
Agreement governing the rights or obligations of the Agent without the written
consent of the then Agent.


 


Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the Lenders and shall be binding
upon the Company, the Lenders, the Agent and all future holders of the
obligations owing hereunder.  In the case
of any waiver, the Company, the Lenders and the Agent shall be restored to
their former position and rights hereunder, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.


 


9.2.  Notices.  (k) 
All notices, requests and demands to or upon the respective parties hereto to
be effective shall be in writing (including by telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or four days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of the Company and the Agent, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the obligations owing hereunder:


 


38

















 


	
  The Company:

  	
   

  	
  Capmark Financial Group
  Inc.

  200 Witmer Road

  Horsham, PA 19044

  Attention: Marc Fox

                   Wayne
  Hoch

  Telecopy: 215-328-1515

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With a copy to:  

  

  Capmark Financial Group Inc.

  200 Witmer Road

  Horsham, PA 19044

  Attention: General Counsel

  Telecopy: 215-328-3620

  
	
   

  	
   

  	
   

  
	
  The
  Agent:

  	
   

  	
  Citicorp
  North America, Inc.

  2 Penns Way, Suite 200

  New Castle, DE  19720  

  Attention: Dawayne Sims

  Telecopy: 212-994-0961

  
	
   

  	
   

  	
  With a copy to:  

  

  Citicorp North
  America, Inc.  
 388 Greenwich Street  
 New York, NY 10013  
 Attention: Yoko Otani  
 Telecopy: 646-291-1727

  



 


provided that any notice, request or demand to or
upon the Agent or the Lenders pursuant to subsections 2.2, 2.3 or 2.4 shall not
be effective until received.


 


(a)  So
long as CNAI or any of its Affiliates is the Agent, materials required to be
delivered pursuant to subsections 5.1, 5.2 and 5.3 may be delivered to the
Agent in an electronic medium in a format acceptable to the Agent and the
Lenders by e-mail at oploanswebadmin@citigroup.com (and delivery in such format
shall fully satisfy the delivery requirements of such subsections in respect
thereof).  The Company agrees that the
Agent may make such materials, as well as any other written information,
documents, instruments and other material relating to the Company, any of its
Subsidiaries or any other materials or matters relating to this Agreement, the
Notes, the Guaranty or any of the transactions contemplated hereby
(collectively, the “Communications”) available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the “Platform”).  The Company acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution, (ii) the Platform is provided “as is” and “as available” and
(iii) neither the Agent nor any of its Affiliates warrants the accuracy,
adequacy or completeness of the Communications or the Platform and each
expressly disclaims liability for errors or omissions in the Communications or
the Platform.  No warranty of any kind,
express, implied or statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the
Agent or any of its Affiliates in connection with the Platform.


 


(b)  Each
Lender agrees that notice to it (as provided in the next sentence) (a “Notice”)
specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials
to such Lender for purposes of this Agreement; 


 


39

















 


provided
that if requested by any Lender the Agent shall deliver a copy of the
Communications to such Lender by email or telecopier.  Each Lender agrees (i) to notify the
Agent in writing of such Lender’s e-mail address to which a Notice may be sent
by electronic transmission (including by electronic communication) on or before
the date such Lender becomes a party to this Agreement (and from time to time
thereafter to ensure that the Agent has on record an effective e-mail address
for such Lender) and (ii) that any Notice may be sent to such e-mail
address.


 


9.3.  No
Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Agent or any Lender, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


9.4.  Survival
of Representations and Warranties.  All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.


 


9.5.  Payment
of Expenses and Taxes.  The Company agrees (a) to pay or
reimburse the Agent for all its reasonable out-of-pocket costs and expenses
reasonably incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
or any other Loan Document and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees and disbursements of counsel to the Agent, (b) to pay
or reimburse each Lender and the Agent for all its reasonable costs and
expenses reasonably incurred in connection with the enforcement of any rights
under this Agreement, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent and to the several Lenders (other than
those incurred in connection with the compliance by the Lender with the
provisions of subsection 2.17(a)), and (c) to pay, indemnify, and hold
each Lender and the Agent harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay by the
Company in paying, stamp, excise and other taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of,
or consummation or administration of any of the transactions contemplated by,
or any amendment, supplement or modification of, or any waiver or consent under
or in respect of, this Agreement or any other Loan Document, and (d) to
pay, indemnify, and hold each Lender, each Arranger, the Syndication Agent,
each Documentation Agent the Agent and each Sub-Agent harmless from and against
any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and the other Loan Documents
(all the foregoing in this clause (d), collectively, the “indemnified
liabilities”); provided that the Company shall have no obligation
hereunder to the Agent, the Syndication Agent, such Documentation Agent, such
Sub-Agent, such Arranger, or any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of the Agent, such
Sub-Agent, the Syndication Agent, such Documentation Agent, such Arranger, or
any such Lender.  The agreements in this
subsection 9.5 shall survive repayment of the Loans and all other amounts
payable hereunder.


 


9.6.  Successors and Assigns;
Participations and Assignments. 
(a)  The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that (i) the Company may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the
Company without such consent shall be null and void) and (ii) no 


 


40

















 


Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance
with this subsection.


 


(b) (A)Subject
to the conditions set forth in paragraph (b)(ii) below, any Lender may
assign to one or more assignees (each, an “Assignee”) all or a portion
of its rights and obligations under this Agreement with the prior written
consent (such consent not to be unreasonably withheld) of:


 


(A)  the
Company, provided that no consent of the Company  shall
be required for an assignment to a Lender, an affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default under subsection
7.1(a) or (f) has occurred and is continuing, any other Person; and


 


(B)  the
Agent, provided that no consent of the Agent shall be required for an
assignment to an Assignee that is an affiliate of such assigning Lender.


 


(ii)  Assignments
shall be subject to the following additional conditions:


 


(A)  except
in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans, the amount of the Commitments or Loans of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Agent) shall be an amount equal to $5,000,000 or a multiple of $1,000,000 in
excess thereof unless each of the Company and the Agent otherwise consent, provided
that (1) no such consent of the Company shall be required if an Event of
Default under subsection 7.1(a) or (f) has occurred and is continuing
and (2) such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;


 


(B)  the
parties to each assignment shall execute and deliver to the Agent an Assignment
and Assumption substantially in the form of Exhibit A, together with a
processing and recordation fee of $3,500;


 


(C)  the
Assignee, if it shall not be a Lender, shall deliver to the Agent an
administrative questionnaire; and


 


(D)  in
the case of an assignment to a CLO (as defined below), the assigning Lender shall
retain the sole right to approve any amendment, modification or waiver of any
provision of this Agreement, provided that the Assignment and Assumption
between such Lender and such CLO may provide that such Lender will not, without
the consent of such CLO, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of subsection 9.1 and (2) directly affects such CLO.


 


For the
purposes of this subsection 9.6, the terms “Approved Fund” and “CLO” have the
following meanings:


 


“Approved
Fund”:  (a) a CLO and (b) with
respect to any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an affiliate of such investment advisor.


 


41
















 


“CLO”:  any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a Lender or
an affiliate of such Lender.


 


(iii)          Subject to acceptance and recording
thereof pursuant to paragraph (b)(iv) below, from and after the effective
date specified in each Assignment and Assumption, the Assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of subsections 2.14, 2.15, 2.16 and 9.6); provided
that no Assignee shall then be entitled to receive any greater amount pursuant
to subsections 2.13, 2.14, 2.15 or 2.16 
than the assigning Lender would have been entitled to receive thereunder
in respect of the rights and obligations assigned by such assigning Lender to
such Assignee had no such assignment occurred.


 


(iv)  The
Agent, acting for this purpose as an agent of Company, shall maintain at one of
its offices a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be prima
facie evidence of the existence and amounts of the obligations of the Company
therein recorded, and the Company, the Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Lender hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary.  The Register shall be
available for inspection by the Company and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.  The Agent shall provide a copy of the
Register to the Company on a monthly basis.


 


(v)  Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Assignee, the Assignee’s completed administrative
questionnaire (unless the Assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this
subsection and any written consent to such assignment required by paragraph (b) of
this subsection, the Agent shall accept such Assignment and Assumption and
record the information contained therein in the Register.


 


(c) (i) Any Lender may,
without the consent of the Company or the Agent, sell participations to one or
more banks or other entities (a “Participant”) in all or a portion of
such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (C) the Company, the Agent any Sub-Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement and (D) such Lender shall have given prior written notice to the
Company of the identity of such Participant. 
Any agreement pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the 


 


42

















 


second sentence of subsection
9.1 and (2) directly affects such Participant.  Subject to paragraph (c)(ii) of this
subsection, the Company agrees that each Participant shall be entitled to the
benefits of subsections 2.13, 2.14, 2.15, 2.16 and 9.6 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this subsection.


 


(ii) 
A Participant shall not be entitled to receive any greater payment under
subsection 2.13, 2.14, 2.15, 2.16 or 9.6 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company’s prior written consent. 
Any Participant shall not be entitled to the benefits of subsection 2.15
except to the extent that it has complied with any applicable requirements of
such subsection.


 


(d)           Nothing
herein shall prohibit any Lender from pledging or assigning all or any portion
of its Loans to any Federal Reserve Bank in accordance with applicable
law.  In order to facilitate such pledge
or assignment, the Company hereby agrees that, upon request of any Lender at
any time and from time to time after the Company has made the Borrowing
hereunder, the Company shall provide to such Lender, at the Company’s own
expense, a promissory note, substantially in the form of Exhibit C,
evidencing the Loans owing by the Company to such Lender (a “Note”).


 


(e)           On
or prior to the effective date of an assignment, the assigning Lender shall
surrender any outstanding Notes held by it all or a portion of which are being
assigned, and the Company shall, upon the request to the Agent made at the time
of such assignment by the assigning Lender or the Assignee, as applicable,
execute and deliver to the Agent (in exchange for the outstanding Notes of the
assigning Lender) a new Note to the order of such Assignee in an amount equal
to the amount of such Assignee’s Loan and, if applicable, a new Note to the
order of the assigning Lender in an amount equal to the Loan retained by such
Lender.  Any such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the Note replaced
thereby.  Any Notes surrendered by the assigning
Lender shall be returned by the Agent to the Company marked “cancelled.”


 


(f)            Notwithstanding
the foregoing, any Conduit Lender may assign any or all of the Loans it may
have funded hereunder to its designating Lender without the consent of the
Company or the Agent and without regard to the limitations set forth in
subsection 9.6(b); provided, that no Conduit Lender shall be entitled to
receive any greater amount pursuant to subsections 2.13, 2.14, 2.15, 2.16 or
9.6 than the designating Lender would have been entitled to receive in respect
of the extensions of credit made by such Conduit Lender.  In addition, any Conduit Lender may disclose,
on a confidential basis, the existence and terms of the Loans it has funded to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancements to such Conduit Lender; provided
that no such Person shall receive any confidential financial information with
respect to the Company unless such Person has complied with subsection 9.6(g) as
if such Person were a Transferee.  Each
of the Company, the Lenders and the Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any state bankruptcy or similar law,
for one year and one day after the payment in full of the latest maturing
commercial paper note issued by such Conduit Lender; provided, however,
that each Lender designating any Conduit Lender hereby agrees to indemnify,
save and hold harmless each other party hereto for any loss, cost, damage or
expense (including legal expenses) arising out of its designation of a Conduit
Lender, including but without limitations to, inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.


 


(g)           The
Company authorizes each Lender to disclose to any prospective Participant, any
Participant, any prospective Assignee or any Assignee (each, a “Transferee”)
any and all financial information in such Lender’s possession concerning the
Company and its Affiliates which has been 


 


43

















 


delivered to such Lender by
or on behalf of the Company pursuant to this Agreement or which has been
delivered to all Lenders by or on behalf of the Company in connection with
their respective credit evaluations of the Company and its Affiliates prior to
becoming a party to this Agreement; provided that (i) such
Transferee has executed and delivered to the Company a written confidentiality
agreement substantially in the form of that which has been executed and
delivered by each Lender prior to the date hereof and (ii) in the case of
any information other than that contained in the Confidential Information
Memorandum, dated November 2005, the Company has been informed of the
identity of such Transferee and has consented (such consent shall not be
unreasonably withheld) to the disclosure of such information thereto.  Nothing contained in this subsection 9.6(g) shall
be deemed to prohibit the delivery to any Transferee of any financial
information which is otherwise publicly available.


 


(h)           If at any time, any Lender becomes a
Non-Consenting Lender, then any Company may, at its sole cost and expense, on
five Business Days’ prior written notice to the Agent and such Lender, replace
such Lender by causing such Lender to (and such Lender shall be obligated to)
assign pursuant to this subsection 9.6 all of its rights and obligations under
this Agreement to one or more Eligible Assignees; provided that neither the
Agent nor any Lender shall have any obligation to the Company to find a
replacement Lender or other such Person; provided, further, that such
Non-Consenting Lender shall be entitled to receive the full outstanding
principal amount of Loans so assigned, together with accrued interest and fees
payable in respect of such Loans and all other amounts then owed and payable to
it under the Loan Documents as of the date of such assignment.


 


9.7.  Adjustments.  If any Lender (a “Benefitted Lender”)
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in subsection 7.1(f), or otherwise), such that it has received
aggregate payments or collateral on account of its Loans in a greater
proportion than any such payment to or collateral received by any other Lender,
if any, in respect of such other Lender’s Loans which are then due and payable,
or interest thereon, such Benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender’s Loans, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of such recovery, but
without interest.


 


9.8.  Counterparts.  (l)This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.  A set of the copies of this Agreement signed
by all the parties shall be lodged with the Company and the Agent.


 


(a)  By its signature hereto,
each Lender hereby agrees that this Agreement shall become effective
immediately upon the execution and delivery by the Company and the Agent of
this Agreement.  In the event that this
Agreement has not been duly executed and delivered by each Person listed on the
signature pages hereto (other than the Company and the Agent, with respect
to which the execution and delivery of this Agreement shall be a condition
precedent to its effectiveness) on the date upon which this Agreement becomes
effective in accordance with the immediately preceding sentence, this Agreement
shall nevertheless become effective with respect to those Persons who have executed
and delivered it on or before such effective date and those Persons who have
not executed and delivered it (such Persons, the “Non-Executing Banks”)
shall be deemed not to be Lenders hereunder.


 


44

















 


(b)  On the date of
effectiveness of this Agreement, the Company may (after consultation with the
Agent) designate one or more Lenders (the “Designated Lenders”) to
assume the Commitments which would have been held by the Non-Executing Banks
and, if the Designated Lenders agree to assume such Commitments, (i) Schedules
I shall be deemed to be amended to reflect such increase in the respective
Commitment of each Designated Lender and the omission of each Non-Executing
Bank as a Lender hereunder and (ii) the respective Commitment of each
Designated Lender shall be deemed to be such increased amount for all purposes
hereunder.


 


(c)  Notwithstanding anything
to the contrary contained herein, the Commitment of a Lender shall not be
increased (without the prior written consent of such Lender) as a result of the
failure of any other Person to execute and deliver this Agreement or otherwise.


 


9.9.  Judgment.  (m)  If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Agent could purchase
Dollars with such other currency at Citibank’s principal office in London at
11:00 A.M. (London time) on the Business Day preceding that on which final
judgment is given.


 


(a)  If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in another currency into Dollars, the parties agree to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Agent could purchase
such other currency with Dollars at Citibank’s principal office in London at
11:00 A.M. (London time) on the Business Day preceding that on which final
judgment is given.


 


(b)  The obligation of the
Company in respect of any sum due from it in any currency (the “Primary
Currency”) to any Lender, Sub-Agent or the Agent hereunder shall,
notwithstanding any judgment in any other currency, be discharged only to the
extent that on the Business Day following receipt by such Lender, Sub-Agent or
the Agent (as the case may be), of any sum adjudged to be so due in such other
currency, such Lender, Sub-Agent or the Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender, Sub-Agent or
the Agent (as the case may be) in the applicable Primary Currency, the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Lender, Sub-Agent or the Agent (as the case may be) against such
loss, and if the amount of the applicable Primary Currency so purchased exceeds
such sum due to any Lender, Sub-Agent or the Agent (as the case may be) in the
applicable Primary Currency, such Lender, Sub-Agent or the Agent (as the case
may be) agrees to remit to the Company such excess.


 


9.10.  Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


9.11.  GOVERNING
LAW.  THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.


 


45

















 


9.12.  USA PATRIOT Act.  Each Lender hereby notifies the Company that
pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it
is required to obtain, verify and record information that identifies the
Company, which information includes the name and address of the Company and
other information that will allow such Lender to identify the Company in
accordance with the Patriot Act.  The
Company shall promptly provide such information upon request by any Lender.


 


9.13.  WAIVER OF JURY TRIAL. EACH
OF THE COMPANY, THE AGENT AND THE LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
BORROWING OR THE ACTIONS OF ANY AGENT OR ANY LENDER IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.


 


46

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.


 


	
   

  	
   

  	
  CAPMARK FINANCIAL GROUP
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Taxpayer ID:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CITICORP NORTH AMERICA, INC.,

  
	
   

  	
   

  	
    as Administrative Agent and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [OTHER
  AGENTS]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [LENDERS]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
							



 

















 


Annex B to 


Amendment No. 2 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 and
Amendment No. 2 to the Bridge Loan Agreement, dated as of June 30, 2007, 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. 2 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. 2 to the Bridge Loan Agreement (in each case,
as defined therein).


 

















 


	
   

  	
  COMMERCIAL EQUITY
  INVESTMENTS,

  INC.,  

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK CAPITAL INC.,
  

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NET LEASE ACQUISITION LLC,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 

















 


	
   

  	
  CAPMARK FINANCE INC.,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CAPMARK INVESTMENTS LP,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MORTGAGE INVESTMENTS, LLC,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SJM CAP, LLC,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CRYSTAL BALL HOLDING OF
  BERMUDA

  LIMITED, as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title: