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RESCINDED;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