Exhibit 10.35


 


	
  DATED

  	
  AS OF 30 MAY 2007

  



 


 


 


CAPMARK AB NO. 2 LIMITED


as
Borrower


 


-and-


 


IXIS CORPORATE & INVESTMENT BANK, LONDON
BRANCH

as
Original Lender


 


-and-


 


CAPMARK FINANCIAL GROUP INC.

as
Guarantor


 


-and-


 


IXIS CORPORATE &  INVESTMENT BANK, LONDON BRANCH

as
Agent


 


-and-


 


THE BANK OF NEW YORK

as
Security Trustee


 


-and-


 


CAPMARK BANK EUROPE P.L.C.

as
Capmark Security Trustee


 


	
   

  
	
  FIFTH AMENDING DEED RELATING TO THE

  
	
  £500,000,000 REVOLVING CREDIT AGREEMENT

  
	
   

  



 


 


Lovells


 


Ref.:
PASAL/SAC/730609.6

S1009.00453


 


Lovells LLP, 6, avenue Kléber, 75116 Paris


 





















 


TABLE OF CONTENTS


 


	
  CLAUSE

  	
   

  	
  PAGE

  
	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  AMENDMENTS TO THE FACILITY AGREEMENT

  	
  1

  
	
   

  	
   

  	
   

  
	
  3.

  	
  GERMAN SECURITY

  	
  11

  
	
   

  	
   

  	
   

  
	
  4.

  	
  COSTS AND EXPENSES

  	
  12

  
	
   

  	
   

  	
   

  
	
  5.

  	
  REMEDIES AND WAIVERS

  	
  12

  
	
   

  	
   

  	
   

  
	
  6.

  	
  PARTIAL INVALIDITY

  	
  12

  
	
   

  	
   

  	
   

  
	
  7.

  	
  FURTHER ASSURANCE

  	
  13

  
	
   

  	
   

  	
   

  
	
  8.

  	
  COUNTERPARTS

  	
  13

  
	
   

  	
   

  	
   

  
	
  9.

  	
  GOVERNING LAW - JURISDICTION

  	
  13

  
	
   

  	
   

  	
   

  
	
  10.

  	
  SERVICE OF PROCESS

  	
  13

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1 - FORM OF POWER OF ATTORNEY

  	
  16

  



 





















 


THIS FIFTH AMENDING DEED is
made and delivered as of 30 May 2007


 


BETWEEN:


 


(1)                     CAPMARK AB NO. 2 LIMITED a company
incorporated in Ireland (registered number 400239) whose principal office is at
Commerzbank House, 35-50 Guild Street, Dublin 1, Ireland (the “Borrower”);


 


(2)                     IXIS CORPORATE & INVESTMENT BANK a
company incorporated in France acting through its London Branch at 25 Dowgate
Hill, London EC4R 2YA (the “Original Lender”);


 


(3)                     CAPMARK FINANCIAL GROUP INC. a company
incorporated in Nevada whose principal office is at 200 Witmer Road, Horsham
PA, 19044 USA (the “Guarantor”);


 


(4)                     IXIS CORPORATE & INVESTMENT BANK a
company incorporated in France acting through its London Branch at 25 Dowgate
Hill, London EC4R 2YA in its capacity as agent for the Lenders (in that
capacity, the “Agent”);


 


(5)                     THE BANK OF NEW YORK a New York Banking
Corporation acting through its London Branch at One Canada Square, London E14
5AL as security trustee for itself and on behalf of the other Secured Parties
(the “Security Trustee”); and


 


(6)                     CAPMARK BANK EUROPE P.L.C. a company
incorporated in Ireland (registered number 315344) whose principal office is at
Commerzbank House, 35-50 Guild Street, Dublin 1, Ireland as security trustee on
behalf of the Borrower (the “Capmark Security
Trustee”).


 


WHEREAS:


 


(A)                 The
Borrower, the Original Lender, the Guarantor, the Agent and the Security
Trustee are parties to the revolving credit agreement dated 31 May 2005 in
an initial amount of £300,000,000, as subsequently increased to £500,000,000,
as amended by an amending deed on 26 August 2005, a second amending deed
on 30 September 2005, a third amending deed on 30 November 2005, a
fourth amending deed as of 23 March 2006 and as amended and restated on 30
May 2006, together, the “Facility
Agreement”.


 


(B)                   The
Original Lender is at the date hereof the only Lender under the Facility
Agreement.


 


(C)                   The
Parties now wish to make various amendments to the Facility Agreement. In
particular, Parties have agreed to extend the Availability Period of the
Facility Agreement, lower the Margin payable under the Facility Agreement and
reduce the legal documentation to be provided as regards Secured Property Loans
with a value of less than £35,000,000 or €50,000,000.


 


(D)                  Notwithstanding
the terms of the Master Security Assignment Agreement, the Parties have agreed
to complete the steps set out in clause 3 below with regards to German Security
as defined in the Master Security Assignment Agreement over German Property
granted under a Secured Property Loan.


 


(E)                    Pursuant
to Clauses 31.1 and 31.2 of the Facility Agreement, the amendments set out in
Recital (C) above may be amended with the consent of all of the Lenders
and the Borrower and shall be binding on all Parties.


 


(F)                    On
the date hereof, the Borrower, the Original Lender, the Guarantor, the Agent
and the Security Trustee now wish to amend the Facility Agreement as follows.


 





















 


IT IS
AGREED:


 


1.                          DEFINITIONS AND INTERPRETATION


 


1.1                    Definitions


 


Capitalised terms and
expressions used in this Fifth Amending Deed shall, unless otherwise defined in
this Deed or save as the context otherwise requires, have the meaning ascribed
to such terms and expressions in the Facility Agreement.


 


1.2                    Interpretation


 


(a)                    Unless
a contrary indication appears, any reference in this Fifth Amending Deed to:


 


(i)                        a
Clause or Schedule is to a clause of a schedule to this Fifth Amending Deed (as
the case may be);


 


(ii)                     each
of Borrower and the Agent agrees that this Fifth Amending Deed shall be a
Finance Document for the purposes of the Facility Agreement; and


 


(iii)                  a
“Finance Document” or any other agreement or instrument is a reference to that
Finance Document or other agreement or instrument as amended or novated.


 


(b)                   Clause
and Schedule headings are for ease of reference only.


 


1.3                    Third Party Rights


 


(a)                    Unless
expressly provided to the contrary in this Fifth Amending Deed, a person who is
not a Party has no right under the Contracts (Rights of Third Parties) Act 1999
to enforce or to enjoy the benefit of any term of this Fifth Amending Deed.


 


(b)                   Notwithstanding
any term of this Fifth Amending Deed, the consent of any person who is not a
Party is not required to rescind or vary this Fifth Amending Deed at any time.


 


2.                          AMENDMENTS TO THE FACILITY AGREEMENT


 


The Parties hereto agree
that, with effect from the date of this Fifth Amending Deed, the Facility
Agreement shall be amended so as to conform to the amendments in this Fifth
Amending Deed.


 


The Facility Agreement
shall be amended as follows:


 


(a)                    The
definition of “Approved Lawyer” shall be deleted and replaced by:


 


““Approved Lawyer” shall mean any of those
firms of lawyers listed in schedule 13 (List
of Approved Lawyers and Approved Valuers)  or as approved and acceptable to the Agent. If the Borrower
uses a firm of lawyers not listed in schedule 13 it shall give notice to the Agent
accordingly.”


 


(b)                   The
definition of “Approved Valuer” shall be deleted and replaced by:


 


““Approved Valuer” shall mean any of those
firms of valuers listed in schedule 13 (List
of Approved Lawyers and Approved Valuers)  or as approved and acceptable


 





















 


to the Agent. If the
Borrower uses a firm of valuers not listed in schedule 13 it shall give notice
to the Agent accordingly.”


 


(c)                    The
Availability Period shall be extended by twelve months from the date of this
Fifth Amending Deed.


 


(d)                   The
definition of “Margin” shall be amended as follows: the number “0.6 per cent.
per annum” shall be replaced with “0.5 per cent. per annum”.


 


(e)                    Clause
4.1 (Secured Property Loan approval procedure) shall be deleted and replaced
by:


 


“4.1             Secured Property Loan approval procedure for Secured
Property Loans with a value of less than £35,000,000 or €50,000,000


 


(a)                    If
the Borrower wishes to utilise the Facility to fund or refinance the making or
acquisition of a Secured Property Loan with a value of less than £35,000,000 or
€50,000,000, then It shall initiate the process:


 


(i)                        by
giving no less than five Business Days’ notice to the Agent (or shorter notice
If the Agent agrees); and


 


(ii)                     in
respect of up to three proposed Loans, it being understood that the Lenders
shall not review more than three Secured Property Loans at any one time (or any
greater number that the Lenders may from time to time agree).


 


(b)                   No
later than five Business Days following the notice referred to in clause
4.1(a), the Borrower shall deliver to the Agent (with, if the Agent so
requests, sufficient copies for the Lenders) the Initial Secured Property Loan
Package, and the Agent shall promptly provide the Lenders with that Initial
Secured Property Loan Package.


 


(c)                    The
Lenders shall, within five Business Days following receipt of the Initial
Secured Property Loan Package notify the Agent that:


 


(i)                        the
Lenders approve the proposed funding of or refinancing of the making or
acquisition of the proposed Secured Property Loan in principle and of any
conditions to that approval; or


 


(ii)                     the
Lenders do not so approve (in which case the grounds for refusal must be
stated),


 


and, in either case, the
Agent will immediately notify the Borrower.


 


(d)                   No
later than five Business Days after the Lenders have given their approval
pursuant to clause 4.1(c) (i), the Borrower shall provide to the Agent
(with, if the Agent so requests, sufficient copies for the Lenders) and the
Agent shall promptly provide the Lenders with the Secured Property Loan Actual
Documentation as set out in Part 1 of Schedule 7, in substantially its
final form. Upon receipt of the Secured Property Loan Actual Documentation, the
Lenders may instruct their external legal counsel to conduct due diligence in
respect of the relevant Secured Property Loans. If the Secured Property Loan
Actual Documentation is not satisfactory to the Agent, acting reasonably, the


 


2





















 


Lenders and their
external legal counsel may request additional legal documentation.


 


(e)                    The
Lenders shall within five Business Days following receipt of the items listed
in clause 4.1(d) which will include due diligence by their external legal
counsel, notify the Agent that:


 


(i)                        the
Lenders have given their final approval to the proposed funding or refinancing
of the making or acquisition of the Secured Property Loan and of any further
conditions to that final approval; or


 


(ii)                     the
Lenders do not so approve (in which case the grounds for refusal must be
stated),


 


and, in either case, the
Agent will immediately notify the Borrower.


 


(f)                      The
Borrower may not deliver any Utilisation Request in respect of a Secured
Property Loan unless the funding or refinancing of the making or acquisition of
that Secured Property Loan has been approved pursuant to clause 4.1(e) and
any conditions imposed by the Lenders as referred to in clause 4.1(c)(i) or
4.1(e)(i) have been satisfied.


 


(g)                   For
the avoidance of doubt, the Lenders are under no obligation to give their
approval to any proposed funding or refinancing.


 


4.2                    Secured Property Loan approval procedure with a value
greater than £35,000,000 or €50,000,000


 


(a)                    If
the Borrower wishes to utilise the Facility to fund or refinance the making or
acquisition of a Secured Property Loan with a value greater than £35,000,000 or
€50,000,000, then it shall initiate the process:


 


(i)                        by
giving no less than five Business Days’ notice to the Agent (or shorter notice
if the Agent agrees); and


 


(ii)                     in
respect of up to three proposed Loans, it being understood that the Lenders
shall not review more than three Secured Property Loans at any one time (or any
greater number that the Lenders may from time to time agree).


 


(b)                   No
later than five Business Days following the notice referred to in clause
4.2(a), the Borrower shall deliver to the Agent (with, if the Agent so
requests, sufficient copies for the Lenders) the Initial Secured Property Loan
Package, and the Agent shall promptly provide the Lenders with that Initial
Secured Property Loan Package.


 


(c)                    The
Lenders shall, within five Business Days following receipt of the Initial
Secured Property Loan Package notify the Agent that:


 


(i)                        the
Lenders approve the proposed funding of or refinancing of the making or
acquisition of the proposed Secured Property Loan in principle and of any
conditions to that approval; or


 


(ii)                     the
Lenders do not so approve (in which case the grounds for refusal must be
stated),


 


3





















 


and, in either case, the
Agent will immediately notify the Borrower.


 


(d)                   No
later than five Business Days after the Lenders have given their approval
pursuant to clause 4.2 (c) (i), the Borrower shall provide to the Agent
(with, if the Agent so requests, sufficient copies for the Lenders) and the
Agent shall promptly provide the Lenders with the Secured Property Loan Actual
Documentation as set out in Part 2 of Schedule 7, in substantially its
final form. Upon receipt of the Secured Property Loan Actual Documentation, the
Lenders may instruct their external legal counsel to conduct due diligence in
respect of the relevant Secured Property Loans.


 


(e)                    The
Lenders shall within ten Business Days following receipt of the items listed in
clause 4.2(d) which will include due diligence by their external legal
counsel, notify the Agent that:


 


(i)                        the
Lenders have given their final approval to the proposed funding or refinancing
of the making or acquisition of the Secured Property Loan and of any further
conditions to that final approval; or


 


(ii)                     the
Lenders do not so approve (in which case the grounds for refusal must be
stated),


 


and, in either case, the
Agent will immediately notify the Borrower.


 


(f)                      The
Borrower may not deliver any Utilisation Request in respect of a Secured
Property Loan unless the funding or refinancing of the making or acquisition of
that Secured Property Loan has been approved pursuant to clause 4.2(e) and
any conditions imposed by the Lenders as referred to in clause 4.2(c)(i) or
4.2(e)(i) have been satisfied.


 


(g)                   For
the avoidance of doubt, the Lenders are under no obligation to give their
approval to any proposed funding or refinancing.”


 


(c)                    Clause
4.2 shall become clause 4.3, clause 4.3 shall become clause 4.4, clause 4.4
shall become clause 4.5 and clause 4.5 shall become clause 4.6; and accordingly
the references in the Facility Agreement shall be so construed.


 


(d)                   Clause
17.1 (a) (Financial Statements) shall be deleted and replaced by:


 


“(a)               The
Borrower and the Guarantor shall supply and the Borrower shall procure that
each member of the Group which produces them supplies to the Agent (in
sufficient copies for all the Lenders) and to the Security Trustee as soon as
the same become available but in any event within 135 days after the end of
each of its financial years or, as applicable, half years:


 


(i)                       its
audited financial statements for that financial year; and


 


(ii)                    its
unaudited financial statements for that half year.”


 


(e)                    Item
9 of Schedule 6 (Initial Secured Property Loan Package) shall be deleted and
item 10 shall be renumbered item 9 accordingly.


 


4





















 


(f)                      Schedule
7 (Secured Property Loan Actual Documentation) shall be deleted and replaced
by:


 


“PART 1


 


SECURED PROPERTY LOAN ACTUAL DOCUMENTATION


 


FOR SECURED PROPERTY LOANS WITH A VALUE OF LESS THAN
£35,000,000 OR

€50,000,000


 


1.                          Secured
Property Loan Agreement.


 


2.                          Collateral
Agreement(s) comprising, for this Part 1 of Schedule 7 only of a copy
of the deed creating the charge by way of legal mortgage in the case of Secured
Property Loans relating to English and Welsh Property, the land charge (grundschuld) in the case of Secured
Property Loans relating to German Property, or Non-standard Security in the
case of Scottish Secured Property Loans, over the relevant Property, and any
deed or agreement of variation or other deed or agreement supplemental to that
deed or agreement.


 


3.                          Hedge
documentation (as defined in the Secured Property Loan Agreement).


 


4.                          Legal
opinions listed in the Secured Property Loan Agreement (addressed so as to
benefit the Finance Parties).


 


5.                          Such
other information as the Agent acting reasonably may have specified as
conditions to the Lenders’ approval in relation to the relevant proposed
Secured Property Loan in accordance with clause 4.1 (c) and/or (e) (Secured Property Loan approval procedure).


 


PART 2


 


SECURED PROPERTY LOAN ACTUAL DOCUMENTATION


 


FOR SECURED PROPERTY LOANS WITH A VALUE GREATER THAN
£35,000,000 OR

€50,000,000


 


1.                          Term
sheet (including draft), if any.


 


2.                          Capmark
panel firms with global arrangements in place.


 


3.                          Valuer
instruction letter.


 


4.                          Secured
Property Loan Agreement.


 


5.                          Collateral
Agreement(s).


 


6.                          Certificate
of/Report on/Confirmation of Title by the Approved Lawyer or, in the case of
Secured Property Loans relating to German Property, the relevant notary.


 


7.                          Duty
of care agreement, subordination agreement, transfer certificate, hedge
documentation and drawdown notice (as each of these terms are defined in the
Secured Property Loan Agreement).


 


8.                          Legal
opinions (addressed so as to benefit the Finance Parties).


 


5





















 


9.                          Such
other information as the Agent acting reasonably may have specified as conditions
to the Lenders’ approval in relation to the relevant proposed Secured Property
Loan in accordance with clause 4.2 (c) and/or (e) (Secured Property Loan approval procedure).”


 


(g)                   Schedule
13 (List of Approved Lawyers and Approved Valuers) shall be deleted and
replaced by:


 


6














 


“SCHEDULE 13


 


LIST OF APPROVED LAWYERS
AND APPROVED VALUERS


 


Part 1

Approved Lawyers in England and in Wales


 


	
  Firm

  	
   

  	
  Contact

  	
   

  	
  Address

  	
   

  	
  Phone

  	
   

  	
  Fax

  	
   

  	
  Email

  
	
  Addleshaw

  Goddard LLP

  	
   

  	
  Paul Salsbury

  	
   

  	
  Alder Castle

  10 Noble Street

  London

  EC2V 7JW

  	
   

  	
  +44 (0)20

  7606 8855

  	
   

  	
   

  	
   

  	
  paul.salsbury@addleshawgoddard.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Berwin
  Leighton

  Paisner
  LLP

  	
   

  	
  Mark Waghom

  	
   

  	
  Adelaide House

  London Bridge

  London

  EC4R 9HA

  	
   

  	
  +44 (0)20

  7760 4120

  	
   

  	
   

  	
   

  	
  mark.waghom@blplaw.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dechert
  LLP

  	
   

  	
  Ciaran P. Carvalho

  	
   

  	
  180 Queen

  Victoria Street

  London

  EC4V 4QQ

  	
   

  	
  +44 (0)20

  7184 7473

  	
   

  	
   

  	
   

  	
  ciaran.carvalho@dechert.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Freshfields

  Bruckhaus
  Deringer

  	
   

  	
  Simon Johnson

  	
   

  	
  65 Fleet Street

  London

  EC4Y 1HS

  	
   

  	
  +44 (0)20

  7936 4000

  	
   

  	
   

  	
   

  	
  simon.johnson@freshfields.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kirkpatrick &

  Lockhart

  Nicholson

  Graham
  LLP

  	
   

  	
  Jonathan Lawrence

  	
   

  	
  110 Cannon Street

  London

  EC4N 6AR

  	
   

  	
  +44 (0)20

  7648 9001

  	
   

  	
   

  	
   

  	
  jlawrence@klng.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Lawrence
  Graham LLP

  	
   

  	
  Nicholas Turner

  	
   

  	
  190 Strand

  London

  WC2R 1JN

  	
   

  	
  +44 (0)20

  7759 6605

  	
   

  	
   

  	
   

  	
  nick.tumer@lawgram.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mayer,
  Brown, Rowe &  Maw LLP

  	
   

  	
  Stephen Bower

  	
   

  	
  11 Pilgrim Street

  London

  EC4V 6RW

  	
   

  	
  +44 (0)20

  7782 8866

  	
   

  	
   

  	
   

  	
  stephen.bower@mayerbronrowe.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  White &

  Case LLP

  	
   

  	
  David Cox

  	
   

  	
  5 Old Broad Street

  London

  EC2N 1DW

  	
   

  	
  +44 (0)20

  7532 2157

  	
   

  	
   

  	
   

  	
  dcox@whitecase.com

  



 


7

















 


Approved Lawyers in
Germany


 


	
  Firm

  	
   

  	
  Contact

  	
   

  	
  Address

  	
   

  	
  Phone

  	
   

  	
  Fax

  	
   

  	
  Email

  
	
  Beiten
  Burkhardt

  	
   

  	
  Bernhard Gemmel

  	
   

  	
  Rechtsanwaltsge

  sellschaft mbH

  Bockenheimer

  Anlage 15

  Mozartplatz

  60322 Frankfurt

  am Main

  	
   

  	
  +49-69-

  756095-444

  	
   

  	
  +49-69-

  756095-512

  	
   

  	
  bgemmel@bblaw.de

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dechert
  LLP

  	
   

  	
  Ciaran P. Carvalho

  	
   

  	
  180 Queen

  Victoria Street

  London

  EC4V 4QQ

  	
   

  	
  +44 (0)20 7184 7473

  	
   

  	
   

  	
   

  	
  ciaran.carvalho@dechert. com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Freshfields
  Bruckhaus Deringer

  	
   

  	
  Konrad Schott

  	
   

  	
  Taunusanlage 11

  60329 Frankfurt

  am Main

  Germany

  	
   

  	
  +49 69 27 30 80

  	
   

  	
  +49 69 23 26 64

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GORG

  Partnerschaft von Rechtsanwalten

  	
   

  	
  Dr. Frank Zahn

  	
   

  	
  Tiergarten

  Dreieck

  Klingelhöferstrass

  e5 10785 Berlin

  	
   

  	
  +49 (0)30 884503 168

  	
   

  	
  +49 (0)30 884503 153

  	
   

  	
  fzahn@goerg.de

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GSK
  Gassner Stockmann & Kollegen

  	
   

  	
  Heiko Pertzold

  	
   

  	
  Taunusanlage 21

  D-60325

  Frankfurt am

  Main

  	
   

  	
  +49 (69) 71 00 03 - 66

  	
   

  	
  +49 (69) 71 00 03 - 44

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mayer,
  Brown, Rowe & Maw LLP

  	
   

  	
  Stephen Bower

  	
   

  	
  11 Pilgrim Street

  London

  EC4V 6RW

  	
   

  	
  +44 (0)20 7782 8866

  	
   

  	
   

  	
   

  	
  Stephen.bower@mayerbro nrowe.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Noerr
  Stiefenhofer

  Lutz

  	
   

  	
  Dr. Nadejda Kysel

  	
   

  	
  Friedrichstrasse

  2-6

  60323 Frankfurt

  am Main

  	
   

  	
  +49 (0)69 97 14 77 226

  	
   

  	
  +49 (0)170 926 4972

  	
   

  	
  nadejda.kysel@noerr.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SIBETH
  Partnerschaft Rechtsanwälte Steuerberater Wirtschaftsprüfer

  	
   

  	
  Dr. Michael Grünwald

  	
   

  	
  Oberanger 34-36

  D-80331

  München

  	
   

  	
  +49 (0)89 38 80 8-220

  	
   

  	
  + 49 (0)89 38 80 8 - 202

  	
   

  	
  m.gruenwald@sibeth.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  White &  Case LLP

  	
   

  	
  David Cox

  	
   

  	
  5 Old Broad

  Street

  London

  EC2N 1DW

  	
   

  	
  +44 (0)20 7532 2157

  	
   

  	
   

  	
   

  	
  dcox@whitecase.com

  



 


8

















 


Part 2

Approved Valuers


 


	
  Area

  	
   

  	
  Firm

  	
   

  	
  Contact

  	
   

  	
  Address

  	
   

  	
  Phone

  	
   

  	
  Fax

  	
   

  	
  Email

  
	
  UK
  and

  Germany

  	
   

  	
  Allsops

  	
   

  	
  Martin Angel

  	
   

  	
  27 Soho

  Sq, London 

  W1D 3AY

  	
   

  	
  020 7437 6977

  	
   

  	
  020 7437 8994

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Atis Real Weatheralls

  	
   

  	
  Andrew Skinner

  	
   

  	
  Norfolk House, 31 St James Square, London SW1Y 4JR

  	
   

  	
  020 7338 4340

  	
   

  	
  020 7930 9845

  	
   

  	
  Andrew.skinner@ atisrealweatheralls.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CBRE

  	
   

  	
  Tim Crossley/ John Smith

  	
   

  	
  St Martins Court, 10 Paternoster Row, EC4M 7HP

  	
   

  	
  020 7182 2512

  	
   

  	
  020 7182 2001

  	
   

  	
  Tcrossley-smith@cbhillier.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Colliers CRE

  	
   

  	
  John Phillips

  	
   

  	
  St Michaels House, 1 George Yard, London EC3V 9HL

  	
   

  	
  020 7344 6870

  	
   

  	
  020 7344 6539

  	
   

  	
  Jphillips@collierscre.co.uk

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cushman Wakefield

  	
   

  	
  Rupert Odson

  	
   

  	
  43/45 Portman Square, London W1A 3BG

  	
   

  	
  020 7152 5390

  	
   

  	
  020 7152 5042

  	
   

  	
  Rupert.dodson@ eur.cushwake.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DTZ

  	
   

  	
  Bryn Williams

  	
   

  	
  One Curzon Street, London W1A 5PZ

  	
   

  	
  020 7408 1161

  	
   

  	
  020 7487 5225

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FPD Saville

  	
   

  	
  Ian Melden

  	
   

  	
  20 Grosvenor Hill, Berkeley Square, London

  	
   

  	
  020 7499 8644

  	
   

  	
  020 7495 3773

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jones Lang Lasalle

  	
   

  	
  Jeremy Handley

  	
   

  	
  22 Hanover Square, London W1A 2BN

  	
   

  	
  020 7399 5613

  	
   

  	
  020

  7399 5662

  	
   

  	
  Jeremy.handley@ eu.Joneslanglasalle.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  King Sturge

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Knight Frank

  	
   

  	
  Harry Morten

  	
   

  	
  20 Hanover Square, London W1S 1HZ

  	
   

  	
  020 7861 1202

  	
   

  	
  020 7496 0556

  	
   

  	
  Harry.morten@knightfrank.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Nelson Bakewell

  	
   

  	
  David King

  	
   

  	
  25 Sackville St, W1S

  	
   

  	
  020 7544

  	
   

  	
  020 7544

  	
   

  	
   

  



 


9

















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  3HQ

  	
   

  	
  2008

  	
   

  	
  2222

  	
   

  	
   

  
	
   

  	
   

  	
  Vail Williams

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DTZ

  	
   

  	
  Sara Duncan

  	
   

  	
  One Curzon Street, London W1A 5PZ

  	
   

  	
  020 7643 6518

  	
   

  	
  020 7643 6345

  	
   

  	
  Sara.duncan@dtz.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Knight Frank

  	
   

  	
  David Allen

  	
   

  	
  20 Hanover Sq, London W1S 1HZ

  	
   

  	
  020 7861 1678

  	
   

  	
  020 7495 0556

  	
   

  	
  David.allen@knightfrank.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hoffendahal

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Midlands

  	
   

  	
  GVA Grimley

  	
   

  	
  David Farrow

  	
   

  	
  3 Brindley Place, Birmingham B1 2JB

  	
   

  	
  0121 233 6414

  	
   

  	
  0121 609 8314

  	
   

  	
  David.farrow@ gvagrimley.co.uk

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Knight Frank

  	
   

  	
  Ian Hatfield

  	
   

  	
  89 Colmore Row, Birmingham B3 2BD

  	
   

  	
  0121 233 6414

  	
   

  	
  0121 200 2381

  	
   

  	
  lan.hatfield@knightfrank.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lambert Smith Hampton

  	
   

  	
  Rupert Maude

  	
   

  	
  Regent Arcade House, 19-25 Argyll Street, W1F 7DS

  	
   

  	
  020 7663 8344

  	
   

  	
  020 7414 0866

  	
   

  	
  rmaude@lsh.co.uk

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Scotland

  	
   

  	
  CBRE

  	
   

  	
  Miller Mathieson

  	
   

  	
  7 Castle Street, Edinburgh EH2 3AH

  	
   

  	
  01131 489 7666

  	
   

  	
  0131 489 0111

  	
   

  	
  Miller.mathieson@cbre.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Nelson Bakewell

  	
   

  	
  Will Marchington

  	
   

  	
  Hobart House, 80 Hanover Street, Edinburgh EH2 1EJ

  	
   

  	
  0131 240 0960

  	
   

  	
  0131 240 0969

  	
   

  	
  wmarchington@nelson-bakewell.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  France

  	
   

  	
  DTZ

  	
   

  	
  Martin Betts

  	
   

  	
  43 rue de Villiers, 92523 Neuilly Sur Seine Cedex
  France

  	
   

  	
  00 331 4954 4966

  	
   

  	
  00331 4964 4968

  	
   

  	
  Martin.betts@dtz.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cushman Wakefield

  	
   

  	
  P J Thibault

  	
   

  	
  43/45 Portman Square, London W1A 3BG

  	
   

  	
  020 7152 5190

  	
   

  	
  020 7152 5190

  	
   

  	
  Pl.thibault@eur.cushwake.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shopping
  Centres

  	
   

  	
  Donaldsons

  	
   

  	
  Stuart Cunliffe

  	
   

  	
  48 Warwick Street, London W1B 5NL

  	
   

  	
  020 7534 8426

  	
   

  	
  020 7434 0045

  	
   

  	
  Stuart.cunliffe@knightfrank.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CBRE

  	
   

  	
  Tim Crossley Smith

  	
   

  	
  Kingsley House, 1A

  	
   

  	
  020 7182

  	
   

  	
  020 7182

  	
   

  	
  Tcrossley-smith@cbhillier.com

  



 


10

















 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Wimpole Street W1A 2BN

  	
   

  	
  2512

  	
   

  	
  2001

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hotels

  	
   

  	
  Jones Lang Lasalle

  	
   

  	
  Jeremy Handley

  	
   

  	
  22 Hanover Square, London W1A 2BN

  	
   

  	
  020 7399 5613

  	
   

  	
  020 7399 5662

  	
   

  	
  Jeremy.handley@ eu.joneslanglasalle.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Leisure

  	
   

  	
  Davis Collier Lyons

  	
   

  	
  Trevor Watson

  	
   

  	
  52 Portland Place, London W1B 1NH

  	
   

  	
  020 7299 0700

  	
   

  	
  020 7299 0799

  	
   

  	
  trevorw@daviscofferlyons.co.uk

  



 


3.                         GERMAN SECURITY


 


3.1                   Power of attorney


 


(a)                     The Master
Security Assignment Agreement provides for (i) an agreement between the
Capmark Security Trustee (being the holder of such German Non-Accessory
Collateral as defined in the Master Security Assignment Agreement) and the
Security Trustee, and (ii) that the relevant secured claim(s) and
land charge(s) are identified upon their assignment. By means of an Amendment
Agreement between the Borrower and the Security Trustee, a list containing the
information described in Schedule 3 to the Master Security Assignment Agreement
must be duly completed upon the assignment and transfer of the German
Non-Accessory Collateral. Additionally, in order to perfect a valid transfer of
land charge(s) to the Security Trustee the Capmark Security Trustee and
the Security Trustee must enter into a notarially certified deed of assignment
(noteriell beglaubigte Abtretungserklärung)  with respect to each land charge granted
in favour of the Capmark Security Trustee and to be transferred to the Security
Trustee. In addition, (aa) in case of certificated land charges (Briefgrundschulden), the land charge certificate (Grundschuldbrief)  must be handed over to the Security
Trustee upon receipt by the Capmark Security Trustee, and (bb) in case of
non-certified land charges (Buchgrundschulden), the assignment and transfer must be
registered in the land register for the property encumbered by such land
charge.


 


(b)                    Notwithstanding
the provisions of the Master Security Assignment Agreement as set out at clause
3.1(a) above, the Borrower and the Original Lender have agreed not to
complete such procedure upon the funding of a Secured Property Loan relating to
German Property. Instead, the Borrower and the Capmark Security Trustee shall
grant an irrevocable power of attorney in the form set out in Schedule 1 to the
Original Lender and Security Trustee on the date of this Fifth Amending Deed
(the “Power of Attorney”).


 


(c)                     Such Power of
Attorney may only be used by the Original Lender and/or the Security Trustee at
any time at its discretion in respect of the Secured Property Loan relating to
German Property to (a) execute a notarially certified deed of assignment (notariell beglaubigte Abtretungserklärung)  between the Capmark Security Trustee and
the Security Trustee as required under clause 2.4 of the Master Security
Assignment Agreement, (b) execute any amendment agreement required under
clause 9 of the Master Security Assignment Agreement and (c) do any other
act that the Original Lender and/or the Security Trustee deem necessary to
complete the transfer of the German Security.


 


11

















 


(d)                   If the Original
Lender and/or the Security Trustee sub-delegate the Power of Attorney to a
Substitute (as defined in the Power of Attorney), the Original Lender and/or
the Security Trustee shall give notice to the Borrower and the Capmark Security
Trustee of such sub-delegation.


 


3.2       Land
charges


 


(a)                    Upon the
funding of any Secured Property Loan relating to German Property, the Borrower
covenants to deposit the land charge deeds and certificates, if any, granted
under the Secured Property Loan with the Original Lender within five Business
Days of receipt by it.


 


(b)                   Upon the
repayment in full of a Secured Property Loan relating to German Property, the
Original Lender covenants to return the relevant land charge deeds and
certificates, if any, to the Borrower.


 


3.3       Perfection
of German Security


 


(a)                    The Original
Lender shall retain its right to perfect the German Security at any time.


 


(b)                   Prior to
perfecting the German Security at any time, the Original Lender shall give
notice to the Borrower, unless in the Original Lender’s sole and absolute
opinion, to give such prior notice could be detrimental to the Original Lender.


 


(c)                    Without
prejudice to clauses 3.3(a) and 3.3(b) above which shall remain
applicable, if the Secured Property Loan is still outstanding six months after
the relevant Utilisation Date, the Original Lender shall be entitled to give
five Business Days’ notice to the Borrower prior to perfecting the German
Security. The Borrower may then decide to repay immediately the whole of the
relevant Secured Property Loan. If the Borrower does not repay the whole of the
relevant Secured Property Loan immediately upon receiving such notice then the
Original Lender shall perfect such German Security.


 


4.         COSTS
AND EXPENSES


 


The
Borrower shall, within two Business Days of demand, reimburse the Agent and the
Security Trustee for the amount of all reasonable costs and expenses (including
legal fees) (and any VAT payable in respect of them) reasonably incurred by the
Agent or the Security Trustee in responding to, evaluating, negotiating or
complying with this Fifth Amending Deed, the Finance Documents and any other
relevant documents.


 


5.         REMEDIES
AND WAIVERS


 


No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under this Fifth Amending Deed shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or remedy. The
rights and remedies provided in this Fifth Amending Deed are cumulative and not
exclusive of any rights or remedies provided by law.


 


6.         PARTIAL
INVALIDITY


 


If, at
any time, any provision of this Fifth Amending Deed is or becomes Illegal,
invalid or unenforceable in any respect under any law of any Jurisdiction, neither
the legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of


 


12

















 


such
provision under the law of any other jurisdiction will in any way be affected
or impaired.


 


7.         FURTHER
ASSURANCE


 


The
Borrower shall at its own expense, do all such acts and things as are necessary
or desirable to give effect to the amendments effected or to be effected
pursuant to this Fifth Amending Deed.


 


8.         COUNTERPARTS


 


This Fifth
Amending Deed may be executed in any number of counterparts, and this has the
same effect as if the signatures on the counterparts were on a single copy of
this Fifth Amending Deed.


 


9.         GOVERNING
LAW - JURISDICTION


 


9.1       Governing
Law


 


This
Fifth Amending Deed is governed by and shall be construed in accordance with
English Law.


 


9.2       Jurisdiction


 


(a)                    The courts of
England have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Fifth Amending Deed (including a dispute regarding the
existence, validity or termination of this Fifth Amending Deed) (a “Dispute”).


 


(b)                   The Parties
agree that the courts of England are the most appropriate and convenient courts
to settle Disputes and accordingly no Party will argue to the contrary.


 


(c)                    This Clause 9
is for the benefit of the Finance Parties only. As a result, no Finance Party
shall be prevented from taking proceedings relating to a Dispute in any other
courts with jurisdiction. To the extent allowed by law, the Finance Parties may
take concurrent proceedings in any number of jurisdictions.


 


10.       SERVICE
OF PROCESS


 


Without
prejudice to any other mode of service allowed under any relevant law, the
Borrower and the Guarantor each:


 


(a)                    irrevocably
appoints Capmark UK Limited, Norfolk House, 31 St James’s Square, London SW1Y
4JU as its agent for service of process in relation to any proceedings before
the English courts in connection with any Finance Document; and


 


(b)                   agrees that
failure by a process agent to notify the Borrower or, as the case may be, the
Guarantor of the process will not invalidate the proceedings concerned.


 


13














 


IN WITNESS WHEREOF this Fifth Amending Deed has been executed and
delivered as a deed on the date stated at the beginning.


 


EXECUTED AS A DEED BY


 


	
  The
  Borrower

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Common Seal of

  	
   

  	
  )

  
	
  CAPMARK AB NO. 2 LIMITED]

  	
   

  	
  )

  	
   /s/ [Illegible]

  
	
  was
  affixed to this Fifth Amending Deed

  	
   

  	
  )

  
	
  in
  the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Director:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Secretary:

  	
   

  	
   

  	
   /s/ [Illegible]

  
	
   

  	
   

  	
   

  
	
  The Original Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed
  by 

  	
  [Illegible]

  	
  and

  	
   

  	
  )

  	
   /s/ [Illegible]

  
	
                         ,
  duly authorised for and on behalf of

  	
   

  	
  )

  
	
  IXIS CORPORATE & INVESTMENT BANK, LONDON
  BRANCH

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  The Guarantor

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed by

  	
  [Illegible], 

  	
  duly authorised for and
  on belalf of 

  	
   

  	
  )

  
	
  CAPMARK FINANCIAL GROUP INC.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  The Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed by 

  	
  [Illegible]

  	
  and

  	
   

  	
  )

  	
   /s/ [Illegible]

  
	
                         ,
  duly authorised for and on behalf of

  	
   

  	
  )

  
	
  IXIS CORPORATE & INVESTMENT BANK, LONDON
  BRANCH

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
  The Security Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed
  by
                                          ,
  duly authorised for and

  	
   

  	
  )

  	
   /s/ Deanne Frith

  
	
  on behalf of THE
  BANK OF NEW YORK

  	
   

  	
  ) Assistant Treasurer

  
							



 


 


 


14

















 


 


 


	
  The Capmark Security Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  The Common Seal of

  	
   

  	
  )

  	
   /s/
  [Illegible]

  
	
  CAPMARK
  BANK EUROPE P.L.C.

  	
   

  	
  )

  
	
  was affixed to this Fifth
  Amending Deed

  	
   

  	
  )

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Director:

  	
   

  	
   

  	
   /s/
  [Illegible]

  
	
   

  	
   

  	
   

  
	
  Secretary:

  	
   

  	
   

  



 


 


15