Exhibit 10.2
EXECUTION COPY
WAIVER NO. 2 TO THE CREDIT AGREEMENT
Dated as of May 8, 2009
WAIVER NO. 2 TO THE CREDIT AGREEMENT (this "Waiver") among Capmark Financial
Group Inc., a Nevada corporation (the "Company"), certain subsidiaries of the
Company (together with the Company, the "Borrowers" and each a "Borrower"), 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 AND WAIVER TO THE CREDIT AGREMENT DATED AS OF APRIL 20, 2009 (AS FURTHER
AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
"CREDIT AGREEMENT").
CAPITALIZED TERMS NOT OTHERWISE DEFINED IN THIS WAIVER
HAVE THE SAME MEANINGS AS SPECIFIED IN THE CREDIT AGREEMENT.
(2)
THE BORROWERS HAVE REQUESTED THAT THE LENDERS AGREE TO WAIVE
CERTAIN PROVISIONS OF THE CREDIT AGREEMENT AS SET FORTH HEREIN.
(3)
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 WAIVING
ANY PROVISIONS TO THE CREDIT AGREEMENT
(4)
THE MAJORITY LENDERS HAVE AGREED, SUBJECT TO THE TERMS AND
CONDITIONS STATED BELOW, TO WAIVE THE CREDIT AGREEMENT AS SET FORTH HEREIN.
SECTION 1.
WAIVER TO CREDIT AGREEMENT
(a)
Subject to the satisfaction of the conditions precedent set forth
in Section 2, the Agent and the Majority Lenders hereby waive, solely for the
period commencing on the date hereof through May 21, 2009 at 5:00 p.m. EDT (the
"Waiver Termination Date"), the Event of Default arising directly from the
Company's failure to maintain, pursuant to Section 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 (the "Financial Covenant
Non-Compliance Event of Default").
(b)
Until the Waiver Termination Date, the Majority Lenders hereby
agree to forbear (and instruct the Agent to forbear) from exercising any right
or remedy under the Credit Agreement as a result of the occurrence and
continuance of the Event of Default arising from the Financial Covenant
Non-Compliance Event of Default.
(c)
On the Waiver Termination Date, without any further action by the
Agent and the Majority Lenders, all of the terms and provisions set forth in the
Credit Agreement with respect