Exhibit 10.1


 


EXECUTION COPY


 


AMENDMENT NO. 
8 AND WAIVER TO THE BRIDGE LOAN AGREEMENT


 


Dated as of May 21, 2009


 


AMENDMENT
NO. 8 AND WAIVER TO THE BRIDGE LOAN AGREEMENT (this “Amendment and Waiver”) among
Capmark Financial Group Inc., a Nevada corporation (the “Company”), the
financial institutions and other institutional lenders party hereto, and
Citicorp North America, Inc., as administrative agent (the “Agent”)
for the Lenders.


 


RECITALS:


 


(1)           The
Company, the financial institutions and other institutional lenders party
thereto (the “Lenders”), the Agent and the other agents party thereto
have entered into that certain Bridge Loan Agreement dated as of March 23,
2006, as amended by Amendment No. 1 to the Bridge Loan Agreement dated as
of December 7, 2006, Amendment No. 2 to the Bridge Loan Agreement
dated as of June 30, 2008, 
Amendment No. 3 to the Bridge Loan Agreement dated as of March 23,
2009, Amendment No. 4 to the Bridge Loan Agreement dated as of March 24,
2009, Amendment No. 5 to the Bridge Loan Agreement dated as of April 9,
2009, Amendment No. 6 and Waiver to the Bridge Loan Agreement  dated as of April 20, 2009 and Amendment
No. 7 and Waiver to the Bridge Loan Agreement dated as of May 8, 2009
(as further amended, supplemented or otherwise modified, the “Bridge Loan
Agreement”).  Capitalized terms not
otherwise defined in this Amendment and Waiver have the same meanings as
specified in the Bridge Loan Agreement.


 


(2)           The
Company has requested that the Lenders agree to (a) extend the Maturity
Date of the Loans under the Bridge Loan Agreement (any such Lender agreeing to
so extend, an “Extending Lender”) as hereinafter set forth and (b) waive
certain covenants under the Bridge Loan Agreement.


 


(3)           Pursuant
to subsection 9.1(a) of the Bridge Loan Agreement, the Majority Lenders
may, or, with the written consent of the Majority Lenders, the Agent may, from
time to time, enter into with the Company, written amendments, supplements or
modifications to the Bridge Loan Agreement for the purpose of adding any
provisions to the Bridge Loan Agreement or changing in any manner the rights of
the Lenders or of the Company under the Bridge Loan Agreement.


 


(4)           Pursuant
to subsection 9.1(y)(i) of the Bridge Loan Agreement, no amendment to the
Bridge Loan Agreement shall extend the scheduled date of any payment of any
Loan without the consent of each Lender directly affected thereby.


 


(5)           The
Majority Lenders and the Extending Lenders have agreed, subject to the terms
and conditions stated below, to amend the Bridge Loan Agreement as hereinafter
set forth.


 


SECTION 1.           AMENDMENTS AND WAIVER TO BRIDGE LOAN
AGREEMENT


 


The Bridge Loan Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended as follows:


 


(a)           Section 1.01 of the Bridge Loan
Agreement is hereby amended by inserting in alphabetical order a new definition
to read as follows:


 


“Amendment No. 8 Effective Date”: the date of effectiveness
of Amendment No. 8 and Waiver in accordance with the terms thereof.


 

















 


(b)           The definition of “Maturity Date” set
forth in Section 1.01 of the Bridge Loan Agreement is hereby amended and
restated in its entirety to read as follows:


 


“Maturity
Date” means with respect to any Loans and Commitments held on the Amendment
No. 8 Effective Date, May 29, 2009 at 5:00 p.m. EDT.


 


(c)           The Agent and the Majority Lenders
hereby waive, solely for the period commencing on the date hereof through May 29,
2009 at 5:00 p.m. EDT (the “Waiver Termination Date”), the Events
of Default arising directly from the Company’s failure to maintain, pursuant to
Section 6.1 of the Bridge Loan Agreement, the Total Consolidated
Indebtedness at the last day of each of the fiscal quarters ended December 31,
2008 and March 31, 2009 to Total Capitalization at such dates at a ratio
not greater than 0.87 to 1.0, in each case without giving effect to ARB51, FIN
46(R) or FAS 66 in each case in relation to the Company’s affordable tax
credit syndication business (the “Bridge Loan Agreement Events of Default”).


 


(d)           Until the Waiver Termination Date,
the Majority Lenders hereby agree to forbear (and instruct the Agent to
forbear) from exercising any right or remedy under the Bridge Loan
Agreement as a result of the occurrence and continuance of the Events of
Default arising from the Bridge Loan Agreement Events of Default.


 


(e)           On the Waiver Termination Date, without any further action by the Agent
and the Majority Lenders, all of the terms and provisions set forth in the
Bridge Loan Agreement with respect to any Event of Default thereunder that is
waived hereunder and not cured prior to the Waiver Termination Date shall have
the same force and effect as if this Amendment and Waiver had not been entered
into by the parties hereto, and the Agent and the Majority Lenders shall have
all of the rights and remedies afforded to them under the Bridge Loan Agreement
with respect to any such Event of Default as though no waiver had been granted
by them hereunder.  Notwithstanding
anything contained herein to the contrary, the foregoing
waivers are not intended and shall not be deemed or construed to constitute a
waiver of any Default or any other Event of Default that hereafter may occur
under the Bridge Loan Agreement or to establish a custom or course of dealing
among the Company, the Agent, the Majority Lenders or any of them.  Except
as specifically set forth herein, the Agent and the Majority Lenders hereby
expressly reserve all of their rights and remedies under the Bridge Loan
Agreement, the other Loan Agreements and applicable law.


 


(f)            The Company agrees that, until the
Waiver Termination Date, it shall not make, or cause to be made, any repayment
in respect of the Loans.


 


(g)           From the date hereof until the Waiver Termination Date, notwithstanding
the provisions of Section 9.6 of the Bridge Loan Agreement, no Lender
shall be permitted to (i) assign or otherwise transfer to one or more
Assignees all or a portion of its rights or obligations under the Bridge Loan
Agreement or (ii) sell participations to one or more Participants in
all or a portion of its rights or obligations under the Bridge Loan
Agreement, in each case pursuant to Section 9.6 of the Bridge Loan
Agreement.


 


(h)           The
Company hereby agrees to negotiate in good faith with the Agent and Lenders
to finalize by no later than May 29, 2009 the amendments to the
Bridge Loan Agreement and to the Senior Credit Facility and the definitive
documentation for the “Facility” described in the commitment letters
dated on or about May 6, 2009 (together with the Term Sheet
referred to therein, the “Commitment Letters”) entered into by certain
Lenders and certain lenders under the Senior Credit Facility, in each
case on substantially the terms and conditions set forth in the
Commitment Letters.


 


2

















 


SECTION 2.           CONDITIONS OF EFFECTIVENESS


 


This Amendment and Waiver shall
become effective as of the date first above written when, and only when, the
following conditions have been satisfied:


 


(a)           the Agent shall have received
counterparts of this Amendment and Waiver executed by the Company, the Majority
Lenders, the Extending Lenders, and/or, as to any such Majority Lender and
Extending Lender, advice satisfactory to the Agent that such Lender has
executed this Amendment and Waiver;


 


(b)           the Agent shall have received a
certificate of the Secretary or Assistant Secretary of the Company, in form and
substance satisfactory to the Agent, which certificate shall (i) certify
as to the incumbency and signature of the officers of the Company executing
this Amendment and Waiver (with the President, a Vice President, the Secretary
or Assistant Secretary of the Company attesting to the incumbency and signature
of the Secretary or Assistant Secretary providing such certificate), (ii) have
attached to it a true and correct copy of the resolutions of the Board of
Directors of the Company, which resolutions shall authorize the execution,
delivery and performance of this Amendment and Waiver, and (iii) certify
that, as of the date of such certificate (which shall not be earlier than the
date hereof), none of such resolutions shall have been amended, supplemented,
modified, revoked or rescinded;


 


(c)           the Agent shall have received
satisfactory evidence that Waiver No. 3 to the Senior Credit Facility
dated as of the date hereof shall have become effective;


 


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


 


(e)           all other fees and expenses of the
Agent and the Lenders (including (i) all reasonable fees and expenses of
counsel to the Agent and (ii) all retainers for counsel to the Agent and
advisor to the Agent), to the extent invoiced prior to the date hereof, shall
have been paid.


 


SECTION 3.           CONFIRMATION
OF REPRESENTATIONS AND WARRANTIES


 


(a)           The Company hereby represents and
warrants, on and as of the date hereof, that the representations and warranties
contained in the Bridge Loan Agreement (to the extent relating to the Company)
are true and correct in all material respects on and as of the date hereof,
before and after giving effect to this Amendment and Waiver, as though made on
and as of the date hereof, other than any such representations or warranties
that, by their terms, refer to a specific date.


 


SECTION 4.           AFFIRMATION
OF THE COMPANY


 


The Company hereby consents to the
amendments and waiver to the Bridge Loan Agreement effected hereby, and hereby
confirms and agrees that, notwithstanding the effectiveness of this Amendment
and Waiver, the obligations of the Company contained in the Bridge Loan
Agreement, as amended hereby, or in any other Loan Documents to which it is a
party are, and shall remain, in full force and effect and are hereby ratified
and confirmed in all respects.


 


SECTION 5.           REFERENCE
TO AND EFFECT ON THE LOAN DOCUMENTS


 


(a)           On and after the effectiveness of this Amendment and
Waiver, each reference in the Bridge Loan Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the Bridge Loan Agreement and
each reference in the Notes and each of the other Loan Documents to “the Bridge
Loan Agreement”, “thereunder”, “thereof” or words of like import referring to
the Bridge 


 


3

















 


Loan Agreement shall mean
and be a reference to the Bridge Loan Agreement as amended by this Amendment
and Waiver.


 


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


 


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


 


SECTION 6.           COSTS,
EXPENSES


 


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


 


SECTION 7.           EXECUTION
IN COUNTERPARTS


 


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


 


SECTION 8.           GOVERNING
LAW


 


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


 


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left blank.]


 


4

















 


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


 


 


	
   

  	
  CAPMARK FINANCIAL GROUP
  INC.,  

  as the Company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President 

  and Chief Financial Officer

  



 
















 


Acknowledged:


 


 


	
  CITICORP NORTH AMERICA,
  INC.,

  	
   

  
	
  as the Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Trevor Houston

  	
   

  
	
   

  	
  Name:

  	
  Trevor Houston

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  



 

















 


	
   

  	
  Citicorp North America
  Inc.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Trevor Houston

  
	
   

  	
   

  	
  Name:

  	
  Trevor Houston

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 

















 


	
   

  	
  JP Morgan Chase,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Melissa Roman

  
	
   

  	
   

  	
  Name:

  	
  Melissa Roman

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 

















 


	
   

  	
  Credit Suisse, Cayman
  Islands Branch,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Didier Siffer

  
	
   

  	
   

  	
  Name:

  	
  Didier Siffer

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Criscito

  
	
   

  	
   

  	
  Name:

  	
  Michael Criscito

  
	
   

  	
   

  	
  Title:

  	
  Managing Director 

  



 

















 


	
   

  	
  DK Acquisition Partners,
  L.P., by M.H. 

  
	
   

  	
  Davidson & Co.,
  its General Partner,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Conor Bastable

  
	
   

  	
   

  	
  Name:

  	
  Conor Bastable

  
	
   

  	
   

  	
  Title:

  	
  General Partner

  



 

















 


	
   

  	
  The Royal Bank of Scotland
  plc,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Fabiano

  
	
   

  	
   

  	
  Name:

  	
  Michael Fabiano

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 
















 


	
   

  	
  Goldman Sachs Credit
  Partners L.P.,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caroline Benton

  
	
   

  	
   

  	
  Name:

  	
  Caroline Benton

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 

















 


	
   

  	
  Deutsche Bank AG, New
  York,

  
	
   

  	
  as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Emile Van den Bol

  
	
   

  	
   

  	
  Name:

  	
  Emile Van den Bol

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. Chris Jones

  
	
   

  	
   

  	
  Name:

  	
  R. Chris Jones

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 

















 


Annex A to


Amendment No. 8 and Waiver to the Bridge Loan Agreement


 


Form of Guarantor Consent


 


CONSENT


 


Reference is made to the Bridge Loan Agreement,
dated as of March 23, 2006, as amended by Amendment No. 1 to the
Bridge Loan Agreement, dated as of December 7, 2006, Amendment No. 2
to the Bridge Loan Agreement, dated as of June 30, 2008, Amendment No. 3
to the Bridge Loan Agreement, dated as of March 23, 2009, Amendment No. 4
to the Bridge Loan Agreement, dated as of March 24, 2009, Amendment No. 5
to the Bridge Loan Agreement, dated as of April 9, 2009, Amendment No. 6
and Waiver to the Bridge Loan Agreement dated as of April 20, 2009, Amendment
No. 7 and Waiver to the Bridge Loan Agreement dated as of May 8, 2009
and Amendment No. 8 and Waiver to the Bridge Loan Agreement dated as of May 21,
2009 among Capmark
Financial Group Inc. (the “Company”), the financial institutions and
other institutional lenders party thereto, Citicorp North America, Inc.,
as administrative agent for the Lenders and the other agents party thereto (such Bridge Loan Agreement, as so amended, the “Bridge Loan
Agreement”).


 


Each of the undersigned confirms and agrees that
notwithstanding the effectiveness of the foregoing Amendment No. 8 and
Waiver to the Bridge Loan Agreement, each Loan Document to which such Person is
a party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects, in each case as amended by Amendment No. 8
and Waiver to the Bridge Loan Agreement (in each case, as defined therein).


 


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  COMMERCIAL EQUITY
  INVESTMENTS, INC.,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anne E. Kelly

  
	
   

  	
   

  	
  Name:

  	
  Anne E. Kelly

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  



 


	
   

  	
  CAPMARK CAPITAL INC.,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


	
   

  	
  NET LEASE ACQUISITION LLC,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


	
   

  	
  CAPMARK FINANCE INC.,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President
  and Chief Financial Officer

  



 


	
   

  	
  CAPMARK INVESTMENTS LP,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keith Kooper

  
	
   

  	
   

  	
  Name:

  	
  Keith Kooper

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


	
   

  	
  MORTGAGE INVESTMENTS, LLC,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay N. Levine

  
	
   

  	
   

  	
  Name:

  	
  Jay N. Levine

  
	
   

  	
   

  	
  Title:

  	
  President

  



 

















 


	
   

  	
  SJM CAP, LLC,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


	
   

  	
  CRYSTAL BALL HOLDING OF
  BERMUDA LIMITED,

  
	
   

  	
  as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter A. Widmann

  
	
   

  	
   

  	
  Name:

  	
  Peter A. Widmann

  
	
   

  	
   

  	
  Title:

  	
  President