WAIVERNO. 2 TO THE CREDIT AGREEMENT Dated asof May 8, 2009

EX-10.2 3 a09-13208_1ex10d2.htm EX-10.2

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 to any Event of Default thereunder that is waived hereunder and not cured prior to the Waiver Termination Date shall have the same force and effect as if this Waiver had not been entered into by the parties hereto, and

 


 

the Agent and the Majority Lenders shall have all of the rights and remedies afforded to them under the Credit Agreement with respect to any such Event of Default as though no waiver had been granted by them hereunder.  Notwithstanding anything contained herein to the contrary, the foregoing waivers are not intended and shall not be deemed or construed to constitute a waiver of any Default or any other Event of Default that hereafter may occur under Credit Agreement or to establish a custom or course of dealing among the Borrowers, the other Loan Parties, 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.

 

(d)           The Borrowers hereby agree to negotiate in good faith with the Agent and Lenders to finalize by no later than May 21, 2009 the amendments to the Credit Agreement and to the Bridge Facility and the definitive documentation for the “Facility” described in the commitment letters dated on or about May 6, 2009 (together with the Term Sheet referred to therein, the “Commitment Letters”) entered into by certain Lenders and certain lenders under the Bridge Facility, in each case on substantially the terms and conditions set forth in the Commitment Letters.

 

SECTION 2.           CONDITIONS OF EFFECTIVENESS

 

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

 

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

 

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

 

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

 

(d)           the Agent shall have received satisfactory evidence that Amendment No. 7 and Waiver to the Bridge Facility dated as of the date hereof shall have become effective;

 

(e)           the Agent shall have received satisfactory evidence that the board of directors of the Company shall have approved the Transactions (as defined in the Commitment Letters) on substantially the terms set forth in the Commitment Letters; and

 

(f)            all other fees and expenses of the Agent and the Lenders (including all reasonable fees and expenses of counsel to the Agent), to the extent invoiced prior to the date hereof, shall have been paid.

 

2


 

SECTION 3.           CONFIRMATION OF REPRESENTATIONS AND WARRANTIES

 

(a)           Each of the Company and each Borrower hereto 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 such Loan Party) are true and correct in all material respects on and as of the date hereof, before and after giving effect to this Waiver, as though made on and as of the date hereof, other than any such representations or warranties that, by their terms, refer to a specific date.

 

SECTION 4.           AFFIRMATION OF THE COMPANY AND THE BORROWERS

 

The Company and each Borrower hereby consents to the waiver to the Credit Agreement effected hereby, and hereby confirms and agrees that, notwithstanding the effectiveness of this Waiver, the obligations of the Company and each such Borrower 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 5.           REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS

 

(a)           On and after the effectiveness of this Waiver, 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 Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement as modified by this Waiver.

 

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

 

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

 

SECTION 6.           COSTS, EXPENSES

 

The Borrowers agree 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 Waiver and the other instruments and documents to be delivered hereunder (including, without limitation, the reasonable fees and expenses of counsel for the Agent) in accordance with the terms of subsection 10.5 of the Credit Agreement.

 

SECTION 7.           EXECUTION IN COUNTERPARTS

 

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

 

SECTION 8.           GOVERNING LAW

 

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

 

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[The remainder of this page intentionally left blank.]

 

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

 

 

 

CAPMARK FINANCIAL GROUP INC.,
as the Company

 

 

 

 

By: 

/s/ Gregory J. McManus

 

 

Name:

Gregory J. McManus

 

 

Title:

Chief Financial Officer, Executive Vice President

 


 

 

CAPMARK CANADA LIMITED,
as a Borrower

 

 

 

 

By: 

/s/ Michael I. Lipson

 

 

Name:

Michael I. Lipson

 

 

Title:

Executive Vice President

 

 

 

 

 

CAPMARK BANK EUROPE, PUBLIC 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

 


 

 

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:

Executive Vice President And Chief Financial Officer

 

 

 

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

 


 

 

CAPMARK JAPAN, K.K.,
as a Borrower

 

 

 

 

By: 

/s/ Katsuyoshi Dobashi

 

 

Name:

Katsuyoshi Dobashi

 

 

Title:

Representative Director

 


 

CITIBANK, N.A.,
as Administrative Agent

 

 

 

 

By:

/s/ Michael Schadt

 

 

Name:

Michael Schadt

 

 

Title:

Director

 

 


 

 

The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
New York Branch, as a Majority Lender

 

 

 

 

By: 

/s/ David Noda

 

 

Name:

David Noda

 

 

Title:

Vice President and Manager

 


 

 

GoldenTree Master Fund II, Ltd
GoldenTree Master Fund, Ltd
GoldenTree MultiStrategy Financing, Limited
GoldenTree MultiStrategy Subsidiary, LLC
GPC LVIII, LLC
GoldenTree Asset Management Lux Sarl
As a Lender(s)
By: GoldenTree Asset Management, LP
The Investment Advisor

 

 

 

 

By: 

/s/ Karen Weber

 

 

Name:

Karen Weber

 

 

Title:

Director, Bank Debt

 


 

 

Wachovia Bank, N.A.,
as a Majority Lender

 

 

 

 

By: 

/s/ Vanessa N. Rodriguez

 

 

Name:

Vanessa N. Rodriguez

 

 

Title:

Assistant Vice President

 


 

 

Scotiabanc Inc.,
as a Majority Lender

 

 

 

 

By: 

/s/ J.F. Todd

 

 

Name:

J.F. Todd

 

 

Title:

Managing Director

 


 

 

Credit Suisse, Cayman Islands Branch,
as a Majority Lender

 

 

 

 

By: 

/s/ Didier Siffer

 

 

Name:

Didier Siffer

 

 

Title:

Managing Director

 

 

 

By: 

/s/ Bryan Matthews

 

 

Name:

Bryan Matthews

 

 

Title:

Director

 


 

 

JPMorgan Chase Bank, N.A.,
as a Majority Lender

 

 

 

 

By: 

/s/ Marina Flindell

 

 

Name:

Marina Flindell

 

 

Title:

Executive Director

 


 

 

Fifth Third Bank,
as a Majority Lender

 

 

 

 

By: 

/s/ Randolph J. Stierer

 

 

Name:

Randolph J. Stierer

 

 

Title:

Vice President

 


 

 

Citibank, N.A.,
as a Majority Lender

 

 

 

 

By: 

/s/ Michael Schadt

 

 

Name:

Michael Schadt

 

 

Title:

Director

 


 

 

The Toronto-Dominion Bank,
as a Majority Lender

 

 

 

 

By: 

/s/ Ian Murray

 

 

Name:

Ian Murray

 

 

Title:

Authorized Signatory

 


 

 

Toronto Dominion (Texas) LLC

 

 

 

 

By: 

/s/ Ian Murray

 

 

Name:

Ian Murray

 

 

Title:

Authorized Signatory

 


 

 

Lehman Brothers Holdings, Inc.,
as a Majority Lender

 

 

 

 

By: 

/s/ Jack McCarthy

 

 

Name:

Jack McCarthy

 

 

Title:

Authorized Signatory

 


 

 

Sumitomo Mitsui Banking Corporation,
as a Majority Lender

 

 

 

 

By: 

/s/ Yoshihiro Hyakutome

 

 

Name:

Yoshihiro Hyakutome

 

 

Title:

General Manager

 


 

 

The Royal Bank of Scotland plc,
as a Majority Lender

 

 

 

 

By: 

/s/ Michael Fabiano

 

 

Name:

Michael Fabiano

 

 

Title:

Senior Vice President

 


 

 

Societe Generale,
as a Majority Lender

 

 

 

 

By: 

/s/ Nigel Elvey

 

 

Name:

Nigel Elvey

 

 

Title:

Vice President

 


 

 

CITIC Ka Wah Bank, Ltd. New York Branch,
as a Majority Lender

 

 

 

 

By: 

/s/ Wayne D. Kramen

 

 

Name:

Wayne D. Kramen

 

 

Title:

FVP

 


 

 

Mega International Commercial Bank Silicon Valley Branch,
as a Majority Lender

 

 

 

 

By: 

/s/ Kuang Hua Wei

 

 

Name:

Kuang Hua Wei

 

 

Title:

SVP & General Manager

 


 

 

Royal Bank of Canada,
as a Majority Lender

 

 

 

 

By: 

/s/ Leslie P. Vowell

 

 

Name:

Leslie P. Vowell

 

 

Title:

Attorney-in-Fact

 


 

 

The Bank of Nova Scotia,
as a Majority Lender

 

 

 

 

By: 

/s/ George Sherman

 

 

Name:

George Sherman

 

 

Title:

Director

 


 

 

Morgan Stanley Senior Funding Inc.,
as a Majority Lender

 

 

 

 

By: 

/s/ S. Yeo

 

 

Name:

S. Yeo

 

 

Title:

Vice President

 


 

 

Credit Suisse Loan Funding LLC,
as a Majority Lender

 

 

 

 

By: 

/s/ Ian Landow

 

 

Name:

Ian Landow

 

 

Title:

Authorized Signatory

 

 

 

 

 

By: 

/s/ Ronald Gotz

 

 

Name:

Ronald Gotz

 

 

Title:

Authorized Signatory

 


 

 

CCP Credit Acquisition Holdings, LLC,
as a Majority Lender

 

 

 

 

By: 

/s/ Jed Hart

 

 

Name:

Jed Hart

 

 

Title:

Sr. Managing Director

 


 

 

Bank of America N.A.,
as a Majority Lender

 

 

 

 

By: 

/s/ Scott R. Swenson

 

 

Name:

Scott R. Swenson

 

 

Title:

Vice President

 


 

 

Knighthead Master Fund, LP
By: Knighthead Capital Management, LLC
Its Investment Manager
as a Majority Lender

 

 

 

 

By: 

/s/ Thomas Wagner

 

 

Name:

Thomas Wagner

 

 

Title:

 

 


 

 

Contrarian Funds, LLC,
as a Majority Lender

 

 

 

 

By: 

/s/ Michael J. Restifo

 

 

Name:

Michael J. Restifo

 

 

Title:

CFO/Member

 


 

 

Goldman Sachs Mortgage Company,
as a Majority Lender

 

 

 

 

By: 

/s/ Mark J. Buono

 

 

Name:

Mark J. Buono

 

 

Title:

Vice President

 


 

 

Goldman Sachs Canada Credit Partners Co.,
as a Majority Lender

 

 

 

 

By: 

/s/ Caroline Benton

 

 

Name:

Caroline Benton

 

 

Title:

Authorized Signatory

 


 

 

Goldman Sachs Lending Partners LLC,
as a Majority Lender

 

 

 

 

By: 

/s/ Caroline Benton

 

 

Name:

Caroline Benton

 

 

Title:

Authorized Signatory

 


 

 

Goldman Sachs Credit Partners L.P.,
as a Majority Lender

 

 

 

 

By: 

/s/ Caroline Benton

 

 

Name:

Caroline Benton

 

 

Title:

Authorized Signatory

 


 

 

Deutsche Bank AG, New York,
as a Majority Lender

 

 

 

 

By: 

/s/ Emile Van den Bol

 

 

Name:

Emile Van den Bol

 

 

Title:

Managing Director

 

 

 

 

 

 

By: 

/s/ R. Chris Jones

 

 

Name:

R. Chris Jones

 

 

Title:

Director

 


 

 

Merrill Lynch Bank USA,
as a Majority Lender

 

 

 

 

By: 

/s/ David Millett

 

 

Name:

David Millett

 

 

Title:

Vice President

 


 

 

National Bank of Egypt (UK) Ltd,
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

 


 

 

Silver Oak Capital, LLC,
as a Majority Lender

 

 

 

 

By: 

/s/ Thomas M. Fuller

 

 

Name:

Thomas M. Fuller

 

 

Title:

Authorized Signatory

 


 

 

West LB AG, New York Branch, LLC,
as a Majority Lender

 

 

 

 

By: 

/s/ Michael Sassos

 

 

Name:

Michael Sassos

 

 

Title:

Director

 

 

 

 

 

 

By: 

/s/ Martin Marty

 

 

Name:

Martin Marty

 

 

Title:

Associate Director

 


 

 

Shinsei Bank Limited,
as a Majority Lender

 

 

 

 

By: 

/s/ Shinichirou Seto

 

 

Name:

Shinichirou Seto

 

 

Title:

Generale Manager

 


 

Annex A to

Waiver to the Credit Agreement

 

Form of Guarantor Consent

 

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, and Waiver to the Credit Agreement, dated as of April 20, 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 Waiver No. 2 to the Credit Agreement dated as of May 8, 2009, 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 Waiver to the Credit Agreement (in each case, as defined therein).

 

 

COMMERCIAL EQUITY INVESTMENTS, INC.,
as a Guarantor

 

 

 

 

By: 

/s/ Anne E. Kelly

 

 

Name:

Anne E. Kelly

 

 

Title:

Treasurer

 

 

 

CAPMARK CAPITAL INC.,
as a Guarantor

 

 

 

 

By: 

/s/ Gregory J. McManus

 

 

Name:

Gregory J. McManus

 

 

Title:

President

 

 

 

NET LEASE ACQUISITION LLC,
as a Guarantor

 

 

 

 

By: 

/s/ Gregory J. McManus

 

 

Name:

Gregory J. McManus

 

 

Title:

President

 


 

 

CAPMARK FINANCE INC.,
as a Guarantor

 

 

 

 

By: 

/s/ Gregory J. McManus

 

 

Name:

Gregory J. McManus

 

 

Title:

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