Exhibit 10.4


 


EXECUTION COPY


 


AMENDMENT NO. 
3 AND WAIVER TO THE CREDIT AGREEMENT


 


Dated as of May 29, 2009


 


AMENDMENT
NO. 3 AND WAIVER TO THE CREDIT AGREEMENT (this “Amendment”)
among Capmark Financial Group Inc., a Nevada corporation (the “Company”),
the subsidiary borrowers party thereto (together with the Company, the “Borrowers”),
the financial institutions and other institutional lenders party hereto, and
Citibank, N.A., as administrative agent (the “Agent”) for the Lenders.


 


RECITALS:


 


(1)           The Borrowers, the financial institutions and other
institutional lenders party thereto (the “Lenders”), the Agent and the
other agents party thereto have entered into that certain Credit Agreement,
dated as of March 23, 2006, as amended by Amendment No. 1 to the Credit
Agreement, dated as of April 17, 2007, Amendment No. 2 to the Credit
Agreement, dated as of June 30, 2008, Waiver to the Credit Agreement,
dated as of April 20, 2009, Waiver No. 2 to the Credit Agreement,
dated as of May 8, 2009  and
Waiver No. 3 to the Credit Agreement, dated as of May 21, 2009 (as
further amended, supplemented or otherwise modified, the “Credit Agreement”).  Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit 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, Citicorp North America, Inc., 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 $46,875,000 of outstanding loans
under the Facilities and (b) proceeds under the Term Loan Agreement to
permanently prepay in cash not less than (i) $937,500,000 of outstanding
Loans under the Facilities (the “Prepayment”) and (ii) $562,500,000
of outstanding loans under the Bridge Facility (the foregoing transactions
collectively referred to herein as the “Transactions”).


 


(3)           The Borrowers have requested that the Lenders agree
to amend certain provisions of the Credit Agreement as hereinafter set forth.


 


(4)           Pursuant to subsection 10.1(a) of the Credit
Agreement, the Majority Lenders may, or, with the written consent of the
Majority Lenders, the Agent may, from time to time, enter into with the
Borrowers, written amendments, supplements or modifications to the Credit
Agreement for the purpose of adding any provisions to the Credit Agreement or
changing in any manner the rights of the Lenders or of the Borrowers under the
Credit Agreement.


 


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


 

















 


SECTION 1.           AMENDMENTS TO
CREDIT AGREEMENT


 


The Credit 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 Credit 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. 3”:
Amendment No. 3 and Waiver to the Credit Agreement, dated as of May 29,
2009, among the Borrowers, the Lenders party thereto and the Agent.


 


2

















 


“Amendment
No. 3 Effective Date”: the date of effectiveness of Amendment No. 3
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 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. 3.


 


“Auction”:
a “Dutch” auction whereby the Company offers to purchase Loans pursuant to the
auction procedures set forth in Exhibit A to Amendment No. 3.


 


“Cash
Prepayment Amount”: as defined in Section 2.18(d).


 


“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 10.7(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.


 


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“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. 3 Effective Date.


 


“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.


 


“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.


 


“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 hereunder, the Facilities or (y) is 


 


4

















 


accepted by any lenders under the Bridge Facility to refinance, refund,
exchange or replace the loans under the Bridge Facility, the loans under the
Bridge 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 Bridge Facility shall be offered,
on a proportionate basis in accordance with the provisions of this Agreement
and the Bridge 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 Bridge Facility (i) need not include any cash payment to
the Lenders hereunder or the lenders under the Bridge 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 Bridge 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
Bridge Facility, provided that any such cash payment to the Lenders hereunder
or the lenders under the Bridge 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. 3.


 


“Qualifying Lender”: as defined in Exhibit A
to Amendment No. 3.


 


“Reply Amount”: as defined in Exhibit A
to Amendment No. 3.


 


“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 


 


5

















 


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 Bridge 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 Bridge 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 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 


 


6

















 


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.


 


“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. 3 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 2.26.


 


“Term Loan Agreement”: as defined in Amendment No. 3.


 


“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 Credit 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 Credit 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 


 


7

















 


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 “Canadian Revolving Credit Facility”
set forth in subsection 1.1 of the Credit Agreement is hereby amended by
deleting the word “Commitments” in the third line thereof and inserting the
word “Loans” in its place.


 


(e)           The definition of “Canadian Revolving Credit Lender”
set forth in subsection 1.1 of the Credit Agreement is hereby amended by
deleting the word “Commitment” in the second line thereof and inserting the
word “Loan” in its place.


 


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


 


“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 


 


8

















 


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).


 


(g)           The definition of “Commitment Period” in subsection
1.1 of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:


 


“Commitment
Period”:  the period from and
including the date hereof to but not including the Amendment No. 3
Effective Date or such earlier date on which the Commitments shall terminate as
provided herein.


 


(h)           The definition of “ERISA Event” set forth in
subsection 1.1 of the Credit 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 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.


 


(i)            The definition of “EURIBO Rate” set forth in
subsection 1.1 of the Credit Agreement is hereby amended by inserting “the
higher of (a) 1.50% per annum and (b)” immediately after the phrase “for
any Interest Period,”.


 


(j)            The definition of “Eurocurrency Rate” set forth in
subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“Eurocurrency Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, the higher of (a) 1.5% per annum
and (b)(i) in the case of any Eurocurrency Loans denominated in Dollars or
any Available Foreign Currency (other than Euros), the rate of interest
determined on the basis of the rate for deposits in Dollars 


 


9

















 


or such Available Foreign Currency 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 or (ii) in
the case of any Eurocurrency Loans denominated in Euros, the EURIBO Rate.  In the event that such rate described in
clause (b)(i) above does not appear on Reuters Screen LIBOR01 (or
otherwise on such service), the rate determined pursuant to clause (b)(i) 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)(i) 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 Eurocurrency
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 Eurocurrency Loan to be outstanding during such Interest
Period.


 


(k)           The definition of “GAAP” set forth in subsection 1.1 of the
Credit 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.


 


(l)            The definition of “Guarantee” set forth in the
subsection 1.1 of the Credit 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.


 


(m)          The definition of “Hedge Agreement” set forth in subsection
1.1 of the Credit 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 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.


 


(n)           The definition of “Irish Revolving Credit Facility”
set forth in subsection 1.1 of the Credit Agreement is hereby amended by
deleting the word “Commitments” in the second line thereof and inserting the
word “Loans” in its place.


 


(o)           The definition of “Irish Revolving Credit Lender” set
forth in subsection 1.1 of the Credit Agreement is hereby amended by deleting
the word “Commitment” in the second line thereof and inserting the word “Loan”
in its place.


 


10
















 


(p)           The definition of “Japanese Revolving Credit Facility”
set forth in subsection 1.1 of the Credit Agreement is hereby amended by
deleting the word “Commitments” in the third line thereof and inserting the
word “Loans” in its place.


 


(q)           The definition of “Japanese Revolving Credit Lender”
set forth in subsection 1.1 of the Credit Agreement is hereby amended by
deleting the word “Commitment” in the second line thereof and inserting the
word “Loan in its place”.


 


(r)            The definition of “Material Adverse Effect” set forth
in subsection 1.1 of the Credit 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.


 


(s)           The definition of “Revolving
Credit Lender” set forth in subsection 1.1 of the Credit Agreement is
hereby amended by deleting the word “Commitment” therein and inserting the word
“Loan” in its place.


 


(t)            The definition of “Specified
Subsidiaries” set forth in subsection 1.1 of the Credit 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.


 


(u)           The definition of “Termination Date” set forth in
subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“Termination
Date”: with respect to any Loans and Commitments on the Amendment No. 3
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.


 


(v)           The definition of “US
Revolving Credit Facility” set forth in subsection 1.1 of the Credit
Agreement is hereby amended by deleting the word “Commitments” in the second
line thereof and inserting the word “Loans” in its place.


 


(w)          The definition of “US
Revolving Credit Lender” set forth in subsection 1.1 of the Credit
Agreement is hereby amended by deleting the word “Commitment” therein and
inserting the word “Loan” in its place.


 


(x)            The first sentence of
subsection 2.1(b) of the Credit Agreement is hereby amended by inserting
the phrase “and until the Amendment No. 3 Effective Date” immediately
after “2007” in the second line therein.


 


(y)           The first sentence of
subsection 2.1(c) of the Credit Agreement is hereby amended by deleting “30
days before the Termination Date” in the fourth and fifth lines therein and
inserting “Amendment No. 3 Effective Date” in its place.


 


11

















 


(z)            The second sentence of
subsection 2.6(a) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:


 


Amounts borrowed by the US Revolving Credit
Borrowers under this subsection 2.6 may be repaid and, to but excluding the
Amendment No. 3 Effective Date, reborrowed.


 


(aa)         The third sentence of
subsection 2.7(a) of the Credit Agreement is hereby and restated in its
entirety to read as follows:


 


Amounts borrowed by any Japanese Borrower under this subsection 2.7 may
be repaid and, to but excluding the Amendment No. 3 Effective Date,
reborrowed.


 


(bb)         Subsection 2.9(b) of
the Credit Agreement is hereby amended by adding the following at the end
thereof:


 


The aggregate Revolving Credit Commitments under each Revolving Credit Facility
shall be automatically and permanently reduced to zero on the Amendment No. 3
Effective Date.   The aggregate Letter of
Credit Commitments under the Letter of Credit Facility shall be automatically
and permanently reduced to zero on the Amendment No. 3 Effective
Date.  The aggregate Irish Swing Line
Commitments, the Swing Line Commitments and the Yen Swing Line Commitments and
the Yen Overdraft Swing Line Commitments shall be automatically and permanently
reduced to zero on the Amendment No. 3 Effective Date.


 


(cc)         Subsection 2.10(f) of
the Credit Agreement is hereby deleted in its entirety.


 


(dd)         Subsection 2.10 of the
Credit 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 Bridge
Facility and (y) any prepayments pursuant to this subsection 2.10(a) shall
be applied ratably to the outstanding principal amount of the Loans then owing
to the Lenders.


 


(ee)         Subsection 2.10(d) of
the Credit Agreement is hereby amended by deleting (i) “Commitments under
such Facility as then in effect” in the seventh line thereof and inserting “Loans
under such Facility as of the Amendment No. 3 Effective Date” in its place
and (ii) the word “Commitments” in the twelfth line thereof and inserting “Loans
under such Facility as of the Amendment No. 3 Effective Date” in its
place.


 


(ff)           Subsection 2.10 of the
Credit Agreement is hereby amended by inserting the following new clause (g) after
clause (f) therein:


 


(g)           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 62.5% 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 10.7) and (2) the first $200,000,000 of the Net
Cash Proceeds from any Servicing Loan Facility (other than the 


 


12

















 


Specified Servicing Loan Facility) by a Loan
Party or any of its Subsidiaries, prepay the Loans in an amount equal to 62.5%
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
10.7); provided that in no event shall the aggregate Net Cash Proceeds
to be applied hereunder and under the Bridge Facility exceed $100,000,000.


 


(gg)         Subsection 2.18 of the
Credit Agreement is hereby amended by inserting the following new clause (d) after
clause (c) therein:


 


(d)           Notwithstanding anything
contained in subsections 2.18(a) or 10.8 to the contrary, (i) on the
Amendment No. 3 Effective Date, cash in an amount equal to not less than
$46,875,000 (the “Cash Prepayment Amount”) and the Prepayment shall be
applied ratably to permanently prepay the outstanding Loans of the Initial
Prepayment Lenders (the ratable amount of the Prepayment and the Cash
Prepayment Amount that is allocated to an Initial Prepayment Lender shall be
applied to the Loans of such Initial Prepayment Lender as set forth on Schedule
I hereto), (ii) each non-ratable redemption or purchase of Loans by the
Company pursuant to subsection 2.27 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 2.28 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.


 


(hh)         Section 2 of the Credit
Agreement is hereby amended by inserting the following new subsections 2.26,
2.27 and 2.28 in numerical order at the end thereof:


 


2.26.  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.


 


2.27.  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 Bridge 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 


 


13

















 


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 2.10, 2.18 or 10.8.


 


2.28.
 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 Bridge 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.


 


(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
Loan Amount”), it being understood that the aggregate principal amount of
the Loans that 


 


14

















 


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 Loan Amount, the Agent and the
Company shall allocate the Refinanced 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 Bridge
Facility that lenders under the Bridge 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 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 Loan Amount for
such Lender and the denominator of which is the Aggregate Requested Refinanced
Indebtedness Amount.


 


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


 


(jj)           Subsection 5.1 of the Credit
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 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 


 


15

















 


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 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 


 


16

















 


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).


 


(kk)         Subsection 5.2 of the Credit
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 Bridge 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;


 


(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 


 


17

















 


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


 


(ll)           Subsection 6.1 of the Credit
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:


 


18

















 


	
  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.


 


(mm)       Subsection 6.3 of the Credit
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.


 


(nn)         Subsection 6.4 of the Credit
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
Facilities and the Bridge Facility, any Permitted Refinancing Indebtedness in
respect thereof.


 


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


 


(pp)         Subsection 7.1(e) of
the Credit 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 Bridge 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 


 


19

















 


cause,
or to permit the holders thereof to cause, such Indebtedness to come due prior
to its stated maturity.


 


(qq)         Subsection 10.7 of the
Credit Agreement is hereby amended by inserting the following new 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 2.27, 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 2.27, 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.


 


(rr)           Subsection 10.8 of the
Credit Agreement is hereby amended by inserting the following new sentence at
the end thereof:


 


Notwithstanding
the foregoing, the provisions of this subsection 10.8 shall not apply to any
payment received by any Lender in accordance with subsections 2.27 and 2.28.


 


(ss)         The Credit Agreement is
hereby amended by inserting Schedule 1.01(c) set forth on Annex B
hereto.


 


(tt)           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 Credit Agreement, the
Total Consolidated Indebtedness at the last day of each of the fiscal quarters
ended December 31, 2008 and March 31, 2009 to Total Capitalization at
such dates at a ratio not greater than 0.87 to 1.0, in each case without giving
effect to ARB51, FIN 46(R) or FAS 66 in each case in relation to the
Company’s affordable tax credit syndication business.  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 Credit Agreement or to establish 


 


20

















 


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 Credit Agreement, the other Loan Agreements and applicable
law.


 


(uu)         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 2.22(a) and (ii)(A) any prepayment notice otherwise
required by subsection 2.10 and (B) any time period by which a notice of
Borrowing is required to be delivered pursuant to subsection 2.4, in each case
in connection with the Transactions.


 


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


 


SECTION 2.           ADDITIONAL
AMENDMENTS.


 


The Credit 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 Credit
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 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 


 


21

















 


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 Bridge 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 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.


 


22
















 


“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;


 


(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;


 


23

















 


(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. 3
Effective Date and the 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).


 


24

















 


“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 Credit 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 Credit 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. 3 Effective Date (or, in the case of
any Subsidiary formed or acquired by the Company subsequent to the Amendment No. 3
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 Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“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;


 


25

















 


(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 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 Credit 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:


 


26

















 


(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. 3
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;


 


(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. 3 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;


 


27

















 


(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 Credit 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 Bridge Facility and the Loans, any Permitted Refinancing
Indebtedness in respect thereof;


 


(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;


 


28

















 


(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 Bridge 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


 


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


 


(g)                               Section 6
of the Credit 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 


 


29

















 


repayment
of the loans under the Bridge 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 hereunder pursuant
to subsection 2.27 and under the Bridge Facility pursuant to subsection 2.19
thereof.


 


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;


 


(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.


 


30

















 


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. 3
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 Credit
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 Credit 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:


 


(a)                                   the Agent shall have received counterparts of this
Amendment executed by the Company, the Majority Lenders, and/or, as to any such
Majority Lender 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 Borrowers, in form and substance satisfactory to
the Agent, which certificate shall (i) certify as to the incumbency and
signature of the officers of the Borrowers 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 each Borrower,
which resolutions shall authorize the execution, delivery and performance of
this Amendment, and (iii) certify that, as of the date 


 


31

















 


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 Bridge Facility
(the “Amendment No. 9 and Waiver to the Bridge 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 Lender that has executed and delivered a signature page to
this Amendment (each, a “Consenting Lender” and, collectively, the “Consenting
Lenders”) in an amount equal to 0.25% of the aggregate principal amount of
such Consenting Lender’s Loans immediately prior to the consummation of the
Transactions and (ii) an additional fee equal to each Consenting 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 the aggregate of such Consenting Lender’s
outstanding Loans under the Credit Agreement immediately prior to the
consummation of the Transactions and outstanding loans under the Bridge
Facility immediately prior to the consummation of the Transactions and the
denominator of which shall be the aggregate of the outstanding Loans under the
Credit Agreement of all Consenting Lenders immediately prior to the
consummation of the Transactions and the outstanding loans of all lenders under
the Bridge Facility immediately prior to the consummation of the Transactions
that enter into Amendment No. 9 and Waiver to the Bridge Facility; 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


 


(a)                                  The Company hereby represents and warrants, on and as of the
date hereof, that the representations and warranties contained in the Credit
Agreement (to the extent relating to 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.


 


SECTION 5.                                AFFIRMATION OF THE COMPANY


 


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


 


SECTION 6.                                REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS


 


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


 


32

















 


Agreement”, “thereunder”, “thereof”
or words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment.


 


(b)                                 The Credit 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 Credit Agreement or
any other Loan Document, nor constitute a waiver of any provision of the Credit
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 10.5 of the Credit
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.


 


33
















 


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

  



 


Signature Page


 

















 


	
   

  	
  CAPMARK CANADA LIMITED,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael I. Lipson

  
	
   

  	
   

  	
  Name:

  	
  Michael I. Lipson

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPMARK BANK EUROPE, PUBLIC LIMITED
  COMPANY,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin Thornton

  
	
   

  	
   

  	
  Name:

  	
  Martin Thornton

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPMARK EI IRELAND LIMITED,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin Thornton

  
	
   

  	
   

  	
  Name:

  	
  Martin Thornton

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPMARK IRELAND LIMITED,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin Thornton

  
	
   

  	
   

  	
  Name:

  	
  Martin Thornton

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  



 


Signature Page


 

















 


	
   

  	
  CAPMARK AB NO. 2 LIMITED,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Martin Thornton

  
	
   

  	
   

  	
  Name:

  	
  Martin Thornton

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPMARK FINANCE INC.,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SJM CAP, LLC,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPMARK BANK,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven J. Nielsen

  
	
   

  	
   

  	
  Name:

  	
  Steven J. Nielsen

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPMARK FUNDING JAPAN, K.K.,

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Allen Todd Atchley

  
	
   

  	
   

  	
  Name:

  	
  Allen Todd Atchley

  
	
   

  	
   

  	
  Title:

  	
  Representative Director

  



 


Signature Page


 

















 


	
   

  	
  CAPMARK JAPAN, K.K.,  

  
	
   

  	
  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Katsuyoshi Dobashi

  
	
   

  	
   

  	
  Name:

  	
  Katsuyoshi Dobashi

  
	
   

  	
   

  	
  Title:

  	
  Representative Director

  



 


Signature Page


 

















 


	
  CITIBANK, N.A., 

  	
   

  
	
  as Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Michael M. Schadt

  	
   

  
	
   

  	
  Name:

  	
  Michael M. Schadt

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  



 


Signature Page


 

















 


	
   

  	
  Citibank, N.A.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  o US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael M. Schadt

  
	
   

  	
   

  	
  Name:

  	
  Michael M. Schadt

  
	
   

  	
   

  	
  Title:

  	
  Director 

  



 


Majority
Lender Signature Page


 

















 


	
   

  	
  GoldenTree Master Fund II, Ltd.

  
	
   

  	
  By: GoldenTree Asset Management, LP

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  x Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  o US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen Weber

  
	
   

  	
   

  	
  Name:

  	
  Karen Weber

  
	
   

  	
   

  	
  Title:

  	
  Director - Bank Debt

  



 


Signature Page


 

















 


	
   

  	
  GoldenTree Asset Management Lux Sarl

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  x Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  o US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen Weber

  
	
   

  	
   

  	
  Name:

  	
  Karen Weber

  
	
   

  	
   

  	
  Title:

  	
  Director - Bank Debt

  



 


Signature Page


 

















 


	
   

  	
  GoldenTree Master Fund, Ltd

  
	
   

  	
  By:GoldenTree Asset Management, LP

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  x Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  o US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen Weber

  
	
   

  	
   

  	
  Name:

  	
  Karen Weber

  
	
   

  	
   

  	
  Title:

  	
  Director - Bank Debt

  



 


Signature Page


 

















 


	
   

  	
  GoldenTree Leverage Loan Financing I,
  Limited

  
	
   

  	
  By:GoldenTree Leverage Loan Manager LLC

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen Weber

  
	
   

  	
   

  	
  Name:

  	
  Karen Weber

  
	
   

  	
   

  	
  Title:

  	
  Director - Bank Debt

  



 


Signature Page


 
















 


	
   

  	
  GoldenTree Credit
  Opportunities Financing I, Limited

  
	
   

  	
  By:GoldenTree Asset
  Management, LP

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karen Weber

  
	
   

  	
   

  	
  Name:

  	
  Karen Weber

  
	
   

  	
   

  	
  Title:

  	
  Director - Bank Debt

  



 


Signature Page


 

















 


	
   

  	
  Hua Nan Commercial Bank,
  Ltd.

  
	
   

  	
  New York Agency

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Henry Hsieh

  
	
   

  	
   

  	
  Name:

  	
  Henry Hsieh

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice President

  



 


Signature Page


 

















 


	
   

  	
  Silver Oak Capital, LLC,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas M. Fuller

  
	
   

  	
   

  	
  Name:

  	
  Thomas M. Fuller

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  Knighthead Master Fund,
  L.P.

  
	
   

  	
  By: Knighthead Capital
  Management, L.L.C.

  
	
   

  	
  Its Investment Manager, as
  an Initial Lender

  
	
   

  	
   

  
	
   

  	
  as a Lender under the
  Japanese Term Loan Facility and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Wagner

  
	
   

  	
   

  	
  Name:

  	
  Thomas Wagner

  
	
   

  	
   

  	
  Title:

  	
  Managing Member

  



 


Signature Page


 

















 


	
   

  	
  Goldman Sachs Mortgage
  Company,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  x Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  o US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark Buono

  
	
   

  	
   

  	
  Name:

  	
  Mark Buono

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  Goldman Sachs Credit
  Partners L.P.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
  x Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
   ̈ US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caroline Benton

  
	
   

  	
   

  	
  Name:

  	
  Caroline Benton

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory 

  



 


Signature Page


 

















 


	
   

  	
  Goldman Sachs Lending
  Partners LLC,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
  x Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
  x US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caroline Benton

  
	
   

  	
   

  	
  Name:

  	
  Caroline Benton

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  Goldman Sachs Canada
  Credit Partners Co.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  x Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
   ̈ US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Caroline Benton

  
	
   

  	
   

  	
  Name:

  	
  Caroline Benton

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  Longacre Capital Partners
  (QP), L.P.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven Weissman 

  
	
   

  	
   

  	
  Name:

  	
  Steven Weissman 

  
	
   

  	
   

  	
  Title:

  	
  Manager of General Partner
  

  



 


Signature Page


 

















 


	
   

  	
  Longacre Master Fund, Ltd.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven Weissman 

  
	
   

  	
   

  	
  Name:

  	
  Steven Weissman 

  
	
   

  	
   

  	
  Title:

  	
  Director 

  



 


Signature Page


 
















 


	
   

  	
  Dune Real Estate Fund LP,

  as a Lender under:

  o Canadian
  Revolving Credit Facility

  o Irish
  Revolving Credit Facility

  o Irish Term
  Loan Facility

  o Japanese
  Revolving Credit Facility

  o Japanese
  Term Loan Facility

  o US Revolving
  Credit Facility

  x US Term Loan
  Facility

   

  and as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Dune Real Estate Partners
  LLC,

  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joshua P. Eaton

  
	
   

  	
   

  	
  Name:

  	
  Joshua P. Eaton

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  



 


Signature Page


 

















 


	
   

  	
  CCP Credit Acquisition
  Holdings, LLC,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

  x US Term Loan
  Facility

   

  and as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jed Hart

  
	
   

  	
   

  	
  Name:

  	
  Jed Hart

  
	
   

  	
   

  	
  Title:

  	
  Sr. Managing Director

  



 


Signature Page


 

















 


	
   

  	
  Marathon Special
  Opportunity Master Fund Ltd., as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jim Leahy

  
	
   

  	
   

  	
  Name:

  	
  Jim Leahy

  
	
   

  	
   

  	
  Title:

  	
  CFO

  



 


Signature Page


 

















 


	
   

  	
  Natixis,

  as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jacques Beyssade

  
	
   

  	
   

  	
  Name:

  	
  Jacques Beyssade

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page


 

















 


	
   

  	
  Taipei Fubon Commercial
  Bank,

  New York Agency,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

  x US Term Loan
  Facility

   

  and as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Tan

  
	
   

  	
   

  	
  Name:

  	
  Michael Tan

  
	
   

  	
   

  	
  Title:

  	
  VP & General
  Manager

  



 


Signature Page


 

















 


	
   

  	
  Royal Bank of Canada,

  as a Lender under:

  x Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

  x US Term Loan
  Facility

   

  and as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leslie P. Vowell

  
	
   

  	
   

  	
  Name:

  	
  Leslie P. Vowell

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-Fact

  



 


Signature Page


 

















 


	
   

  	
  CITIC Ka Wah Bank, Ltd.

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

   ̈ US Term Loan
  Facility

   

  and as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Zhao

  
	
   

  	
   

  	
  Name:

  	
  Peter Zhao

  
	
   

  	
   

  	
  Title:

  	
  EVP

  



 


Signature Page


 

















 


	
   

  	
  Deutsche Bank AG

  as a Lender under:

  x Canadian
  Revolving Credit Facility

  x Irish
  Revolving Credit Facility

  x Irish Term
  Loan Facility

  x Japanese
  Revolving Credit Facility

  x Japanese
  Term Loan Facility

  x US Revolving
  Credit Facility

  x US Term Loan
  Facility

   

  and 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

  



 


Signature Page


 

















 


	
   

  	
  Lehman Commercial Paper
  Inc.,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

  x US Term Loan
  Facility

   

  and as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steve Shirreffs

  
	
   

  	
   

  	
  Name:

  	
  Steve Shirreffs

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  Lehman Brothers Holdings, Inc.,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

  x Japanese
  Revolving Credit Facility

  x Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

   ̈ US Term Loan
  Facility

   

  and as a Majority Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Douglas J. Lambert

  
	
   

  	
   

  	
  Name:

  	
  Douglas J. Lambert

  
	
   

  	
   

  	
  Title:

  	
  SVP

  



 


Signature Page


 
















 


	
   

  	
  SCOTIABANC INC.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ J.F. Todd

  
	
   

  	
   

  	
  Name: 

  	
  J.F. Todd

  
	
   

  	
   

  	
  Title: 

  	
  Managing Director

  



 


Signature Page


 

















 


	
   

  	
  Merrill Lynch Bank USA,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  x Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese
  Revolving Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  o US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ David Millett

  
	
   

  	
   

  	
  Name: 

  	
  David Millett

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  DK Acquisition Partners,
  L.P., by M.H. Davidson & Co., its General Partner,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  o Japanese Revolving
  Credit Facility

  
	
   

  	
  o Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Conor Bastable

  
	
   

  	
   

  	
  Name: 

  	
  Conor Bastable

  
	
   

  	
   

  	
  Title: 

  	
  General Partner

  



 


Signature Page


 

















 


	
   

  	
  Sumitomo Mitsui Banking
  Corporation,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  o Canadian
  Revolving Credit Facility

  
	
   

  	
  o Irish
  Revolving Credit Facility

  
	
   

  	
  o Irish Term
  Loan Facility

  
	
   

  	
  x Japanese
  Revolving Credit Facility

  
	
   

  	
  x Japanese
  Term Loan Facility

  
	
   

  	
  o US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Yoshihiro Hyakutome

  
	
   

  	
   

  	
  Name: 

  	
  Yoshihiro Hyakutome

  
	
   

  	
   

  	
  Title: 

  	
  General Manager

  



 


Signature Page


 

















 


	
   

  	
  Wachovia Bank, N.A.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
  x Irish
  Revolving Credit Facility

  
	
   

  	
  x Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
  x US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Vanessa N. Rodriguez

  
	
   

  	
   

  	
  Name: 

  	
  Vanessa N. Rodriguez

  
	
   

  	
   

  	
  Title: 

  	
  Assistant Vice President

  



 


Signature Page


 

















 


	
   

  	
  The Royal Bank of
  Scotland,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   

  
	
   

  	
  x Irish
  Revolving Credit Facility

  
	
   

  	
  x Irish Term
  Loan Facility

  
	
   

  	
  x US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Timothy J. McNaught

  
	
   

  	
   

  	
  Name: 

  	
  Timothy J. McNaught

  
	
   

  	
   

  	
  Title: 

  	
  Managing Director

  



 


Signature Page


 

















 


	
   

  	
  Morgan Stanley Senior
  Funding Inc.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
  x Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
   ̈ US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas Doster

  
	
   

  	
   

  	
  Name: 

  	
  Thomas Doster

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  Shinsei Bank Limited,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
  x Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
   ̈ US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Shinichirou Seto

  
	
   

  	
   

  	
  Name: 

  	
  Shinichirou Seto

  
	
   

  	
   

  	
  Title: 

  	
  General Manager

  
	
   

  	
   

  	
   

  	
  Corporate Banking Business
  Division VI

  



 


Signature Page


 

















 


	
   

  	
  Credit Suisse Loan Funding
  LLC,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
  x US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert Healey

  
	
   

  	
   

  	
  Name: 

  	
  Robert Healey

  
	
   

  	
   

  	
  Title: 

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Francesca Sena

  
	
   

  	
   

  	
  Name: 

  	
  Francesca Sena

  
	
   

  	
   

  	
  Title: 

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  WestLB AG New York Branch,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish
  Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term
  Loan Facility

  
	
   

  	
   ̈ Japanese
  Revolving Credit Facility

  
	
   

  	
   ̈ Japanese
  Term Loan Facility

  
	
   

  	
   ̈ US Revolving
  Credit Facility

  
	
   

  	
   ̈ US Term Loan
  Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Tod Angus

  
	
   

  	
   

  	
  Name: 

  	
  Tod Angus

  
	
   

  	
   

  	
  Title: 

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Michael Sassos

  
	
   

  	
   

  	
  Name: 

  	
  Michael Sassos

  
	
   

  	
   

  	
  Title: 

  	
  Director

  



 


Signature Page


 
















 


	
   

  	
  Bank of America N.A.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian Revolving Credit Facility

  
	
   

  	
   ̈ Irish Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term Loan Facility

  
	
   

  	
   ̈ Japanese Revolving Credit Facility

  
	
   

  	
   ̈ Japanese Term Loan Facility

  
	
   

  	
   ̈ US Revolving Credit Facility

  
	
   

  	
   ̈ US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott R. Swenson

  
	
   

  	
   

  	
  Name:

  	
  Scott R. Swenson

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  National Bank of Egypt
  (UK) Ltd,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian Revolving Credit Facility

  
	
   

  	
   ̈ Irish Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term Loan Facility

  
	
   

  	
   ̈ Japanese Revolving Credit Facility

  
	
   

  	
   ̈ Japanese Term Loan Facility

  
	
   

  	
   ̈ US Revolving Credit Facility

  
	
   

  	
  x US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Margaret Bull

  
	
   

  	
   

  	
  Name:

  	
  Margaret Bull

  
	
   

  	
   

  	
  Title:

  	
  Senior Credit Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Nerurker

  
	
   

  	
   

  	
  Name:

  	
  Peter Nerurker

  
	
   

  	
   

  	
  Title:

  	
  Supervisor Loans
  Administration

  



 


Signature Page


 

















 


	
   

  	
  Societe Generale,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian Revolving Credit Facility

  
	
   

  	
   ̈ Irish Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term Loan Facility

  
	
   

  	
   ̈ Japanese Revolving Credit Facility

  
	
   

  	
   ̈ Japanese Term Loan Facility

  
	
   

  	
  x US Revolving Credit Facility

  
	
   

  	
  x US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nigel Elvey

  
	
   

  	
   

  	
  Name:

  	
  Nigel Elvey

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  The Bank of Nova Scotia,

  as a Lender under:

  Canadian Revolving Credit
  Facility

  US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ajit Goswani

  
	
   

  	
   

  	
  Name:

  	
  Ajit Goswani

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


Signature Page


 

















 


	
   

  	
  BAUPOST GROUP SECURITIES
  LLC,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian Revolving Credit Facility

  
	
   

  	
   ̈ Irish Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term Loan Facility

  
	
   

  	
   ̈ Japanese Revolving Credit Facility

  
	
   

  	
   ̈ Japanese Term Loan Facility

  
	
   

  	
   ̈ US Revolving Credit Facility

  
	
   

  	
  x US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Spector

  
	
   

  	
   

  	
  Name:

  	
  Brian Spector

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


Signature Page


 

















 


	
   

  	
  KING STREET ACQUISITION
  COMPANY, L.L.C.,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian Revolving Credit Facility

  
	
   

  	
   ̈ Irish Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term Loan Facility

  
	
   

  	
   ̈ Japanese Revolving Credit Facility

  
	
   

  	
   ̈ Japanese Term Loan Facility

  
	
   

  	
   ̈ US Revolving Credit Facility

  
	
   

  	
  x US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  King Street Capital
  Management, L.P.

  
	
   

  	
   

  	
  Its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  King Street Capital
  Management GP, L.L.C.

  
	
   

  	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay Ryan

  
	
   

  	
   

  	
  Name:

  	
  Jay Ryan

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  J.P. Morgan Chase Bank NA,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  x Canadian Revolving Credit Facility

  
	
   

  	
  x Irish Revolving Credit Facility

  
	
   

  	
  x Irish Term Loan Facility

  
	
   

  	
  x Japanese Revolving Credit Facility

  
	
   

  	
  x Japanese Term Loan Facility

  
	
   

  	
  x US Revolving Credit Facility

  
	
   

  	
  x US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John J. Coffey

  
	
   

  	
   

  	
  Name:

  	
  John J. Coffey

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


Signature Page


 

















 


	
   

  	
  Fifth Third Bank,

  
	
   

  	
  as a Lender under:

  
	
   

  	
  x Canadian Revolving Credit Facility

  
	
   

  	
   ̈ Irish Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term Loan Facility

  
	
   

  	
   ̈ Japanese Revolving Credit Facility

  
	
   

  	
   ̈ Japanese Term Loan Facility

  
	
   

  	
   ̈ US Revolving Credit Facility

  
	
   

  	
  x US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Randolph J. Stiener

  
	
   

  	
   

  	
  Name:

  	
  Randolph J. Steiner

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page


 

















 


	
   

  	
  SPCP Group, LLC,

  
	
   

  	
  as a Lender under:

  
	
   

  	
   ̈ Canadian Revolving Credit Facility

  
	
   

  	
   ̈ Irish Revolving Credit Facility

  
	
   

  	
   ̈ Irish Term Loan Facility

  
	
   

  	
   ̈ Japanese Revolving Credit Facility

  
	
   

  	
   ̈ Japanese Term Loan Facility

  
	
   

  	
   ̈ US Revolving Credit Facility

  
	
   

  	
  x US Term Loan Facility

  
	
   

  	
   

  
	
   

  	
  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Petrilli

  
	
   

  	
   

  	
  Name:

  	
  Richard Petrilli

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  Anchorage Capital Master
  Offshore, Ltd.,

  as a Majority Lender 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Anchorage Advisors,
  L.L.C., its 

  Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Natalie A. Birrell

  
	
   

  	
   

  	
  Name:

  	
  Natalie A. Birrell

  
	
   

  	
   

  	
  Title:

  	
  Chief Operating Officer

  



 


Signature Page


 
















 


	
   

  	
  The Bank of
  Tokyo-Mitsubishi UFJ, Ltd.,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

  x Japanese
  Revolving Credit Facility

  x Japanese
  Term Loan Facility

  x US Revolving
  Credit Facility

  x US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy Tracey

  
	
   

  	
   

  	
  Name: 

  	
  Timothy Tracey

  
	
   

  	
   

  	
  Title: 

  	
  General Manager

  



 


Signature Page


 

















 


	
   

  	
  Mega International
  Commercial Bank,

  Silicon Valley Branch

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

  x US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kuang Hua Wei

  
	
   

  	
   

  	
  Name: 

  	
  Kuang Hua Wei

  
	
   

  	
   

  	
  Title: 

  	
  SVP & General
  Manager

  



 


Signature Page


 

















 


	
   

  	
  Contrarian Funds, LLC

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

  x US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jim R. Bauer

  
	
   

  	
   

  	
  Name: 

  	
  Jim R. Bauer

  
	
   

  	
   

  	
  Title: 

  	
  Managing Member of Manager

  



 


Signature Page


 

















 


	
   

  	
  Toronto Dominion (Texas)
  LLC

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

  x US Revolving
  Credit Facility

  x US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jackie Barrett

  
	
   

  	
   

  	
  Name: 

  	
  Jackie Barrett

  
	
   

  	
   

  	
  Title: 

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  The Toronto-Dominion Bank,

  as a Lender under:

  x Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese Revolving
  Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

   ̈ US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jackie Barrett

  
	
   

  	
   

  	
  Name: 

  	
  Jackie Barrett

  
	
   

  	
   

  	
  Title: 

  	
  Authorized Signatory

  



 


Signature Page


 

















 


	
   

  	
  Chase Lincoln First
  Commercial,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

   ̈ US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ann Kurinskas

  
	
   

  	
   

  	
  Name: 

  	
  Ann Kurinskas

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


Signature Page


 

















 


	
   

  	
  Credit Suisse, Cayman
  Islands Branch,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

   ̈ US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Didier Siffer

  
	
   

  	
   

  	
  Name: 

  	
  Didier Siffer

  
	
   

  	
   

  	
  Title: 

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan Matthews

  
	
   

  	
   

  	
  Name: 

  	
  Bryan Matthews

  
	
   

  	
   

  	
  Title: 

  	
  Director

  



 


Signature Page


 

















 


	
   

  	
  Dune Real Estate Parallel
  Fund LP,

  as a Lender under:

   ̈ Canadian
  Revolving Credit Facility

   ̈ Irish
  Revolving Credit Facility

   ̈ Irish Term
  Loan Facility

   ̈ Japanese
  Revolving Credit Facility

   ̈ Japanese
  Term Loan Facility

   ̈ US Revolving
  Credit Facility

   ̈ US Term Loan
  Facility

  

  and as a Majority Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Dune Real Estate Partners
  LLC,

  
	
   

  	
   

  	
  Its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joshua P. Eaton

  
	
   

  	
   

  	
  Name: 

  	
  Joshua P. Eaton

  
	
   

  	
   

  	
  Title: 

  	
  General Counsel

  



 


Signature Page


 

















 


CONSENT


 


Reference is made to the Credit Agreement, dated as
of March 23, 2006, as amended by Amendment No. 1 to the Credit
Agreement, dated as of April 17, 2007, 
Amendment No. 2 to the Credit Agreement, dated as of June 30,
2007, Waiver to the Credit Agreement, dated as of April 20, 2009, Waiver No. 2
to the Credit Agreement, dated as of May 8, 2009, Waiver No. 3 to the
Credit Agreement, dated as of May 21, 2009 and Amendment No. 3 and
Waiver to the Credit Agreement, dated as of May 29, 2009, among Capmark
Financial Group Inc. (the “Company”), certain subsidiaries of the
Company, the financial institutions and other institutional lenders party
thereto, Citibank, N.A., as administrative agent for the Lenders and the other
agents party thereto (such Credit Agreement, as so amended, the “Credit Agreement”).


 


Each of the undersigned confirms and agrees that
notwithstanding the effectiveness of the foregoing Amendment No. 3 and
Waiver to the Credit Agreement, dated as of May 29, 2009 (the “Amendment”),
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 the Amendment to the Credit Agreement (in
each case, as defined therein).


 


[The remainder of
this page intentionally left blank]


 


Guarantor Consent


 

















 


	
   

  	
  CAPMARK FINANCE INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer,
  Executive Vice President

  
	
   

  	
   

  
	
   

  	
  CAPMARK INVESTMENTS LP,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Keith Kooper

  
	
   

  	
   

  	
  Name:

  	
  Keith Kooper

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  MORTGAGE INVESTMENTS, LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay N. Levine

  
	
   

  	
   

  	
  Name:

  	
  Jay N. Levine

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  SJM CAP, LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name:

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  CRYSTAL BALL HOLDING OF
  BERMUDA LIMITED,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter A. Widmann

  
	
   

  	
   

  	
  Name:

  	
  Peter A. Widmann

  
	
   

  	
   

  	
  Title:

  	
  President

  



 


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

  



 


Guarantor Consent


 

















 


	
   

  	
  CAPMARK AFFORDABLE EQUITY
  HOLDINGS INC.,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory J. McManus

  
	
   

  	
   

  	
  Name: 

  	
  Gregory J. McManus

  
	
   

  	
   

  	
  Title: 

  	
  Executive Vice President

  



 


Guarantor Consent


 

















 


	
   

  	
  SUMMIT CREST VENTURES LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter A. Widmann

  
	
   

  	
   

  	
  Name: 

  	
  Peter A. Widmann

  
	
   

  	
   

  	
  Title: 

  	
  President

  



 


Guarantor Consent


 

















 


	
   

  	
  CAPMARK REO HOLDING LLC,

  as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul W.
  Kopsky, Jr.

  
	
   

  	
   

  	
  Name:

  	
  Paul W. Kopsky Jr.

  
	
   

  	
   

  	
  Title: 

  	
  President

  



 


Guarantor Consent