Exhibit 10.36


 


	
  DATED

  	
  15 OCTOBER 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


 




 





 


SIXTH AMENDING DEED RELATING TO THE

£750,000,000 REVOLVING CREDIT AGREEMENT


 




 





 


Lovells


 


Ref.: PASAL/SAC/760079

S1009.00453


 


Lovells LLP, 6, avenue Kléber, 75116 Paris


 

















 


TABLE OF CONTENTS


 


	
  CLAUSE

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND INTERPRETATION

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  AMENDMENTS TO THE FACILITY
  AGREEMENT

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  CONDITIONS PRECEDENT

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  COSTS AND EXPENSES

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  REMEDIES AND WAIVERS

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  PARTIAL INVALIDITY

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  FURTHER ASSURANCE

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  COUNTERPARTS

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  GOVERNING LAW - JURISDICTION

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  SERVICE OF PROCESS

  	
   

  	
  5

  



 

















 


 


THIS
SIXTH AMENDING DEED is made and delivered on 15 October 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 411 Borel Avenue, Suite 320,
San Mateo, CA 94402 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”);  and


 


(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”).


 


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 and a fifth
amending deed as of 30 May 2007, 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, the
Original Lender has agreed to increase, on a temporary basis, the Total
Commitments under the Facility from £500,000,000 (the “Original Total Commitments”) to
£750,000,000 for the period from (and including) the date of this Sixth
Amending Deed to (and including) 1 December 2007, with a corresponding increase
in the Margin and the introduction of a Utilisation Fee (as defined below) for
any Loan which causes the Original Total Commitments to be exceeded. The
Original Lender has agreed to increase the Total Commitments to be exceeded
under the terms set out herein. The Original Lender has agreed to increase the
Total Commitments herein on the condition that the aggregate of (i) US$
borrowings over US$ 150,000,000 and (ii) the Sterling borrowings over
£500,000,000 shall not at any time exceed the equivalent of £250,000,000.


 


(D)                  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.


 


(E)                    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 Sixth 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 Sixth Amending Deed to:


 


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


 


(ii)                     each of
Borrower and the Agent agrees that this Sixth 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 Sixth 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 Sixth Amending Deed.


 


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


 


2.                          AMENDMENTS TO THE FACILITY AGREEMENT


 


The Parties hereto agree
that, with effect from the date of this Sixth Amending Deed, the Facility Agreement
shall be amended as follows:


 


(a)                    In Clause 1.1
(Definitions) as of 5 October 2007, the definition of “Margin” shall be
amended as follows: the number “0.5 per cent. per annum” shall be replaced with
“0.7 per cent. per annum”.


 


(b)                   Notwithstanding
the provisions of the Facility Agreement:


 


(i)                        all
references to “Commitments” or “Total Commitments” shall be to £750,000,000 for
the period from (and including) the date of this Sixth Amending Deed to (and
including) 1 December 2007;


 


(ii)                     the Borrower
may only make a Utilisation Request in respect of a Loan which causes the
Original Total Commitments to be exceeded up to (and including) 1 December 2007,
such Loans to be referred to  as “New Loans”
in this Sixth Amending Deed;


 


 


2

















 


(iii)                  the “Availability
Period” in respect of New Loans which cause the Original Total Commitments to
be exceeded shall mean the period from and including the date of this Sixth
Amending Deed to (and including) 1 February 2008;


 


(iv)                 if the Borrower
makes an Utilisation Request in respect of a New Loan which causes the Original
Total Commitments to be exceeded, it shall pay to the Lenders 0.35 per cent of
the relevant New Loan made on the relevant Utilisation Date (the “Utilisation Fee”),  which Utilisation Fee shall be deducted by
each Lender from its participation in each such New Loan on the relevant
Utilisation Date; and


 


(v)                    notwithstanding
any other terms of this Sixth Amending Deed and reference to New Loans, the
Original Lender confirms that the amount borrowed in excess of £500,000,000 at
the end of the Availability Period shall become due and payable on 1 November 2008,
being the Termination Date relating to such advances.


 


(c)                    Clause 4.4
(Maximum number of Loans and limits on the Commitment) shall be deleted and
replaced by the following:


 


“The
Borrower may not deliver an Utilisation Request if as a result of the proposed
Utilisation,  any of the limits on
the utilisation of the Commitment described in clause 4.5 will be breached.”


 


(d)                   Clause 4.5 (a) (German,
French, Italian and Non-standard Scottish Secured Property Loans) shall be
deleted and replaced by the following:


 


“4.5              French, Italian and Non-standard Scottish Secured
Property Loans


 


(a)                    Although the
provisions of this Agreement relating to Secured Property Loans (including the
Secured Property Loan Eligibility Criteria and the representations and
warranties referred to or set out in
clause 16.21 (Secured Property Loans))  are drafted so as to relate to Standard
Scottish Secured Property Loans and Secured Property Loans relating to English
and/or Welsh and/or German Properties, it is the intention of the Parties that,
subject to the Lenders’ consent, the Facility is to be available to fund or
refinance the making or acquisition by the Borrower of Secured Property Loans
relating to Non-standard Scottish Secured Property Loans and/or French and/or
Italian Properties also, subject to the limits set out below:


 


(i)                        no more
than £400,000,000 of the Commitment may be allocated to Scottish Secured
Property Loans, Non-standard Scottish Secured Property Loans and Secured
Property Loans relating to English and/or Welsh Properties;


 


(ii)                     no more than
£150,000,000 of the Commitment may be allocated to Secured Property Loans
relating to French Properties; and


 


(iii)                  no more than
£100,000,000 of the Commitment may be allocated to Secured Property Loans
relating to Italian Properties.”


 


 


3

















 


(e)                    Clause 18.4
(Disposals) shall be deleted and replaced by the following:


 


“The
Borrower shall not, and shall not agree to, enter into a single transaction or
a series of transactions (whether related or not and whether voluntary or involuntary)
to sell, lease, transfer or otherwise dispose of any asset other than:


 


(i)                        any
disposal constituted by or made pursuant to the Finance Documents;


 


(ii)                     a disposal of
any part of a Secured Property Loan which is not refinanced in full under this
Agreement where (a) the Borrower has received the prior written consent of
the Agent on the terms of any inter-creditor arrangements between the Borrower
and the purchaser of such part of such Secured Property Loan and (b) the
proceeds from such disposal shall be allocated on a pro rata basis to the
repayment of the Loan relating to such Secured Property Loan and the repayment
of the Subordinated Advance (as defined in the Subordinated Loan Agreement) in
respect of the Secured Property Loan;


 


(iii)                  a disposal of a
Non-approved Secured Property Loan and related Non-approved Secured Property
Loan Assets; and


 


(iv)                 any
securitisation, sale or refinancing of Relevant Secured Property Loans
(together with any related Collateral Security), provided that any Loan made to
fund or refinance any Relevant Secured Property Loan which is securitised, sold
or refinanced is prepaid out of the proceeds of the securitisation, sale or
refinancing pursuant to clause 7.5 (Voluntary
prepayment).”


 


3.         CONDITIONS PRECEDENT


 


The
Borrower shall, on the date of this Sixth Amending Deed, provide to the Agent:


 


(a)                    a legal
opinion from the English legal counsel to the Borrower (Mayer Brown
International LLP) substantially in the form approved by the Agent and the
Security Trustee prior to signing the Sixth Amending Deed;


 


(b)                   a legal opinion
from the Irish legal counsel to the Borrower (McCann Fitzgerald) substantially
in the form approved by the Agent and the Security Trustee prior to signing the
Sixth Amending Deed;


 


(c)                    a solvency
certificate for the Borrower signed by an officer of the Borrower effective as
at the date of the Sixth Amending Deed;


 


(d)                   a copy of a
resolution of the board of directors of the Borrower evidencing the authority
of the person(s) who execute the Finance Documents on its behalf; and


 


(e)                    a specimen of
the signature of the person referred to in Clause 3(d).


 


 


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 Sixth Amending Deed, the Finance Documents and any other
relevant documents.


 


 


4

















 


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 Sixth 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 Sixth 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 Sixth 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 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 Sixth
Amending Deed.


 


8.                          COUNTERPARTS


 


This Sixth 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 Sixth
Amending Deed.


 


9.                          GOVERNING LAW - JURISDICTION


 


9.1                    Governing Law


 


This Sixth 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 Sixth Amending Deed (including a dispute regarding the
existence, validity or termination of this Sixth 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:


 


5

















 


(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.


 


6

















 


 


IN
WITNESS WHEREOF this Sixth 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

  	
  )

  	
   

  	
   

  
	
  was affixed to this Sixth
  Amending Deed

  	
  )

  	
   

  	
   

  
	
  in the presence of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Director:

  	
   

  	
  /s/ [Illegible]

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  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                      ,
  duly authorised for and on behalf of

  	
  )

  	
   /s/ [Illegible]

  	
   

  
	
  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

  	
  Vincent Giraud

  	
  Assistant Vice President, duly authorised for and

  	
  )

  	
   /s/
  [Illegible]

  	
   

  
	
  on behalf of THE
  BANK OF NEW YORK

  	
  )

  	
   

  	
   

  
							



 


 


7