Exhibit 10.3


 


EXECUTION COPY


 


AMENDMENT NO. 
9 AND WAIVER TO THE BRIDGE LOAN AGREEMENT


 


Dated as of May 29, 2009


 


AMENDMENT NO. 9 AND WAIVER 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. (“CNAI”), 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, 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 (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)           Contemporaneously herewith, the Company is entering
into that certain Term Facility Credit and Guaranty Agreement, dated as of May 29,
2009 among the Company, certain Subsidiaries of the Company party thereto, as
guarantors, CNAI, as administrative agent, and Citibank, N.A., as collateral
agent, and the lenders party thereto (as amended, restated, supplemented or
otherwise modified from time to time, the “Term Loan Agreement”), a
condition to effectiveness of which, among other things, is that the Company
shall use (a) the Cash Prepayment Amount (as defined below) to prepay in
cash not less than $28,125,000 of outstanding loans under the Facility and (b) proceeds
under the Term Loan Agreement to permanently prepay in cash not less than (i) $562,500,000
of outstanding Loans under the Facility (the “Prepayment”) and (ii) $937,500,000
of outstanding loans under the Senior Credit Facility (the foregoing
transactions collectively referred to herein as the “Transactions”).


 


(3)           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) amend certain provisions of the Bridge Loan Agreement as
hereinafter set forth.


 


(4)           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.


 


(5)           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.


 

















 


(6)           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
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 3, hereby amended as follows:


 


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


 


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


 


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


 


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


 


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


 


“Amendment No. 9”: Amendment No. 9 and Waiver to the
Agreement, dated as of May 29, 2009, among the Company, the Lenders party
thereto and the Agent.


 


“Amendment No. 9 Effective Date”:
the date of effectiveness of Amendment No. 9 in accordance with the terms
thereof.


 


“Applicable Adjustment Percentage”:
(a) for the first Fiscal Quarter ending after a Servicing Business
Disposition, 95%, (b) for the second Fiscal Quarter ending after a 


 


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Servicing Business Disposition, 90%, (c) for
the third Fiscal Quarter ending after a Servicing Business Disposition, 85% and
(d) for each Fiscal Quarter ending thereafter, 80%.


 


“Applicable Discount”: as defined in Exhibit A
to Amendment No. 9.


 


“Auction”: a “Dutch” auction
whereby the Company offers to purchase Loans pursuant to the auction procedures
set forth in Exhibit A to Amendment No. 9.


 


“Cash Prepayment Amount”: as
defined in Section 2.12(c).


 


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


 


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


 


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


 


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


 


“Excluded Information”: as defined in
subsection 9.6(ii).


 


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


 


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


 


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


 


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


 


“Initial Prepayment Lender”: each Lender that is also a “Lender”
under the Term Loan Agreement on the Amendment No. 9 Effective Date.


 


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


 


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


 


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


 


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


 


“Permitted Refinancing Indebtedness”: any Indebtedness issued or
incurred in connection with the refinancing, refunding, exchange or replacement
of the Existing Notes (and, to the extent that any such Indebtedness (x) is
accepted by any Lenders hereunder to refinance, refund, exchange or replace
Indebtedness under the Facility, the Facility or (y) is accepted by any
lenders under the Senior Credit Facility to refinance, refund, exchange or
replace the loans under the Senior Credit Facility, the loans under the Senior
Credit Facility); provided that (a) no Default shall have occurred
and be continuing before and after giving effect to such issuance or
incurrence, (b) in connection with any such issuance or incurrence, the
Lenders hereunder and the lenders under the Senior Credit Facility shall be
offered, on a proportionate basis in accordance with the provisions of the this
Agreement and the Senior Credit Facility, as applicable, such Permitted
Refinancing Indebtedness on the same terms and conditions (including, without
limitation, the same security package) (provided, however, that
in connection with any payment, redemption, exchange or repurchase of the
Existing Notes in which availability under the Notes Cash Basket is utilized in
connection with such transaction, any such proportionate offer to the Lenders
hereunder and the lenders under the Senior Credit Facility (i) need not
include any cash payment to the Lenders hereunder or the lenders under the Senior
Credit Facility to the extent that a cash payment is made out of the proceeds
from the Notes Cash Basket (and in the event that no cash payment is made to
the Lenders hereunder and the lenders under the Senior Credit Facility, such
proportionate offer shall be determined as if no cash payment were made to the
holders of the Existing Notes) and (ii) may include a cash payment to the
Lenders hereunder and/or the lenders under the Senior Credit Facility, provided
that any such cash payment to the 


 


4

















 


Lenders hereunder or the lenders under the Senior Credit Facility shall
not reduce the Notes Cash Basket, (c) no Permitted Refinancing
Indebtedness shall have any scheduled or mandatory principal repayments prior
to August 23, 2011 and (d) the principal amount of the Indebtedness
being refinanced, refunded, exchanged or replaced shall not be increased above
the principal amount thereof outstanding immediately prior to such refinancing,
refunding, exchange or replacement.


 


“Prepayment”: as defined in Amendment No. 9.


 


“Qualifying Lender”: as defined in Exhibit A
to Amendment No. 9.


 


“Reply Amount”: as defined in Exhibit A
to Amendment No. 9.


 


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


 


“Run Rate Operating Expense”: for any period, an amount equal
to: (a) total operating expenses of the Company and its Subsidiaries on a
Consolidated basis for such period; less (b) total operating
expenses of the Specified Subsidiaries on a Consolidated basis for such period
(other than any such operating expenses that (x) prior to such period were
operating expenses of the Company or any of its Subsidiaries (other than any
Specified Subsidiaries) and (y) have been migrated to the Specified
Subsidiaries in connection with the implementation of any restructuring,
winding down or disposition of business units or assets of the Company and its
Subsidiaries or the implementation of the operating cost reduction plan of the
Company); less (c) the sum of (without duplication): (i) the
amount of depreciation and amortization expense and impairment charges in
respect of fixed assets, mortgage servicing rights and intangible assets; (ii) non-cash
expenses or charges incurred in connection with the granting of, or accretion
on, options, warrants or other Equity Interests pursuant to any management or
director equity plan, stock option plan or similar employee compensation
arrangement; (iii) any expenses or charges directly related to the restructuring
of the Existing Notes, the Senior Credit Facility or the Loans hereunder
accounted for in such period, including the ongoing fees and expenses required
to be paid to the Lenders or their advisors in connection with the
restructuring of the Senior Credit Facility and the Loans hereunder; (iv) solely
with respect to the Fiscal Quarters ended June 30, 2009, September 30,
2009, December 31, 2009 and March 31, 2010, the amount of any
one-time restructuring charges, costs or other business optimization expenses
directly incurred in connection with the restructuring, winding down or
disposition of business units or assets outside of the ordinary course of
business of the Company and its Subsidiaries or the implementation of the
operating cost reduction plan of the Company (including professional fees and
expenses, severance costs, contract breakage costs and costs related to the
closure and/or consolidation of facilities) during such period; provided
that the amount of restructuring charges, costs and expenses deducted from Run
Rate Operating Expenses pursuant to this clause (iv) shall not exceed
$50,000,000 in the aggregate; and (v) operating expenses of variable
interest entities that are required to be Consolidated with the Company
pursuant to FASB 


 


5

















 


Interpretation No. 46(R), operating expenses of investment
partnerships and similar entities that are required to be Consolidated with the
Company pursuant to Emerging Issues Task Force Issue No. 04-5 and
operating expenses of entities that are required to be Consolidated with the
Company pursuant to Statement of Financial Accounting Standards No. 66 or
similar accounting principles implemented by applicable accounting standards
bodies after the date hereof relating to consolidation of subsidiaries; in each
case of the Company and its Subsidiaries (excluding the Specified Subsidiaries)
for such period; plus (c) (X) the Applicable Adjustment
Percentage times (Y) the aggregate amount of operating expenses of any
Servicing Business subject to a Servicing Business Disposition prior to or
during such period for the portion of such period occurring after the date of
such Servicing Business Disposition (determined on a pro forma basis based on
the last full fiscal quarter period ending immediately prior to the date of
such Servicing Business Disposition and making the adjustments, to the extent
applicable, set forth in this definition of “Run Rate Operating Expense”);
all as determined for such period in accordance with GAAP.


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


“Specified Servicing Loan Facility”: the proposed Servicing Loan
Facility disclosed by the Company to the “Lead Arrangers” (as defined in the
Term Loan Agreement) prior to the Amendment No. 9 Effective Date, to the
extent that such Servicing Loan Facility is consummated on substantially the
same terms and conditions as disclosed by the Company to the “Lead Arrangers”
(as defined in the Term Loan Agreement).


 


“Specified Repayment Date”: as defined in subsection 2.18.


 


“Term Loan Agreement”: as defined in Amendment No. 9.


 


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


 


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


 


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


 


“Bankruptcy Remote Special Purpose
Entity”: (i) a Person that satisfies each of the following criteria: (a) such
Person is an entity that is consolidated for accounting purposes with the  Company and designed to make remote the
possibility that it would enter into bankruptcy or other receivership; (b) all
or substantially all of such Person’s assets consist of Receivables or
securities backed by Receivables plus any rights or other assets (including
cash reserves) designed to assure the servicing or timely distribution of
proceeds to the holders of its obligations; and (c) Receivables or
securities backed by Receivables owned by such Person satisfy the legal
isolation criteria set forth in paragraph 9(a) of Statement of Financial
Accounting Standards No. 140 (“FAS 140”) (in relation to the
Company and any Subsidiary that is not a Bankruptcy Remote Special Purpose
Entity) or (ii) any Subsidiary formed as a “successor borrower” in
connection with any loan defeasance activities that satisfies the legal
isolation requirements of FAS 140.


 


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


 


7

















 


“Cash Equivalents”:


 


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


 


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


 


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


 


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


 


(e)           in the case of
any Foreign Subsidiary of the Company, investments (i) in direct
obligations of the sovereign nation (or any agency or instrumentality thereof)
in which such Subsidiary is organized or is conducting a substantial amount of
business or in obligations fully and unconditionally guaranteed by such
sovereign nation (or agency or instrumentality) or (ii) of the type and
maturity described in clause (a) through (d) above of foreign
obligors, which investments or obligors (or their parents) have ratings
equivalent to those described above (which may be equivalent ratings from
foreign rating agencies).


 


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


 


“ERISA Event”: (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
ERISA Plan unless the 30 day notice requirement with respect to such event has
been waived by the PBGC or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of
such Section) are met with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of an ERISA Plan, and an event described in paragraph (9), (10),
(11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such ERISA Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to an ERISA Plan; (c) the
provision by the administrator of any ERISA Plan of a notice of intent to
terminate such ERISA Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the cessation of operations at a facility of any Loan Party or
any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate 


 


8

















 


from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 303(k) of ERISA
shall have been met with respect to any ERISA Plan; (g) the adoption of an
amendment to an ERISA Plan requiring the provision of security to such ERISA
Plan pursuant to Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate an ERISA Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042
of ERISA that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such ERISA Plan.


 


(f)            The definition of “Eurodollar Rate” set forth in
subsection 1.1 of the Bridge Loan Agreement is hereby amended and restated in
its entirety to read as follows:


 


“Eurodollar Rate”:  with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the higher of (a) 1.5% per annum
and (b) 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 Reuters Screen LIBOR01 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 described in clause (b) above does not appear on Reuters Screen
LIBOR01 (or otherwise on such service), the rate determined pursuant to clause (b) above
shall be determined by reference to such other publicly available service for
displaying eurodollar rates as may be agreed upon by the Agent and the Company
or, in the absence of such agreement, the rate determined pursuant to clause (b) above
shall instead be the rate per annum equal to the average of the respective
rates notified to the Agent by each of the Reference Lenders as the rate at
which such Reference Lender is offered deposits in Dollars at or about 10:00 A.M.,
New York City time, two Business Days prior to the beginning of such Interest
Period in the interbank eurodollar market where the eurodollar and foreign
currency and exchange operations in respect of its 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.


 


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


 


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


 


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


 


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


 


“Hedge Agreements”: any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap 


 


9

















 


transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master agreement.


 


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


 


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


 


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


 


“Maturity
Date”: with respect to any Loans and Commitments on the Amendment No. 9
Effective Date, the earliest to occur of (i) March 23, 2011, (ii) the
Specified Repayment Date and (iii) the date of acceleration of the Loans
pursuant to subsection 7.1.


 


(k)           The definition of “Net
Cash Proceeds” set forth in subsection 1.1 of the Bridge Loan Agreement is
hereby amended and restated in its entirety to read as follows:


 


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


 


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


 


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


 


(m)          Subsection 2.4 of the Bridge
Loan Agreement is hereby amended by inserting the following new sentence at the
end of clause (a) thereof:


 


Unless
otherwise specified, (x) any prepayment of the Loans hereunder shall be
accompanied by a proportionate prepayment of the loans under the Senior Credit
Facility 


 


10

















 


and
(y) any prepayment pursuant to this subsection 2.4(a) shall be
applied ratably to the outstanding principal amount of the Loans then owing to
the Lenders.


 


(m)          Subsection 2.4(b) of
the Bridge Loan Agreement is hereby amended by inserting the following new
sub-clause (iii) after sub-clause (ii) therein:


 


(iii)          The Company shall, within
one Business Day following the receipt by the Company or any of its
Subsidiaries of (1) the first $100,000,000 of the Net Cash Proceeds from
any Specified Servicing Loan Facility, prepay the Loans in an amount equal to
37.5% of such Net Cash Proceeds, such amount to be applied ratably to the
outstanding principal amount of the Loans then owing to the Initial Prepayment
Lenders (or any Assignee, to the extent that an
Initial Prepayment Lender has assigned all or a portion of its Loans to an
Assignee pursuant to subsection 9.6) and (2) the first
$200,000,000 of the Net Cash Proceeds from any Servicing Loan Facility (other
than the Specified Servicing Loan Facility) by a Loan Party or any of its
Subsidiaries, prepay the Loans in an amount equal to 37.5% of 50% of such Net
Cash Proceeds, such amount to be applied ratably to the outstanding principal
amount of the Loans then owing to the Initial Prepayment Lenders (or any Assignee, to the extent that an Initial Prepayment Lender has
assigned all or a portion of its Loans to an Assignee pursuant to subsection
9.6); provided that in no event shall the aggregate Net Cash
Proceeds to be applied hereunder and under the Senior Credit Facility exceed
$100,000,000.


 


(n)           Subsection 2.12 of the
Bridge Loan Agreement is hereby amended by inserting the following new clause (c) after
clause (b) therein:


 


(c)           Notwithstanding anything
contained in subsection 2.12(a) or 9.7 to the contrary, (i) on the
Amendment No. 9 Effective Date, cash in an amount equal to not less than
$28,125,000 (the “Cash Prepayment Amount”) and the Prepayments shall be
applied to permanently prepay outstanding Loans of the Initial Prepayment
Lenders ratably in accordance with the Initial Prepayment Lenders’ respective
Commitments, (ii) each non-ratable redemption or purchase of Loans by the
Company pursuant to subsection 2.19 shall be applied to permanently reduce the
outstanding Loans of any Qualifying Lender in an amount equal to such Lender’s
allocable portion of the Reply Amount at the Applicable Discount and (iii) the
aggregate principal amount of any Permitted Refinancing Indebtedness that is
accepted by any Lender pursuant to subsection 2.20 to refinance, refund,
exchange or replace such Lender’s Loans shall be applied to permanently
refinance, refund, exchange or replace (as the case may be) such Lender’s Loans
ratably in accordance with the aggregate amount of the Loans held by all such
consenting Lenders.


 


(o)           Section 2 of the Bridge
Loan Agreement is hereby amended by inserting the following new subsections
2.18, 2.19 and 2.20 in numerical order at the end thereof:


 


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


 


11
















 


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


 


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


 


(c) The
parties hereto hereby agree that any Auction and cancellation of Loans will not
constitute a voluntary prepayment made by the Company for any purpose under
this Agreement and the other Loan Documents and shall not be subject to
subsections 2.4, 2.12(a) or 9.7.


 


2.20
Permitted Refinancing Indebtedness. 
(a) In connection with the proposed issuance or incurrence of any
Permitted Refinancing Indebtedness, the Company shall within ten Business Days
after the date notice is given to the holders of the applicable Existing Notes,
give written notice of such Permitted Refinancing Indebtedness to the Agent and
the Lenders, which notice shall specify (i) the terms and conditions of
such Permitted Refinancing Indebtedness, including, without limitation, the
maximum aggregate principal amount of such proposed Permitted Refinancing
Indebtedness proposed to be issued or incurred assuming all lenders under the
Senior Credit Facility and all Lenders hereunder elect to receive the maximum
amount of Permitted Refinancing Indebtedness to which they would be entitled
pursuant to clause (b), (ii) the maturity thereof, any scheduled
amortization in respect thereof, the interest rate in respect thereof and the
collateral (if any) securing such Permitted Refinancing Indebtedness, (iii) the
series of Existing Notes proposed to be refinanced, refunded, exchanged or
replaced by such Permitted Refinancing Indebtedness, (iv) the Aggregate
Requested Refinanced Indebtedness Amount (as defined below), (v) the
amount of cash, if any, being offered to the holders of the applicable Existing
Notes in connection with such refinancing, refunding, exchange or replacement
and (vi) the principal amount of Existing Notes that is being refinanced,
refunded, exchanged or replaced per $100 of such Permitted Refinancing
Indebtedness.  The Company shall also
deliver, together with such written notice, copies of the applicable loan
documents, indentures, promissory notes, note purchase agreements, and other
similar documents that shall govern the terms and conditions of such Permitted
Refinancing Indebtedness as well as a draft of the intercreditor agreement if
such Permitted Refinancing Indebtedness is to be secured.


 


12

















 


(b) On the date the holders of Existing Notes shall be required to
respond in respect of the Permitted Refinancing Indebtedness of the applicable
Existing Notes (or, in the event that notice to the Lenders was delivered after
delivery of notice to the holders of the Existing Notes, within the same number
of Business Days after delivery of notice as the holders under the Existing
Notes were required to respond), each Lender may, in its sole discretion,
deliver a notice (the “Acceptance Notice”) to the Agent and the Company
agreeing to refinance, refund, exchange or replace all or a portion, as
applicable, of its Loans with such Permitted Refinancing Indebtedness on the
same terms and conditions as are being offered to the holders of the Existing
Notes.  Such notice shall specify the
principal amount of the Loans that such Lender desires to be refinanced (the “Requested
Bridge Loan Amount”), it being understood that the aggregate principal
amount of the Loans that may be refinanced per $100 of Permitted Refinancing
Indebtedness shall be equal to the aggregate principal amount of the Existing
Notes to be refinanced per $100 of Permitted Refinancing Indebtedness to be
issued in respect of such Existing Notes.


 


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


 


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


 


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


 


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


 


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


 


5.1.  Financial Statements.  Furnish to each Lender:


 


(a) As soon as available and in
any event within 60 days after the end of each of the first three quarters of
each Fiscal Year (or such earlier date on which the Company has filed such
financial statements with the SEC), a Consolidated and Consolidating balance
sheet of the Company and its Subsidiaries as of the end of such quarter, and
Consolidated and Consolidating statements of income and cash flows of the
Company and its Subsidiaries for the period commencing at the end of the
previous quarter and ending with the end of such quarter, and Consolidated and
Consolidating statements of income and cash flows of 


 


13

















 


the Company and its Subsidiaries for
the period commencing at the end of the previous Fiscal Year and ending with
the end of such quarter, setting forth, in each case in comparative form the
corresponding figures for the corresponding period of the immediately preceding
Fiscal Year, all in reasonable detail and in each case prepared in accordance
with GAAP;


 


(b) As soon as available and in
any event no later than 110 days following the end of each Fiscal Year (or such
earlier date on which the Company has filed such financial statements with the
SEC), a copy of the annual audit report for such Fiscal Year, including therein
a Consolidated and Consolidating balance sheet of the Company and its
Subsidiaries as of the end of such Fiscal Year and Consolidated and
Consolidating statements of income and cash flows of the Company and its
Subsidiaries for such Fiscal Year, in each case prepared in accordance with
GAAP, and in each case accompanied by an opinion acceptable to the Agent of
independent public accountants of recognized national standing acceptable to
the Agent, which report and opinion shall be prepared in accordance with the
standards of the Public Company Accounting Oversight Board and shall not be subject
to any qualification, exception or other statement as to the scope of such
audit or any other statement to that effect;


 


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


 


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


 


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


 


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


 


14

















 


to the Agent of the computations used
in determining compliance with the covenants contained in subsection 6.1;


 


(e) As soon as available, and in
any event no later than 30 days after the end of each Fiscal Year of the
Company, a reasonably detailed Consolidated and Consolidating budget for the
following Fiscal Year and each subsequent Fiscal Year thereafter through 2011
(including a projected Consolidated and Consolidating balance sheet of the
Company and its Subsidiaries as of the end of the following Fiscal Year), the
related projected Consolidated and Consolidating statements of cash flow and
income for such Fiscal Year expected as of the end of each month during such
Fiscal Year (collectively, the “Projections”) in the form delivered to
the board of directors of the Company, which Projections shall be accompanied
by a certificate of the chief financial officer of the Company stating that
such Projections are based on then reasonable estimates and then available
information and assumptions; it being understood that the Projections are made
on the basis of the Company’s then current good faith views and assumptions
believed to be reasonable when made with respect to future events, and
assumptions that the Company believes to be reasonable as of the date thereof
(it being understood that projections are inherently unreliable and that actual
performance may differ materially from the Projections).


 


(r)            Subsection 5.2 of the Bridge
Loan Agreement is hereby deleted in its entirety and the following new
subsection 5.2 is inserted in its place:


 


5.2. 
Certificates; Other Information. 
Furnish to each Lender:


 


(a)(i) As soon as available, and
in any event no later than the fifth Business Day of each calendar week, a
report of the average daily Liquidity Availability for the immediately
preceding calendar week, in a form reasonably satisfactory to the Agent and
certified by the chief restructuring officer of the Company and (ii) as
soon as available, and in any event no later than the third Business Day prior
to any prepayment, redemption or purchase of the Existing Notes pursuant to a
Permitted Notes Refinancing or any redemption or purchase of Indebtedness under
the Senior Credit Facility or hereunder pursuant to an Auction, a report of the
average daily Liquidity Availability for each of the three months prior to such
prepayment, redemption or purchase;


 


(b) Promptly and in any event
within 3 Business Days after any Loan Party or any ERISA Affiliate knows that
any ERISA Event has occurred with respect to an ERISA Plan, a statement of a
Responsible Officer of the Company describing such ERISA Event and the action,
if any, that such Loan Party or such ERISA Affiliate has taken and proposes to
take with respect thereto, on the date any records, documents or other
information must be furnished to the PBGC with respect to any ERISA Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents and
information;


 


(c) Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any ERISA Plan or to have a trustee appointed to administer any ERISA
Plan;


 


(d) Promptly and in any event
within 60 days after the filing thereof with the United States Internal Revenue
Service, copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each ERISA Plan;


 


15

















 


(e) Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (i) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (ii) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (iii) the
amount of liability incurred, or that may be incurred, by such Loan Party or
any ERISA Affiliate in connection with any event described in clause (i) or
(ii) above;


 


(f) Promptly after the
commencement thereof, notice of each unstayed action, suit, investigation,
litigation and proceeding before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries that (i) is reasonably
likely to be determined adversely and if so determined adversely could be
reasonably likely to have a Material Adverse Effect or (ii) purports to
affect the legality, validity or enforceability of this Agreement, any Note,
any other Loan Document or the consummation of the transactions contemplated
hereby;


 


(g) Promptly after the occurrence
of any event or development which could reasonably be expected to have a
Material Adverse Effect, a statement of a Responsible Officer of the Company
setting forth the details of such event or development;


 


(h) 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 SEC 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 SEC;


 


(i) Promptly upon receipt thereof,
copies of all material notices, requests and other documents received by any
Loan Party or any of its Subsidiaries under or pursuant to any instrument,
indenture, loan or credit or similar agreement directly related to any breach
or default by any party thereto or otherwise have a Material Adverse Effect
and, from time to time upon request by the Agent, such information and reports
regarding such instruments, indentures and loan and credit and similar
agreements as the Agent may reasonably request; and


 


(j) Such other information
respecting the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Loan Party or any of its
Subsidiaries as the Agent may from time to time reasonably request.


 


Documents required to be delivered pursuant to subsections 5.1 and 5.2
(to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date of receipt by the Agent irrespective
of when such document or materials are posted on the Company’s behalf on
IntraLinks/IntraAgency or another relevant website (the “Informational
Website”), if any, to which each Lender and the Agents have unrestricted
access (whether a commercial, third-party website or whether sponsored by the
Agent); provided that the accommodation provided by the foregoing
sentence shall not impair the right of the Agent to request and receive from
the Loan Parties physical delivery of any specific information provided for in
subsections 5.1 and 5.2.  Other than with
respect to the bad faith, gross negligence or willful misconduct on the part of
the Agent or Lenders, none of the Agent or the Lenders shall have any liability
to any Loan Party, each other or 


 


16

















 


any of their respective Affiliates associated with establishing and
maintaining the security and confidentiality of the Informational Website and
the information posted thereto.


 


(s)           Subsection 6.1 of the Bridge
Loan Agreement is hereby deleted in its entirety and the following new
subsection 6.1 is inserted in its place:


 


6.1.  (a)  Run Rate Operating Expense.  The Company shall not permit the Run Rate
Operating Expense for any Test Period set forth below to be greater than the
amount set forth opposite such period below:


 




	
  Test Period Ending

  	
   

  	
  Run Rate Operating Expense

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  121,000,000

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  238,000,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  347,000,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  446,000,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  416,000,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  391,000,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  373,000,000

  	
   

  






 


(b)           Minimum Liquidity.  The Company shall not permit Liquidity
Availability on an average daily basis for any calendar week to be less than
$300,000,000.


 


(t)            Subsection 6.3 of the Bridge
Loan Agreement is hereby amended by deleting the period at the end of clause (g) thereof,
inserting a semi-colon its place and inserting the following new clauses (h), (i) and
(j):


 


(h)           Liens securing Indebtedness in an aggregate
principal amount not to exceed $1,500,000,000 in respect of the Term Loan
Agreement;


 


(i)            Liens on Servicing Loan Assets that secure any
Servicing Loan Facility permitted under Section 6.4(j); and


 


(j)            Liens securing any Permitted Refinancing
Indebtedness.


 


(u)           Subsection 6.4 of the Bridge
Loan Agreement is hereby amended by deleting the period at the end of clause (h) thereof,
inserting a semi-colon its place and inserting the following new clauses (i), (j) and
(k):


 


(i)            Indebtedness in respect of the Term Loan Agreement
in an aggregate principal amount not to exceed $1,500,000,000;


 


(j)            Indebtedness in respect of any Servicing Loan
Facility in an aggregate outstanding principal amount not to exceed
$900,000,000; and


 


(k)           solely with respect to the Existing Notes, the Senior
Credit Facility and the Facility, any Permitted Refinancing Indebtedness in
respect thereof.


 


17

















 


(v)           Subsection 7.1(b) of
the Bridge Loan Agreement is hereby amended by deleting “subsection 5.2(b)” in
the second line thereof and inserting “subsection 5.1(d)” in its place.


 


(w)          Subsection 7.1(e) of
the Bridge Loan Agreement is hereby amended by inserting (x) “(i)” prior
to “The Company” in the first line thereof and (y) the following new
sub-clause (ii) at the end thereof:


 


or
(ii) any event shall occur or condition shall exist under the Term Loan
Agreement or the Senior Credit Facility and shall continue after the applicable
grace period, if any, specified therein, if the effect of such event or
condition is to accelerate, or to permit the acceleration of the maturity of
the Indebtedness outstanding thereunder or otherwise cause, or to permit the
holders thereof to cause, such Indebtedness to come due prior to its stated
maturity.


 


(x)            Subsection 9.6 of the Bridge
Loan Agreement is hereby amended by inserting the following new sub-clause (i) in
alphabetical order at the end thereof:


 


(i)            (i) Notwithstanding anything to the contrary in
this Agreement or any other Loan Document, each Lender acknowledges that,
solely in connection with any Auction permitted under subsection 2.19, the
Company may be an Assignee hereunder and may purchase or acquire Loans
hereunder from Lenders from time to time.


 


(ii)           In connection with each Auction, each Lender
hereby acknowledges and agrees that (x) the Company currently may have,
and later may come into possession of, information regarding the Company and
its Affiliates, or the Obligations that is not known to such Lender and that
may be material to a decision to enter into an Auction (any such information, “Excluded
Information”), (y) such Lender has determined to enter into such
transactions notwithstanding such Lender’s lack of knowledge of the Excluded
Information and (z) none of the Company, the Agent nor any of their
respective Affiliates shall have any liability to the Lenders, their
Affiliates, or their respective successors or assigns.  Each Lender,
to the extent permitted by applicable law hereby waives and releases any claims
such Lender may have against the Company, the Agent and their respective
Affiliates, with respect to the nondisclosure of the Excluded Information, now
or in the future, other than any claim resulting from the gross negligence or
willful misconduct of the Company and its respective Affiliates.


 


(iii)          Immediately
upon any assignment to the Company in connection with any Auction permitted
under subsection 2.19, any Loan assigned to the Company shall be automatically
cancelled (and may not be resold by the Company), whereupon the Company shall
not be a Lender for any purpose hereunder or under the Loan Documents.  In furtherance of the foregoing, the Loan
Parties hereby agree that the Company
may not make or bring any claim against the Agent or any Lender with respect to
the duties and obligations of such Agent or Lender pursuant to this Agreement
and the other Loan Documents.


 


(y)           Subsection 9.7 of the Bridge
Loan Agreement is hereby amended by inserting the following new sentence at the
end thereof:


 


Notwithstanding
the foregoing, the provisions of this subsection 9.7 shall not apply to any
payment received by any Lender in accordance with subsections 2.19 and 2.20.


 


18

















 


(z)            The Bridge Loan Agreement is
hereby amended by inserting Schedule 1.01(b) and Schedule 1.01(c) set
forth on Annex B hereto.


 


(aa)         The Agent and the Majority
Lenders hereby waive the Events of Default arising directly from the Company’s
failure to maintain, pursuant to subsection 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.  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.


 


(bb)         Each Lender hereby waives (i) solely
with respect to the Cash Prepayment Amount and the Prepayment, payment by the
Company of any amounts required to compensate such Lender pursuant to
subsection 2.16(a) and (ii)(A) any prepayment notice otherwise
required by subsection 2.4 in connection with the Transactions and (B) any
time period by which a notice of Borrowing is required to be delivered pursuant
to subsection 2.2, in each case in connection with the Transactions.


 


(cc)         The undersigned agree that
the Bridge Loan Agreement is deemed to be amended to make any modifications to
the applicable payment, pro rata and sharing provisions of the Bridge Loan
Agreement needed in connection with effecting the changes to maturities
effected hereby.


 


SECTION 2.           ADDITIONAL
AMENDMENTS


 


The Bridge Loan Agreement is, upon the payment in
full in cash of all principal and interest in respect of the obligations under
the Term Loan Agreement, hereby automatically amended as follows:


 


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


 


“Capitalized
Leases”: all leases that have been or should be, in accordance with GAAP,
recorded as capitalized leases.


 


“CFC”:
any Foreign Subsidiary that is a “controlled foreign corporation” within the
meaning of Internal Revenue Code section 957(a).


 


“Excluded
Mortgage Loan Assets”: as specified on Schedule 1.01(d).


 


“Government
Related Enterprises”: collective reference to (a) the Federal Home
Loan Mortgage Corporation (Freddie Mac), (b) the Federal National Mortgage
Association (Fannie Mae) and (c) the United States Department of Housing
and Urban Development, including the Government National Mortgage Association
(Ginnie Mae).


 


“Guarantee Obligation”: 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, including any
Obligation of such Person, whether or not contingent, (a) to 


 


19

















 


purchase any primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for
the purchase or payment of any primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to purchase
property, assets, securities or services primarily for the purpose of assuring
the owner of any primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (d) otherwise to assure or hold
harmless the holder of any primary obligation against loss in respect thereof; provided
that the term “Guarantee Obligation” shall not include endorsements for
collection or deposit in the ordinary course of business.  The amount of any Guarantee Obligation shall
be determined by reference to the carrying value of such Guarantee Obligation,
with the “carrying value” being determined in a manner consistent with the
carrying value of the Guarantee Obligations as reflected on the Company’s
financial statements delivered pursuant to subsection 5.1(a) and (b).


 


“Indebtedness For Borrowed Money”: (a) all indebtedness of
a Person of the type described in clauses (a) and (b) (other than
direct or contingent obligations of such Person arising under surety bonds) of
the definition of “Indebtedness”, (b) all obligations of such Person in
respect of other transactions entered into by such Person that are intended to
function primarily as a borrowing of funds and (c) all Guarantee
Obligations of such Person in respect of any of the foregoing.


 


“Investment”: with respect to any Person, (a) any direct or
indirect purchase or other acquisition (whether for cash, securities, property,
services or otherwise) by such Person of, or of a beneficial interest in, any
Equity Interests or Indebtedness of any other Person, (b) any direct or
indirect purchase or other acquisition (whether for cash, securities, property,
services or otherwise) by such Person of all or substantially all of the
property and assets of any other Person or of any division, branch or other
unit of operation of any other Person, and (c) any direct or indirect
loan, advance, other extension of credit or capital contribution by such Person
to, or any other investment by such Person in, any other Person (including,
without limitation, any arrangement pursuant to which the investor incurs
indebtedness of the types referred to in clause (i) or (j) of
the definition of “Indebtedness” set forth in this Section 1.01 in respect
of such other Person).


 


“Material Subsidiary”: (a) on any date of determination,
any direct or indirect Subsidiary of the Company that, on such date, has (i) total
assets, together with the total assets of all of its Subsidiaries, greater than
or equal to 5% of the total consolidated assets of the Company and its
Subsidiaries or (ii) total revenue, together with the total revenue of all
of its Subsidiaries, greater than or equal to 5% of the total consolidated
revenue of the Company and its Subsidiaries, all as determined in accordance
with GAAP and (b) REO Holdco; provided that, notwithstanding the
foregoing, any Subsidiary of the Company that (A) provides a Guarantee
Obligation in respect of any of the Existing Notes, the Senior Credit Facility,
the Loans or any Permitted Refinancing Indebtedness or (B) owns any REO
Property or any other North American mortgage loan or real estate interest,
shall in each case be deemed to be a Material Subsidiary (provided that
no Subsidiary that holds solely REO Property other than REO Holdco shall be
deemed to be a Material Subsidiary pursuant to this proviso); and provided
further that, in no event shall the Subsidiaries of the Company
(excluding any Excluded Subsidiaries) that are not Material Subsidiaries or
Guarantors have (X) total assets greater than or equal to 10% of the total
consolidated assets of the Company and its Subsidiaries and (Y) total
revenue greater than or equal to 10% of the total consolidated revenue of the
Company and its 


 


20

















 


Subsidiaries, all as determined in accordance with GAAP (it being
understood that the Company may designate one or more Subsidiaries that would
not otherwise qualify as Material Subsidiaries as Material Subsidiaries in
order to comply with the terms of this proviso).


 


“Mortgage Loan Assets”: the mortgage loan assets (including
mortgage loan assets and mezzanine loans, and in each case, any agreement, note
or instrument evidencing a direct or indirect interest therein, interests in
respect of “new market tax credit” loans, any mortgage loan assets similar to
any of the foregoing, participation interests in any of the foregoing, and any
REO Property, but excluding Excluded Mortgage Loan Assets and mortgage
servicing rights) of the Loan Parties and their respective Subsidiaries (other
than any Specified Excluded Subsidiaries) to the extent relating to real property
located in the United States or Canada.


 


“Non-Loan Party”: any Subsidiary of a Loan Party that is not a
Loan Party.


 


“Non-Performing Mortgage Loan”: any Mortgage Loan Asset
classified as non-performing in accordance with the Loan Parties’ internal procedures,
consistent with past practice.


 


“Notes Cash Basket”: as defined in subsection 6.5.


 


“Permitted Lien”:


 


(a)           Liens for taxes
and other obligations or requirements owing to or imposed by governmental
authorities existing or having priority, as applicable, by operation of law
which in either case (i) are not yet overdue or (ii) are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted so long as appropriate reserves in accordance with GAAP
shall have been made with respect to such taxes or other obligations;


 


(b)           statutory Liens
of banks and other financial institutions (and rights of set-off);


 


(c)           statutory Liens
of landlords, carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law (other than any such Lien imposed
pursuant to Section 430(k) of the Internal Revenue Code or by ERISA),
in each case incurred in the ordinary course of business (i) for amounts
not yet overdue or (ii) for amounts that are overdue and that (in the case
of any such amounts overdue for a period in excess of five days) are being
contested in good faith by appropriate proceedings, so long as such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall have
been made for any such contested amounts;


 


(d)           Liens incurred
in the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security;


 


(e)           Liens, pledges
and deposits to secure the performance of tenders, statutory obligations,
performance and completion bonds, surety bonds, appeal bonds, bids, leases,
licenses, government contracts, trade contracts, performance and
return-of-money bonds and other similar obligations;


 


21
















 


(f)            easements,
rights-of-way, zoning restrictions, licenses, encroachments, restrictions on
use of real property and other similar encumbrances incurred in the ordinary
course of business, in each case that were not incurred in connection with and
do not secure Debt and do not materially and adversely affect the use of the
property encumbered thereby for its intended purposes;


 


(g)           (i) any
interest or title of a lessor under any lease by the Company or any Subsidiary
of the Company and (ii) any leases or subleases by the Company or any
Subsidiary of the Company to another Person(s) incurred in the ordinary
course of business and that do not materially and adversely affect the use of
the property encumbered thereby for its intended purposes;


 


(h)           the filing of
precautionary UCC financing statements relating to leases entered into in the
ordinary course of business and the filing of UCC financing statements by
bailees and consignees in the ordinary course of business;


 


(i)            Liens in favor
of customs and revenue authorities arising as a matter of law to secure payment
of customs duties in connection with the importation of goods;


 


(j)            leases and
subleases or licenses and sublicenses of patents, trademarks and other
intellectual property rights granted by the Company or any of its Subsidiaries
in the ordinary course of business and not interfering in any respect with the
ordinary conduct of the business of the Company or such Subsidiary; and


 


(k)           Liens arising
out of judgments not constituting an Event of Default hereunder.


 


“REO Holdco”: Capmark REO Holding LLC, a Delaware limited
liability company.


 


“REO Property”: (a) real property acquired by the Company
(or any of its Subsidiaries (other than any Specified Subsidiaries)) by
foreclosure, acceptance of a deed-in-lieu of foreclosure, abandonment or
reclamation from bankruptcy in connection with a default in partial or total
satisfaction of a Non-Performing Mortgage Loan and (b) any Equity
Interests in any Person owning property of the type described in the foregoing
clause (a).


 


“Specified Excluded Subsidiaries”: (a) Excluded
Subsidiaries of the type described in clauses (d), (e) or (h) of
the definition thereof; (b) variable interest entities that are required
to be Consolidated with the Company pursuant to FASB Interpretation No. 46(R),
investment partnerships and similar entities that are required to be
Consolidated with the Company pursuant to Emerging Issues Task Force Issue No. 04-5
and entities that are required to be Consolidated with the Company pursuant to Statement
of Financial Accounting Standards No. 66 or similar accounting principles
implemented by applicable accounting standards bodies after the date hereof
relating to consolidation of subsidiaries; and (c) Subsidiaries comprising
investment funds organized in connection with the “low income housing tax
credit program” or “new markets tax credit program” of the Company, or special
purpose entities formed in connection with investment funds managed by the
Company and its Subsidiaries or entities owned by such investment funds.


 


“Surviving Indebtedness”: Indebtedness of the Company and its
Subsidiaries outstanding immediately after giving effect to the Amendment No. 9
Effective Date and the 


 


22

















 


Transactions; provided that, to the extent that such
Indebtedness is Indebtedness For Borrowed Money, such Indebtedness is described
on Schedule 1.01(b).


 


“Synthetic Indebtedness”: 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 non-controlling interest
transactions that function primarily as a borrowing).


 


“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.


 


(b)           The definition of “Affiliate” set forth in subsection
1.1 of the Bridge Loan Agreement is hereby amended and restated in its entirety
to read as follows:


 


“Affiliate”: as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person.  For purposes of this definition,
the term “control” (including the terms “controlling”, “controlled by” and “under
common control with”) of a Person means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of Voting Stock, by contract or
otherwise.


 


(c)           The definition of “Excluded Subsidiary” set forth in
subsection 1.1 of the Bridge Loan Agreement is hereby amended and restated in
its entirety to read as follows:


 


“Excluded Subsidiary”: any Subsidiary of the Company that is: (a) not
a wholly-owned Subsidiary; (b) not a Material Subsidiary; (c) a
Foreign Subsidiary; (d) a Specified Subsidiary; (e) a Bankruptcy
Remote Special Purpose Entity; (f) a CFC; (g) an entity that is
prohibited by any Requirement of Law or Contractual Obligation from providing
any guaranty of the Loan Parties’ Obligations under the Loan Documents; provided
that any such Contractual Obligation (i) shall have been entered into or
incurred prior to the Amendment No. 9 Effective Date (or, in the case of
any Subsidiary formed or acquired by the Company subsequent to the Amendment No. 9
Effective 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; or (h) any Subsidiary which is a broker-dealer registered with
the SEC and applicable state securities commissions in the United States.


 


(d)           The definition of “Indebtedness” set forth in
subsection 1.1 of the Bridge Loan Agreement is hereby amended and restated in
its entirety to read as follows:


 


23

















 


“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:


 


(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 such convertible securities are not evidenced by any of the
foregoing and have put provisions or other similar obligations 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 not overdue by more than 120 days incurred
in the ordinary course of such Person’s 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)           all obligations
of such Person under Capitalized Leases;


 


(f)            all Synthetic
Indebtedness of such Person;


 


(g)           all obligations
of such Person under Hedge Agreements, valued at the Agreement Value thereof;


 


(h)           all mandatory
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in cash in respect of any Equity Interests in such Person or
any other Person or any warrants, rights or options to acquire such Equity
Interests in each case on or prior to the Maturity Date, valued, in the case of
Redeemable Preferred Interests, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;


 


(i)            all Guarantee
Obligations of such Person in respect of any of the foregoing; and


 


(j)            all indebtedness and other payment Obligations
referred to in clauses (a) through (i) above of another Person
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations. 
The amount of any Indebtedness related to this clause (j) shall be
deemed to be equal to the lesser of (i) the amount of such Indebtedness so
secured and (ii) the fair market value of the property subject to such
Lien.


 


Notwithstanding anything to the contrary herein and solely for purposes
of Section 7.1(e), with respect to any Person (other than any Loan Party),
any obligation that is 


 


24

















 


non-recourse to such Person other than to specified assets of such
Person, if in the reasonable judgment of the management of such Person the fair
market value of collateral that would be preserved or protected as a result of
the repayment of such obligation is less than the amount necessary to repay
such obligation, shall not be deemed Indebtedness of such Person.


 


(e)           Subsection 6.3 of the Bridge
Loan Agreement is hereby amended and restated in its entirety to read as
follows:


 


6.3.
Limitation on Liens.  Create, incur,
assume or suffer to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to any of its properties
of any character (including, without limitation, accounts) whether now owned or
hereafter acquired, except:


 


(a)           Liens created under the Loan Documents;


 


(b)           Liens existing on the date
hereof and, to the extent securing Indebtedness For Borrowed Money, described
on Schedule 6.3(b) hereto, and renewals, refinancings or extensions
thereof with respect to any Surviving Indebtedness comprising securitizations
or similar financings of the Loan Parties and their Subsidiaries; provided
that (w) the principal amount of the related Indebtedness shall not be
increased above the principal amount of the Indebtedness being renewed,
refinanced or extended (excluding the amount of any premium paid in respect of
such refinancing, renewal or extension and the amount of reasonable expenses
incurred by the Loan Parties in connection therewith), (x) none of the
Loan Parties or their Subsidiaries shall become a new direct or contingent
obligor, (y) no additional assets shall be transferred to the applicable
special purpose entity and (z) the property covered thereby shall not be
changed;


 


(c)           Permitted Liens;


 


(d)           Liens in connection with
Indebtedness permitted to be incurred pursuant to subsection 6.4(e) so
long as such Liens extend solely to the property (and improvements and proceeds
of such property) acquired or financed with the proceeds of such Indebtedness
or subject to the applicable Capitalized Lease;


 


(e)           any deposit of assets of any
Loan Party 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 such Loan
Party from any judgment or decree against it, or in connection with other
proceedings in actions at law or in equity by or against such Loan Party;


 


(f)            Liens on any assets that are
owned by any Specified Excluded Subsidiary;


 


(g)           Liens securing Indebtedness
relating to Hedge Agreements permitted to be incurred pursuant to subsection
6.4(f) pursuant to agreements existing on the Amendment No. 9
Effective Date or similar agreements not for speculative purposes replacing or
renewing such agreements, whether or not with the same counterparties; provided
that in no event shall initial margin collateral in respect of all such Hedge
Agreements (excluding collateral securing back-to-back hedging arrangements
with any Specified Subsidiary) exceed $100,000,000 in the aggregate;


 


25

















 


(h)           Liens on
Servicing Loan Assets that secure any Servicing Loan Facility permitted under
subsection 6.4(i);


 


(i)            Liens securing
Indebtedness (other than Indebtedness For Borrowed Money or Indebtedness in
respect of Hedge Agreements) on assets with a fair market value at any time
after the Amendment No. 9 Effective Date not to exceed $200,000,000 to the
extent that such Liens are incurred in the ordinary course of business of the
Company and its Subsidiaries consistent with past practice;


 


(j)            Liens required by agreements
with Government Related Enterprises in the ordinary course of business of the
Company and its Subsidiaries consistent with past practice;


 


(k)           Liens to secure any
Permitted Refinancing Indebtedness; provided that no such Lien shall
extend to or cover any Servicing Loan Assets; and


 


(1)           other Liens
securing Indebtedness outstanding in an aggregate principal amount not to
exceed $5,000,000; provided that no such Lien shall extend to or cover
any Servicing Loan Assets.


 


(f)            Subsection 6.4 of the Bridge
Loan Agreement is hereby amended and restated in its entirety to read as
follows:


 


6.4.
Indebtedness.  Contract, create,
incur, assume or suffer to exist any Indebtedness, or permit any of its
Subsidiaries to contract, create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)           Indebtedness under this
Agreement and the other Loan Documents;


 


(b)           the Surviving Indebtedness
and (x) solely with respect to any Surviving Indebtedness other than as
described in clause (y) below, any Indebtedness extending the maturity of,
or refunding or refinancing, in whole or in part, such Surviving Indebtedness,
in each case upon the maturity of such Surviving Indebtedness; provided
that the 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, no assets shall be added as collateral and
no additional direct or indirect credit support shall be added therefor, and
the direct and contingent obligors therefor shall not be changed, as a result
of or in connection with such extension, refunding or refinancing; and provided
further that the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material
terms taken as a whole, of any such extending, refunding or refinancing
Indebtedness, and of any agreement entered into and of any instrument issued in
connection therewith, are no less favorable in any material respect to the Loan
Parties or the Lenders than the terms of any agreement or instrument governing
the Surviving Indebtedness being extended, refunded or refinanced and the
interest rate applicable to any such extending, refunding or refinancing
Indebtedness does not exceed the then applicable market interest rate for
similar type of Indebtedness and (y) solely with respect to the Existing
Notes, the Senior Credit Facility and the Loans, any Permitted Refinancing
Indebtedness in respect thereof;


 


26

















 


(c)           Indebtedness arising from
Investments among the Company and its Subsidiaries that are permitted
hereunder;


 


(d)           Indebtedness in respect of
netting services, customary overdraft protections and otherwise in connection
with deposit accounts in the ordinary course of business;


 


(e)           Indebtedness constituting
purchase money debt and Capitalized Lease obligations (not otherwise included
in subclause (b) above) in an aggregate outstanding amount not in excess
of $5,000,000;


 


(f)            Indebtedness in respect of
Hedge Agreements under the hedging program described on Schedule 6.4(e);


 


(g)           Indebtedness which may be
deemed to exist pursuant to any surety bonds, appeal bonds or similar
obligations incurred in connection with any judgment not constituting an Event
of Default;


 


(h)           Indebtedness consisting of
the financing of insurance premiums in each case, in the ordinary course of
business;


 


(i)            Indebtedness in respect of
one or more Servicing Loan Facilities, the aggregate outstanding principal
amount of which shall not exceed $900,000,000;


 


(j)            Indebtedness secured by
Liens permitted by subsection 6.3(f);


 


(k)           Indebtedness incurred by any
Specified Excluded Subsidiary and Indebtedness of the Company arising under any
capital maintenance or support agreement relating to any Specified Subsidiary;


 


(l)            to the extent constituting
Indebtedness, any undertaking of the Company and its Subsidiaries to maintain
capital requirements in accordance with any applicable law or regulation, the
requirements of any Government Related Enterprise or any order of, or agreement
entered into with, any governmental or regulatory authority;


 


(m)          the carrying value of
Indebtedness (other than Indebtedness For Borrowed Money or Indebtedness in
respect of Hedge Agreements or Indebtedness not otherwise permitted hereunder)
outstanding in an aggregate principal amount not to exceed $200,000,000 to the
extent that such Indebtedness is incurred in the ordinary course of business of
the Company and its Subsidiaries consistent with past practice (with the “carrying
value” being determined in a manner consistent with the carrying value of
Indebtedness as reflected on the Company’s financial statements delivered
pursuant to subsection 5.1(a) and (b));


 


(n)           Guarantee Obligations of any
Guarantor in respect of Surviving Indebtedness (including Indebtedness under
the Senior Credit Facility, this Agreement and the Existing Notes) to the
extent that such Guarantee Obligations are required pursuant to the terms of
agreements in respect of such Surviving Indebtedness existing on the date
hereof; and


 


27

















 


(o)           Indebtedness not otherwise
permitted hereunder in an aggregate outstanding principal amount of $5,000,000.


 


(g)           Section 6 of the Bridge
Loan Agreement is hereby amended by inserting the following new subsections
6.5, 6.6, 6.7 and 6.8 after subsection 6.4 in numerical order:


 


6.5  Prepayments, Amendments, Etc. of
Indebtedness.  (a) Prepay,
redeem, purchase, repurchase, exchange, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner, or make any payment in violation
of any subordination terms of, any Indebtedness For Borrowed Money (other than
intercompany Indebtedness owed to the Company or any Subsidiary of the
Company), except (i) regularly scheduled or required repayments or
redemptions of Surviving Indebtedness and (ii) the prepayment or repayment
of the loans under the Senior Credit Facility and the Loans, or (b) amend,
modify or change in any manner any term or condition of any Indebtedness or
permit any of its Subsidiaries to do any of the foregoing other than to prepay
any Indebtedness payable to the Company; provided that so long as no
Default shall have occurred and be continuing, (A) if the Liquidity
Condition is satisfied immediately prior to any such prepayment, redemption or
purchase, the Company may use up to $150,000,000 in the aggregate (the “Notes
Cash Basket”) to prepay, redeem or purchase the Existing Notes prior to the
scheduled maturity thereof, (B) the Company may prepay, redeem or purchase
the Existing Notes prior to the scheduled maturity thereof to the extent that
such prepayment, redemption or purchase constitutes a Permitted Notes
Refinancing and (C) the Company may redeem or purchase Indebtedness under
the Senior Credit Facility pursuant to Section 2.27 thereof and hereunder
pursuant to Section 2.19.


 


6.6. Dividends; Capital Stock.  Declare or pay any dividends, purchase,
repurchase, redeem, retire, defease or otherwise acquire for value any of its
Equity Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as such,
make any distribution of assets, Equity Interests, obligations or securities to
its stockholders, partners or members (or the equivalent Persons thereof) as
such, or permit any of its Subsidiaries to do any of the foregoing, or permit
any of its Subsidiaries to purchase, repurchase, redeem, retire, defease or
otherwise acquire for value any Equity Interests in such Loan Party, any other
Loan Party or any direct or indirect Subsidiaries thereof (collectively, “Restricted
Payments”), except that:


 


(a)           to the extent constituting
Restricted Payments, a Loan Party may enter into and consummate any transactions
permitted under subsection 6.7;


 


(b)           to the extent constituting
Restricted Payments, a Loan Party may make repurchases of Equity Interests from
employees, former employees, directors or former directors pursuant to
mandatory repurchase plans upon the death or disability of such persons, in
each case in amounts not to exceed the fair market value of the Equity
Interests so repurchased;


 


(c)           to the extent constituting
Restricted Payments, a Loan Party may pay customary investment banking fees to
national investment banks that are Affiliates of its stockholders, partners or
members on an arm’s-length basis in order to consummate any capital markets
financing transactions;


 


28

















 


(d)           to the extent constituting
Restricted Payments, a Loan Party may pay dividends to permit the Company to
pay any taxes that are due and payable by the Company and the Loan Party as
part of the Consolidated group;


 


(e)           any Loan Party (other than
the Company) or any of its Subsidiaries may make Restricted Payments to any
other Loan Party or any of its Subsidiaries; and


 


(f)            repurchases of Equity
Interests in the ordinary course of business in the Company (or any direct or
indirect parent thereof) or any of its Subsidiaries deemed to occur upon
exercise of stock options or warrants if such Equity Interests represent a
portion of the exercise price of such options or warrants.


 


6.7.
Transactions with Affiliates. 
Enter into or permit any of its Subsidiaries to enter into any transaction
with any of its Affiliates, other than on terms and conditions at least as
favorable to such Loan Party or such Subsidiary as would reasonably be obtained
at that time in a comparable arm’s-length transaction with a Person other than
an Affiliate, except for the following: (i) any transaction between any
Loan Party and any other Loan Party or between any Non-Loan Party and any other
Non-Loan Party; (ii) any transaction between any Loan Party and any
Non-Loan Party (other than any Specified Subsidiary) that is, together with all
such transactions between such Loan Party and such Non-Loan Party taken as a
whole, at least as favorable to such Loan Party as would reasonably be obtained
at that time in a comparable arm’s-length transaction with a Person other than
an Affiliate; (iii) any transaction between the Company or any of its
Subsidiaries and any Specified Subsidiary entered into in the ordinary course
of business of the Company and its Subsidiaries consistent with past practice; (iv) any
transaction individually or of a type expressly permitted pursuant to the terms
of the Loan Documents; (v) reasonable and customary director, officer and
employee compensation (including, without limitation, incentive compensation)
and other benefits (including retirement, health, stock option and other
benefit plans) and indemnification arrangements; (vi) transactions of the
type in existence on the Amendment No. 9 Effective Date and set forth on
Schedule II and any renewal or replacement thereof on substantially identical
terms; or (vii) transactions entered into in connection with any Servicing
Loan Facility.


 


6.8.  Other Payments.  Without limitation to the other provisions of
this Section 6 and other than as set forth in subsection 6.6(b) or
(c)), make, or permit any of its Subsidiaries to make, any payments to any
direct or indirect holders of Equity Interests in the Company in respect of
such Equity Interests in the Company in any form whatsoever, whether through
management or similar fees, dividends, distributions, repurchases of Equity
Interests or otherwise.


 


(h)           Subsection 7.1(e) of the Bridge Loan
Agreement is hereby amended by inserting “or any Specified Excluded Subsidiary
of the type described in clauses (b) and (c) of the definition
thereof” after the word “Entity” in the second line thereof.


 


(i)            The Bridge Loan Agreement is hereby
amended by inserting Schedule II, Schedule 1.01(d), Schedule 5.02(a) and
Schedule 6.4(e) set forth on Annex C hereto.


 


SECTION 3.           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:


 


29

















 


(a)           the Agent shall have received counterparts of this Amendment
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;


 


(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 (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 (iii) certify that, as of the date of such certificate
(which shall not be earlier than the date hereof), none of such resolutions
shall have been amended, supplemented, modified, revoked or rescinded;


 


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


 


(d)           Capmark Affordable Equity Holdings Inc., Summit Crest
Ventures, LLC and Capmark REO Holding LLC have executed and delivered a
Guaranty Supplement;


 


(e)           the Agent shall have received satisfactory evidence that the
Transactions, the Term Loan Agreement and the amendments to the Senior Credit
Facility (the “Amendment No. 3 and Waiver to the Senior Credit Facility”)
have become effective in accordance with their respective terms and, in each
case, are in form and substance reasonably satisfactory to the Lenders;


 


(f)            the Agent shall have received (i) an amendment fee for
the account of each Extending Lender that has executed and delivered a
signature page to this Amendment in an amount equal to 0.25% of the
aggregate principal amount of such Extending Lender’s Loans immediately prior
to the consummation of the Transactions and (ii) an additional fee equal
to each Extending Lender’s pro rata share of $8,400,000, which pro rata share
shall be equal to a fraction the numerator of which shall be such  the aggregate of such Extending Lender’s
outstanding Loans under the Bridge Loan Agreement immediately prior to the consummation
of the Transactions and the outstanding loans under the Senior Credit Facility
immediately prior to the consummation of the Transactions and the denominator
of which shall be the aggregate of the outstanding Loans of all Extending
Lenders under the Bridge Loan Agreement immediately prior to the consummation
of the Transactions and the outstanding loans of all lenders under the Senior
Credit Facility that enter into Amendment No. 3 and Waiver to the Senior
Credit Facility immediately prior to the consummation of the Transactions; and


 


(g)           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 4.           CONFIRMATION OF REPRESENTATIONS AND
WARRANTIES


 


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.


 


30

















 


SECTION 5.           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 6.           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 7.           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.


 


SECTION 8.           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”
or similar format by electronic mail shall be effective as delivery of a
manually executed counterpart of this Amendment.


 


SECTION 9.           GOVERNING LAW


 


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


 


31
















 


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

  



 


CAPMARK Bridge Loan
Agreement - Amendment No. 9


Signature Page


 

















 


	
   

  	
  Citicorp North America
  Inc.,  

  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael M. Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael M. Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


CAPMARK Bridge Loan
Agreement - Amendment No. 9


Signature Page


 

















 


	
   

  	
  Goldman Sachs Credit
  Partners L.P.,  

  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caroline Benton

  
	
   

  	
   

  	
  Name:

  	
  Caroline Benton

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


CAPMARK Bridge Loan
Agreement - Amendment No. 9


Signature Page


 

















 


	
   

  	
  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/ James Rolison

  
	
   

  	
   

  	
  Name:

  	
  James Rolison

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


CAPMARK Bridge Loan
Agreement - Amendment No. 9


Signature Page


 

















 


	
   

  	
  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

  



 


CAPMARK Bridge Loan
Agreement - Amendment No. 9


Signature Page


 
















 


	
   

  	
   

  	
  The Royal Bank of Scotland
  plc,

  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Timothy J. McNaught

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Timothy J. McNaught

  
	
   

  	
   

  	
   

  	
  Title:  

  	
  Managing Director

  



 


CAPMARK
Bridge Loan Agreement - Amendment No. 9


Signature Page


 

















 


	
   

  	
   

  	
  JP Morgan Chase Bank NA,

  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John J. Coffey

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  John J. Coffey

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  Managing Director

  



 


CAPMARK
Bridge Loan Agreement - Amendment No. 9


Signature Page


 

















 


	
   

  	
   

  	
  Credit Suisse, Cayman
  Islands Branch,

  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Didier Siffer

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Didier Siffer

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Bryan Matthews

  
	
   

  	
   

  	
   

  	
  Name: 

  	
  Bryan Matthews

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  Director

  



 


CAPMARK
Bridge Loan Agreement - Amendment No. 9


Signature
Page


 

















 


Acknowledged:


 


 


	
  CITICORP NORTH AMERICA,
  INC., 

  as the Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Michael M. Schadt

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Michael M. Schadt

  	
   

  	
   

  
	
   

  	
  Title:  

  	
  Director

  	
   

  	
   

  



 


CAPMARK
Bridge Loan Agreement - Amendment No. 9


Signature Page


 

















 


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 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. 9
and Waiver to the Bridge Loan Agreement dated as of May [29], 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. 9, 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. 9 (in each case, as defined therein).


 


[The remainder of
this page intentionally left blank]


 


CAPMARK
Bridge Loan Agreement - Amendment No. 9


Guarantor Consent


 
















 


	
   

  	
  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

  
	
   

  	
   

  	
   

  	
   

  



 


CAPMARK Bridge Loan Agreement - Amendment No. 9


Guarantor Consent


 

















 


	
   

  	
  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

  



 


CAPMARK Bridge Loan Agreement - Amendment No. 9


Guarantor Consent


 

















 


	
   

  	
  CAPMARK AFFORDABLE EQUITY
  HOLDINGS INC., as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  



 


CAPMARK Bridge Loan Agreement - Amendment No. 9


Guarantor Consent


 

















 


 


	
   

  	
  SUMMIT CREST VENTURES LLC,
  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter A. Widmann

  
	
   

  	
   

  	
  Name:

  	
  Peter A. Widmann

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


CAPMARK Bridge Loan Agreement - Amendment No. 9


Guarantor Consent


 

















 


 


	
   

  	
  CAPMARK REO HOLDING LLC,
  as a Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul W. Kopsky, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Paul W. Kopsky Jr.

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


CAPMARK Bridge Loan Agreement - Amendment No. 9


Guarantor Consent