Exhibit 10.33


 


Dated 31 May 2005 as amended by the First Amending Deed on 26 August 2005,
the Second Amending Deed on 30 September 2005, the Third Amending Deed on
30 November 2005, the Fourth Amending Deed on 23 March 2006, and
as amended and restated on 30 May 2006


 




	
   

  	
   

  
	
  (1)

  	
  CAPMARK AB
  NO. 2 LIMITED as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
  (2)

  	
  THE FINANCIAL
  INSTITUTION listed within as Original Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
  (3)

  	
  CAPMARK
  FINANCIAL GROUP INC. as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (4)

  	
  IXIS
  CORPORATE & INVESTMENT BANK, LONDON BRANCH as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (5)

  	
  THE BANK OF
  NEW YORK as Security Trustee

  
	
   

  	
   

  
	
   

  	
   

  






 




	
  REVOLVING
  CREDIT AGREEMENT 

  RELATING TO A £500,000,000 REVOLVING LOAN FACILITY

  






 


 


 


 


 


 




	
  

  
	
  Ref.: PASAL/SCEH/SAC/637730.11

  
	
  S1009.00453

  






 

















 


TABLE OF CONTENTS


 


 


 


	
  Clause

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS AND INTERPRETATION

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  THE FACILITY

  	
  22

  
	
   

  	
   

  	
   

  
	
  3.

  	
  PURPOSE

  	
  23

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CONDITIONS OF UTILISATION

  	
  24

  
	
   

  	
   

  	
   

  
	
  5.

  	
  UTILISATION

  	
  26

  
	
   

  	
   

  	
   

  
	
  6.

  	
  REPAYMENT

  	
  29

  
	
   

  	
   

  	
   

  
	
  7.

  	
  PREPAYMENT AND CANCELLATION

  	
  29

  
	
   

  	
   

  	
   

  
	
  8.

  	
  INTEREST

  	
  33

  
	
   

  	
   

  	
   

  
	
  9.

  	
  INTEREST PERIODS

  	
  34

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CHANGES TO THE CALCULATION OF INTEREST

  	
  35

  
	
   

  	
   

  	
   

  
	
  11.

  	
  TAX GROSS-UP AND INDEMNITIES

  	
  37

  
	
   

  	
   

  	
   

  
	
  12.

  	
  INCREASED COSTS

  	
  41

  
	
   

  	
   

  	
   

  
	
  13.

  	
  OTHER INDEMNITIES

  	
  42

  
	
   

  	
   

  	
   

  
	
  14.

  	
  MITIGATION BY THE LENDERS

  	
  43

  
	
   

  	
   

  	
   

  
	
  15.

  	
  COSTS, EXPENSES AND FEES

  	
  43

  
	
   

  	
   

  	
   

  
	
  16.

  	
  REPRESENTATIONS

  	
  45

  
	
   

  	
   

  	
   

  
	
  17.

  	
  INFORMATION UNDERTAKINGS

  	
  51

  
	
   

  	
   

  	
   

  
	
  18.

  	
  GENERAL UNDERTAKINGS

  	
  55

  
	
   

  	
   

  	
   

  
	
  19.

  	
  EVENTS OF DEFAULT

  	
  60

  
	
   

  	
   

  	
   

  
	
  20.

  	
  CHANGES TO THE LENDERS

  	
  64

  
	
   

  	
   

  	
   

  
	
  21.

  	
  NO CHANGES TO THE BORROWER

  	
  67

  
	
   

  	
   

  	
   

  
	
  22.

  	
  ROLE OF THE AGENT

  	
  67

  
	
   

  	
   

  	
   

  
	
  23.

  	
  CONDUCT OF BUSINESS BY THE FINANCE PARTIES

  	
  71

  
	
   

  	
   

  	
   

  
	
  24.

  	
  SHARING AMONG THE FINANCE PARTIES

  	
  72

  
	
   

  	
   

  	
   

  
	
  25.

  	
  PAYMENT MECHANICS

  	
  74

  
	
   

  	
   

  	
   

  
	
  26.

  	
  SET-OFF

  	
  76

  
	
   

  	
   

  	
   

  
	
  27.

  	
  COMMUNICATIONS

  	
  76

  
	
   

  	
   

  	
   

  
	
  28.

  	
  CALCULATIONS AND CERTIFICATES

  	
  78

  
	
   

  	
   

  	
   

  
	
  29.

  	
  PARTIAL INVALIDITY

  	
  78

  
	
   

  	
   

  	
   

  
	
  30.

  	
  REMEDIES AND WAIVERS

  	
  78

  
	
   

  	
   

  	
   

  
	
  31.

  	
  AMENDMENTS AND WAIVERS

  	
  78

  
	
   

  	
   

  	
   

  
	
  32.

  	
  COUNTERPARTS

  	
  79

  
	
   

  	
   

  	
   

  
	
  33.

  	
  GOVERNING LAW

  	
  80

  
	
   

  	
   

  	
   

  
	
  34.

  	
  ENFORCEMENT

  	
  80

  
	
   

  	
   

  	
   

  



 

















 


	
  SCHEDULE 1   -

  	
  THE ORIGINAL LENDER

  	
  83

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 2   -

  	
  CONDITIONS
  PRECEDENT

  	
  84

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 3   -

  	
   REQUESTS

  	
  89

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 4   -

  	
  MANDATORY
  COST FORMULAE

  	
  92

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 5   -

  	
  FORM OF TRANSFER
  CERTIFICATE

  	
  95

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 6   -

  	
   INITIAL SECURED PROPERTY LOAN PACKAGE

  	
  97

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 7   -

  	
  SECURED
  PROPERTY LOAN ACTUAL DOCUMENTATION

  	
  98

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 8   -

  	
  SECURED
  PROPERTY LOAN INFORMATION

  	
  99

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 9   -

  	
  REPRESENTATIONS AND WARRANTIES OF THE BORROWER REGARDING THE SECURED
  PROPERTY LOANS

  	
  100

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 10  -

  	
  SECURED
  PROPERTY LOAN ELIGIBILITY CRITERIA

  	
  107

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 11  -

  	
  NON-APPROVED SECURED PROPERTY LOAN ELIGIBILITY CRITERIA

  	
  109

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 12  -

  	
  RELEVANT
  ADVANCE PERCENTAGES

  	
  111

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 13  -

  	
  LIST OF APPROVED LAWYERS AND APPROVED VALUERS

  	
  112

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


ii

















 


THIS AGREEMENT is dated 31 May 2005
as amended by the First Amending Deed on 26 August 2005, the Second
Amending Deed on 30 September 2005, the Third Amending Deed on
30 November 2005, the Fourth Amending Deed on 23 March 2006, and
as amended and restated on 30 May 2006 (this “Agreement”),
and made between:


 




	
  (1)

  	
  CAPMARK
  AB NO. 2 LIMITED (formerly known as GMACCM Asset-Backed 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)

  	
  THE
  FINANCIAL INSTITUTION listed in schedule 1 (The
  Original Lender) as a Lender (the “Original
  Lender”);

   

  
	
  (3)

  	
  CAPMARK
  FINANCIAL GROUP INC. (formerly known as GMAC Commercial Holding
  Corp.) 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”); 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 (the “First Amending Deed”), a second amending deed on 30 September 2005
  (the “Second Amending Deed”), a third
  amending deed on 30 November 2005 (the “Third
  Amending Deed”), and a fourth amending deed on 23 March 2006
  (the “Fourth Amending Deed”), together, the
  “Original Facility Agreement”.

  
	
   

  	
   

  
	
  (B)

  	
  The
  Borrower, the Original Lender, the Guarantor, the Agent and the Security
  Trustee have agreed on and from the Effective Date to amend and restate the
  Original Facility Agreement to permit, among other things, the financing of
  Secured Property Loans relating to German Property, and have agreed that the
  Original Facility Agreement shall be referred to in such amended and restated
  form as this Agreement.

  






 


IT IS AGREED THAT:                       


 


SECTION 1


INTERPRETATION


 




	
  1.

  	
  DEFINITIONS
  AND INTERPRETATION

  
	
   

  	
   

  
	
  1.1

  	
  Definitions

  
	
   

  	
   

  
	
   

  	
  In
  this Agreement:

  
	
   

  	
   

  
	
   

  	
  “Account Bank” means Wachovia Bank NA acting through its
  London branch at 1 Plantation Place, 30 Fenchurch Street, London EC3M 3BD or
  such other bank as the Borrower may designate as the Account Bank with the
  prior written approval of the Agent.

  






 

















 




	
  “Act of Insolvency” means with respect to any person:  

  
	
   

  	
   

  
	
  (a)

  	
  that
  person is unable to or admits inability to pay its debts as they fall due;

  
	
   

  	
   

  
	
  (b)

  	
  that
  person suspends making payments on all or any class of its debts or announces
  an intention to do so, or a moratorium is declared in respect of any of its
  indebtedness or that person, by reason of financial difficulties, enters into
  an agreement with its creditors generally with a view to the readjustment or
  rescheduling of any of its indebtedness or makes any composition, assignment
  or other arrangement with its creditors generally;

  
	
   

  	
   

  
	
  (c)

  	
  a
  meeting of that person is convened for the purpose of considering any
  resolution for (or to petition for) its winding-up, bankruptcy, court
  protection or administration or any such resolution is passed;

  
	
   

  	
   

  
	
  (d)

  	
  any
  other step (including petition, proposal or convening a meeting) is taken
  with a view to the court protection, rehabilitation, administration,
  custodianship, liquidation, winding-up or dissolution of that person or any
  other insolvency proceedings involving that person, which step:

  
	
   

  	
   

  
	
   

  	
  (i)

  	
  is
  consented to, or not timely contested, by that person;

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  is
  not discharged or withdrawn within 60 days; or

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  results
  in the entry of an order for relief, an appointment referred to in paragraph (e) of
  this definition, the issuance of a protective decree or the entry of any
  order having similar effect;

  
	
   

  	
   

  	
   

  
	
  (e)

  	
  any
  liquidator, examiner, trustee in bankruptcy, judicial custodian, compulsory
  manager, receiver, administrative receiver, administrator or the like is
  appointed in respect of that person or any substantial part of its assets;

  
	
   

  	
   

  	
   

  
	
  (f)

  	
  any
  steps are taken to hold that person liable for the whole or any part of the
  debts of a Related Company or any contribution order is made under the Irish
  Companies Acts (including s140 Irish Companies Act 1990) or any analogous
  legislation with respect to that person or any notice is received by any
  third party in relation to that person under s1002 Irish Taxes Consolidation
  Act, 1997 or any analogous legislation, which step, order or notice:

  
	
   

  	
   

  	
   

  
	
   

  	
  (i)

  	
  is
  consented to, or not timely contested, by that person; or

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  is
  not satisfied, discharged or withdrawn within 60 days;

  
	
   

  	
   

  	
   

  
	
  (g)

  	
  the
  directors of that person request the appointment of a liquidator, examiner,
  trustee in bankruptcy, judicial custodian, compulsory manager, receiver,
  administrative receiver, administrator or the like;

  
	
   

  	
   

  	
   

  
	
  (h)

  	
  any
  steps are taken to enforce any Security over any material part of the assets
  of that person; or

  
	
   

  	
   

  	
   

  
	
  (i)

  	
  any
  governmental authority or agency or any person, agency or entity acting or
  purporting to act under governmental authority shall have taken any action to
  condemn, seize or appropriate, or to assume custody or control of, all or any
  substantial part of the assets of that person, or shall have taken any action
  to 

  






 


2

















 




	
   

  	
  displace
  the management of that person or to curtail its authority in the conduct of
  the business of that person.

  
	
   

  	
   

  	
   

  
	
  “Administration Agreement”  means
  the management and agency services agreement dated 31 May 2005 between (1) the
  Bank and (2) the Borrower.

  
	
   

  	
   

  	
   

  
	
  “Advance Amount”  means, in
  respect of a Relevant Secured Property Loan, the principal amount outstanding
  under such Secured Property Loan on the relevant Utilisation Date.

  
	
   

  	
   

  	
   

  
	
   “Affiliate”  means, in relation to any person, a Subsidiary of that
  person or a Holding Company of that person or any other Subsidiary of that
  Holding Company.

  
	
   

  	
   

  	
   

  
	
  “Agent’s Spot Rate of Exchange”  on
  any day means the Agent’s spot rate of exchange for the purchase of Euro with
  Sterling in the London foreign exchange market at or about 11 a.m. on
  that day.

  
	
   

  	
   

  	
   

  
	
  “Aggregate Secured Property Loan Value” means, at any time,
  the aggregate of the Secured Property Loan Value at that time of the then
  outstanding Relevant Secured Property Loans.

  
	
   

  	
   

  	
   

  
	
  “Agreed Terms”  means the
  terms agreed between the Borrower, the Agent and the Security Trustee.

  
	
   

  	
   

  	
   

  
	
  “Amortisation Period”  means the
  period from and excluding the final day of the Availability Period to and
  including the day nine months after that (or, if that is not a Business Day,
  the immediately following Business Day).

  
	
   

  	
   

  	
   

  
	
  “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.

  
	
   

  	
   

  	
   

  
	
  “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.

  
	
   

  	
   

  	
   

  
	
  “Assignment Deed” in relation to a Secured Property Loan
  acquired or to be acquired by the Borrower means the deed or other document
  pursuant to which it is or is to be transferred to the Borrower.

  
	
   

  	
   

  	
   

  
	
  “Authorisation” means an authorisation, consent, approval,
  resolution, licence, exemption, filing, notarisation, notification or
  registration.

  
	
   

  	
   

  	
   

  
	
  “Availability Period” means, unless extended pursuant to
  clause 2.2 (Extension of the Availability Period),
  the period from and including the Effective Date to and excluding the date
  falling twelve months after the date of this Agreement (or, if that is not a
  Business Day, the immediately preceding Business Day).

  
	
   

  	
   

  	
   

  
	
  “Available Commitment” means, at any time in relation to
  the Facility and a Lender, that Lender’s Commitment under the Facility at
  that time, minus:  

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  the
  Sterling Amount of its participation in any outstanding Loans under the
  Facility; and

  






 


3

















 




	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  in
  relation to a proposed Utilisation, the Sterling Amount of its participation
  in any Loans that are due to be made under the Facility on or before the
  proposed Utilisation Date;

  
	
   

  	
   

  	
   

  
	
   

  	
  but
  adding back

  
	
   

  	
   

  	
   

  
	
   

  	
  (c)

  	
  the
  Sterling Amount of its participation in any Loan if and to the extent that it
  is due to be repaid or prepaid on or before the proposed Utilisation Date.

  
	
   

  	
   

  	
   

  
	
  “Available Facility” means the aggregate from time to time
  of the Available Commitments of the Lenders.

  
	
   

  	
   

  	
   

  
	
  “Bank” means Capmark Bank Europe p.l.c.

  
	
   

  
	
  “Base Aggregate Secured Property Loan Value” means, at any
  time, the aggregate of the Secured Property Loan Values of the outstanding
  Relevant Secured Property Loans immediately following the then most recent
  Utilisation, less the aggregate of any prepayments made since that
  Utilisation.

  
	
   

  
	
  “Borrower Accounts” means the Borrower Euro Account and the
  Borrower Sterling Account.

  
	
   

  
	
  “Borrower Euro Account” means the account of the Borrower
  with the Account Bank numbered 05990166, or such other account as the
  Borrower may designate as the Borrower Euro Account with the prior consent of
  the Agent and the Security Trustee.

  
	
   

  
	
  “Borrower  Sterling  Account” means the account of the Borrower with the
  Account Bank numbered 05990036, or such other account as the Borrower may
  designate as the Borrower Sterling Account with the prior written consent of
  the Agent and the Security Trustee.

  
	
   

  
	
  “Borrower  Accounts Agreement” means the account agreement dated 31 May 2005,
  as amended and restated on 30 May 2006, between the Borrower, the
  Account Bank, the Servicer and the Security Trustee relating to the Borrower
  Accounts and the CSA Account.

   

  
	
   

  
	
  “Break Costs” means the amount (if any) by which:

  
	
   

  
	
  (a)

  	
  the
  interest which the relevant Lender should have received for the period from
  the date of receipt of all or any part of its participation in a Loan or
  Unpaid Sum to the last day of the current Interest Period in respect of that
  Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid
  on the last day of that Interest Period;

  
	
   

  	
   

  
	
   

  exceeds:

  
	
   

  	
   

  
	
  (b)

  	
  the amount which the Lender would be able to
  obtain by placing an amount equal to the principal amount or Unpaid Sum
  received by it on deposit with a leading bank in the London interbank market
  or the European interbank market (as applicable) for a period starting on the
  Business Day following receipt or recovery and ending on the last day of the
  current Interest Period.

  
	
   

  	
   

  
	
  “Building Insurance Policy”  means
  a building insurance policy taken out by the relevant Secured Property Loan
  Borrower with respect to a Property.

  
				






 


4

















 




	
   

  	
   

  
	
  “Business Day” means a day (other than a Saturday or
  Sunday) on which banks are open for general business in London and Dublin,
  and (in relation to any date for payment or purchase of Euro) any TARGET Day.

  
	
   

  	
   

  
	
  “Capmark Credit Paper” means, in respect of each proposed
  Secured Property Loan, the relevant credit paper, in form and substance
  satisfactory to the Agent, prepared by or on behalf of the Borrower and
  provided to the Agent for the purposes of the Lenders’ internal credit
  committees.

  
	
   

  
	
  “Certificate of/Report on/Confirmation of Title” means a
  certificate of or, as the case may be, report on title or any other form of
  confirmation of title given by an Approved Lawyer or, in the case of Secured
  Property Loans relating to German Property, the relevant notary, in respect
  of a Property, being a Secured Property Loan Standard Document.

  
	
   

  
	
  “Closing Date” means, in respect of a Secured Property Loan
  or, as the case may be, a Non-approved Secured Property Loan the date on
  which that Secured Property Loan or, as the case may be, a Non-approved
  Secured Property Loan is or is to be made or acquired by the Borrower.

  
	
   

  
	
  “Collateral Agreement(s)” means, in relation to a Secured
  Property Loan, 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 and includes, where the context permits, the Security
  (which for the avoidance of doubt will comprise Collateral Security) created
  by any of those deeds or agreements.

  
	
   

  
	
  “Collateral Security” means, in relation to any Secured
  Property Loan, the Security granted by the relevant Secured Property Loan
  Borrower pursuant to the relevant Collateral Agreement(s), together with any
  associated rights and Security (including, for the avoidance of doubt, all
  right, title, interest and benefit in and under the Secured Property Loan and
  its Collateral Security, including any guarantee, the Insurance Policies
  insofar as they relate to the Secured Property Loan and any other assignment,
  assignation, notification, deposit, pledge, lien or other Security which may
  be effected in connection with the securing of the relevant Secured Property
  Loan or any other agreement or arrangement having a similar effect (together
  with any legal opinions addressed to the Borrower in relation to the relevant
  Secured Property Loan and its Collateral Security)).

  
	
   

  
	
  “Commitment” means:

  
	
   

  
	
  (a)

  	
  in
  relation to the Original Lender, the amount set opposite its name under the
  heading “Commitment” in schedule 1 (The Original Lender),
  or the equivalent Sterling Amount in Euro, and the amount of any other
  Commitment transferred to it under this Agreement; and

  
	
   

  	
   

  
	
  (g)

  	
  in
  relation to any other Lender, the amount of any Commitment transferred to it
  under this Agreement,

  
	
   

  	
   

  
	
  to the extent not cancelled, reduced or transferred by it
  under this Agreement.

  






 


5

















 




	
  “CSA Account”  means the account of the Borrower opened or to be opened
  with the Account Bank for the purpose of holding collateral posted by the
  Swap Counterparty pursuant to the credit support annex which forms part of
  the Master Swap Agreement, or such other account as the Borrower may
  designate as the CSA Account with the prior written consent of the Agent and
  the Security Trustee.

  
	
   

  
	
  “Debenture” means the debenture dated 31 May 2005,
  as amended and restated on 30 May 2006 between, among others, the
  Borrower and the Security Trustee.

  
	
   

  
	
  “Default” means an Event of Default or Potential Event of
  Default.

  
	
   

  
	
  “Effective Date” means 30 May 2006.

  
	
   

  
	
  “Encumbrance” means any mortgage or sub-mortgage, standard
  security, land charge  (grundschuld), fixed or floating charge or sub-charge,
  pledge, lien or assignment or assignation by way of security or subject to a
  proviso for redemption, retention of title or other security interest of any
  kind and any agreement or arrangement having substantially the same economic
  or financial effect as any of the foregoing (including any “hold back” or
  “flawed asset” arrangement).

  
	
   

  
	
  “Enforcement Notice” means a notice given by the Agent
  pursuant to clause 19.15 (Acceleration).

  
	
   

  
	
  “ERV” means the estimated rental value of a Property as
  defined in the then current Royal Institution of Chartered Surveyors
  Appraisal and Valuation Manual or as established for German Property in
  accordance with Section 16 Mortgage Bond Act (Pfandbriefgesetz)  dated 22 May 2005 and related regulations (or their
  successor from time to time) provided that where it relates to future rental
  values it shall be based on the assumptions outlined in the relevant Secured
  Property Loan Actual Documentation.

  
	
   

  
	
  “EURIBOR”  means, in relation to any Loan in Euro and an Interest
  Period:

  
	
   

  
	
  (a)

  	
  the
  applicable Screen Rate; or

  
	
   

  	
   

  
	
  (b)

  	
  (if
  no Screen Rate is available for the Interest Period) the arithmetic mean of
  the rates (rounded upwards to four decimal places) as supplied to the Agent
  at its request, quoted by the Reference Banks to leading banks in the
  European interbank market,

  
	
   

  	
   

  
	
  (c)

  	
  at
  or about 11 a.m. on the Quotation Date for the offering of deposits in
  Euro for a period comparable to the Interest Period of the relevant Loan.

  
	
   

  	
   

  
	
  “Euro” means
  the common currency adopted by the Participating Member States.

  
	
   

  
	
  “Event of Default” means any event or circumstance
  specified as such in clause 19 (Events of Default).

  
	
   

  
	
  “Facility” means the revolving loan facility made available
  under this Agreement as described in clause 2 (The
  Facility).

  
	
   

  
	
  “Facility Office” means the office or offices notified by a
  Lender to the Agent in writing on or before the date it becomes a Lender (or,
  following that date, by not less than 10 Business Days’ written notice) as
  the office or offices through which it will perform its obligations under
  this Agreement.

  
	
   

  






 


6

















 




	
   

  
	
  “Fee Letter” means the fee letter dated on or about 31 May 2005,
  sent by the Security Trustee to the Borrower.

  
	
   

  
	
  “Finance Document” means this Agreement, any Transfer
  Certificate, the Administration Agreement, any Assignment Deed, the Borrower
  Accounts Agreement, the Fee Letter, the Guarantee, the Guarantor’s Counter
  Indemnity, the Master Swap Agreement, any Security Document, the Servicing
  Agreement, the Relevant Secured Property Loan Subordinated Loan Agreement,
  the Non-approved Secured Property Loan Interim Funding Agreements, the
  Non-approved Secured Property Debenture, the German Security Documents, the
  amending deeds to this Agreement or any other Finance Document, and any other
  document designated as a Finance Document by the Agent and the Borrower.

  
	
   

  
	
  “Finance Party” means the Agent, the Security Trustee or a
  Lender.

  
	
   

  
	
  “Financial Indebtedness” means any indebtedness for or in
  respect of:

  
	
   

  
	
  (a)

  	
  moneys
  borrowed;

  
	
   

  	
   

  
	
  (b)

  	
  any
  amount raised by acceptance under any acceptance credit facility;

  
	
   

  	
   

  
	
  (c)

  	
  any
  amount raised pursuant to any note purchase facility or the issue of bonds,
  notes, debentures, loan stock or any similar instrument;

  
	
   

  	
   

  
	
  (d)

  	
  the
  amount of any liability in respect of any lease or hire purchase contract
  which would, in accordance with GAAP, be treated as a finance or capital
  lease;

  
	
   

  	
   

  
	
  (e)

  	
  receivables
  sold or discounted (other than any receivables to the extent they are sold on
  a non-recourse basis);

  
	
   

  	
   

  
	
  (f)

  	
  the
  acquisition cost of any asset to the extent payable before or after the time
  of acquisition or possession by the party liable when the advance or deferred
  payment is arranged primarily as a method of raising finance or financing the
  acquisition of that asset;

  
	
   

  	
   

  
	
  (g)

  	
  any
  amount raised under any other transaction (including any forward sale or
  purchase agreement) having the commercial effect of a borrowing or raising of
  money;

  
	
   

  	
   

  
	
  (h)

  	
  any
  derivative transaction entered into in connection with protection against or
  benefit from fluctuation in any rate or price (and, when calculating the
  value of any derivative transaction, only the marked to market value shall be
  taken into account);

  
	
   

  	
   

  
	
  (i)

  	
  shares
  which are expressed to be redeemable;

  
	
   

  	
   

  
	
  (j)

  	
  any
  counter-indemnity obligation in respect of a guarantee, indemnity, bond,
  standby or documentary letter of credit or any other instrument issued by a
  bank or financial institution; and

  
	
   

  	
   

  
	
  (k)

  	
  the
  amount of any liability in respect of any guarantee or indemnity for any of
  the items referred to in paragraphs (a) to (j) above.

  
	
   

  	
   

  
	
  “Fitch Ratings” means the
  statistical ratings business carried on by Fitch Ratings Limited and its Affiliates.
  

  






 


7






 










 


 


“GAAP” in relation to any company means
generally accepted accounting principles, standards and practices in its
jurisdiction of incorporation.


 


“German Security Documents” means the
Master Security Assignment Agreement and the Security Trust Agreement and any
amendment agreements thereunder.


 


“Group” means (a) the Borrower; (b) the
Bank; (c) the Swap Counterparty; (d) the Servicer (for so long as it
is an Affiliate of the Guarantor); (e) the Guarantor; (f) Capmark
Holdings Ireland Limited; and (g) any Interim Funder (for so long as it is
an Interim Funder) which is not otherwise a member of the Group.


 


“Guarantee” means the guarantee dated 31
May 2005, granted by (1) the Guarantor in favour of (2) the
Finance Parties.


 


“Guarantor’s Counter Indemnity” means
the counter indemnity dated 31 May 2005, granted by (1) the Borrower
in favour of (2) the Guarantor.


 


“Hedging Arrangements” means any
interest rate swap, cap or other arrangement entered into by the Borrower with
the Swap Counterparty for the hedging or fixing of the interest which is
intended to facilitate the offering by the Borrower to a Secured Property Loan
Borrower of a fixed rate of interest, each of which is to be governed by the
Master Swap Agreement.


 


“Holding Company” means, in relation to
a company or corporation, any other company or corporation in respect of which
it is a Subsidiary.


 


“ICR Stress Test” means the interest
coverage ratio (ICR) of the Secured Property Loan must be greater than 1.3,
where:


 


	
  ICR=

  	
   

  	
  Net Rental Income

  
	
   

  	
   

  	
  Hedged portion x (swap (or cap) rate + margin) + unhedged portion x
  (base rate + margin)

  



 


where the base rate is 2 times the higher of (i) the swap (or cap)
rate and (ii) 3 month LIBOR or, as the case may be, EURIBOR at the time of
the funding of the Secured Property Loan.


 


“Initial Secured Property Loan Package”
means the information, documents and other evidence listed in schedule 6 (Initial Secured Property Loan Package) in relation to each
Secured Property Loan or as otherwise agreed between the Borrower and the Agent.


 


“Insurance Policies” means, in respect
of a Secured Property Loan or a Property, any relevant Buildings Insurance
Policy and any other relevant additional or replacement insurance contracts
from time to time which relate to the Secured Property Loan or the Property.


 


“Interest Payment Date” means, in
relation to each Loan, the final day of an Interest Period in relation to that
Loan.


 


“Interest Period” means, in relation to
a Loan, each period determined in accordance with clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each
period determined in accordance with clause 8.3 (Default
interest).


 


“Interim Funder” means Capmark Bank
Europe p.l.c. or Capmark Finance Inc. or (with the agreement of the Agent) any
other Affiliate of the Borrower who provides interim


 


 


8

















 


 


funding to the Borrower for the making or acquisition of a Non-approved
Secured Property Loan together the “Interim Funders”.


 


“Intra-Month Prepayment Loan”  has the meaning given to it in clause 9.2 (Intra-Month Prepayment Loans).


 


“Investment Grade Tenant” means:


 


	
  (a)

  	
  any tenant whose long term unsecured debt
  is rated at least BBB-/Baa3/BBB- by S&P, Moody’s and/or Fitch Ratings (an
  “Investment Grade Entity”); or

  
	
   

  	
   

  
	
  (b)

  	
  a government or local government body; or

  
	
   

  	
   

  
	
  (c)

  	
  a significant subsidiary of an investment grade entity; or

  
	
   

  	
   

  
	
  (d)

  	
  a tenant with:

  



 


	
  (i)

  	
  a minimum tangible net worth of £75,000,000 (or €115,000,000); and

  
	
   

  	
   

  
	
  (ii)

  	
  a rating as assessed by, respectively, The Dun & Bradstreet
  Corp. for UK tenants, Bürgel Wirthschaftsinformationen GmbH & Co.
  KG. for German tenants and any other equivalent institution for other
  jurisdictions which is, respectively, at least 5A1 with regard to The
  Dun & Bradstreet Corp. for UK tenants, below 2.0 with regard to
  Bürgel Wirthschaftsinformationen GmbH & Co. KG. for German tenants
  or any other comparable rating for other jurisdictions; and

  
	
   

  	
   

  
	
  (iii)

  	
  financial statements which are provided, and are in an acceptable
  form, to the Agent.

  



 


“Irish Companies Acts” means the Irish
Companies Acts 1963 to 2003.


 


“Lease” means any present or future
lease, underlease, sub-lease, licence, tenancy or right to occupy and any
agreement for the grant of any foregoing.


 


“Lender” means:


 


	
  (a)

  	
  the Original Lender; and

  
	
   

  	
   

  
	
  (b)

  	
  any bank, financial institution, trust, fund or other entity which
  has become a Party in accordance with clause 20 (Changes to
  the Lenders),

  



 


provided that any Lender which transfers all of its Commitment in
accordance with clause 20 (Changes to the Lenders)
shall cease to be a “Lender”.


 


“LIBOR” means, in relation to any Loan
in Sterling and Interest Period:


 


	
  (a)

  	
  the applicable Screen Rate; or

  
	
   

  	
   

  
	
  (b)

  	
  (if no Screen Rate is available for Sterling for the Interest Period)
  the arithmetic mean of the rates (rounded upwards to four decimal places) as
  supplied to the Agent at its request, quoted by the Reference Banks to
  leading banks in the London interbank market,

  



 


at or about 11 a.m. on the Quotation Date for the offering of
deposits in Sterling and for a period comparable to the Interest Period for
that Loan.


 


9

















 


“Loan” means a loan made or to be made
under the Facility or the amount of principal outstanding from time to time of
the loan.


 


“Majority Lenders” means a Lender or
Lenders whose Commitments aggregate more than 66 2/3 per cent. of the Total
Commitments (or, if the Total Commitments have been cancelled, aggregated more
than 66 2/3 per cent. of the Total Commitments immediately prior to the
cancellation).


 


“Mandatory Cost” means the percentage
rate per annum calculated by the Agent in accordance with schedule 4 (Mandatory Cost formulae).


 


“Margin” means, in respect of each Loan
for each Interest Period:


 


	
  (a)

  	
  which commences during the Availability Period, 0.6 per cent. per
  annum; or

  
	
   

  	
   

  
	
  (b)

  	
  which commences during the Amortisation Period, 1.00 per cent. per
  annum.

  



 


“Master Security Assignment Agreement”
means the master security assignment agreement dated 30 May 2006 between,
amongst others, the Borrower and the Security Trustee.


 


“Master Swap Agreement” means the 1992
ISDA master agreement (multi-currency cross border) and the schedule and credit
support annex relating to it each dated on or about 31 May 2005,
between the Borrower and the Swap Counterparty, together with any related
Hedging Arrangements and any related confirmations.


 


“month” means a period starting on one
day in a calendar month and ending on the numerically corresponding day in the
next calendar month, except that:


 


(a)                  if the
numerically corresponding day is not a Business Day, that period shall end on
the next Business Day in that calendar month in which that period is to end if
there is one, or if there is not, on the immediately preceding Business Day;
and


 


(b)                 if there is no
numerically corresponding day in the calendar month in which that period is to
end, that period shall end on the last Business Day in that calendar month.


 


The above rules will only apply to the last month of any period.


 


“Monthly Report” has the meaning given
to it in the Servicing Agreement.


 


“Monthly Settlement Date” means the 5th
of each calendar month (or if that is not a Business Day, the following
Business Day).


 


“Monthly Settlement Period” means a
period starting on one Monthly Settlement Date and ending on the next one.


 


“Moody’s” means Moody’s Investors
Service Limited.


 


“Net Rental Income” means, in relation
to a Property, the Rental Income in respect of that Property after deducting
the following in relation to that Property:


 


(a)                                 any
sum paid by a tenant of the Property by way of reimbursement of Service Charge
Expenses;


 


10

















 


 


(b)                                any
sum paid by a tenant of the Property for a breach of covenant under its
Occupational Lease to, or for expenses incurred by or on behalf of, the
relevant Secured Property Loan Borrower where such amount is applied by that
Secured Property Loan Borrower in remedying such breach or discharging such
expenses;


 


(c)                                 any
contribution to a sinking fund paid by a tenant of the Property under its
Occupational Lease;


 


(d)                                any
contribution paid by a tenant of the Property to ground rent due under any
Lease out of which the relevant Secured Property Loan Borrower derives its
interest in that Property; and


 


(e)                                 any
VAT on Rental Income or any sum mentioned above.


 


“Non-approved Secured Property Loan”  means at any time a Secured Property Loan made or acquired
by the Borrower which has not yet been approved for refinancing by the Lenders
or which the Lenders refuse to refinance.


 


“Non-approved Secured Property Loan Assets”
means


 


(a)                                 the
Non-approved Secured Property Loans;


 


(b)                                the
Collateral Security for the Non-approved Secured Property Loans; and


 


(c)                                 any
other assets of the Borrower insofar as they relate to the Non-approved Secured
Property Loans.


 


“Non-approved Secured Property Loan Actual
Documentation” means, in relation to a Non-approved Secured Property
Loan, a set of documents comprising each type of document listed in schedule 7
(Secured Property Loan Actual Documentation)
in the form used, or proposed to be used, in respect of that Non-approved
Secured Property Loan, except for any type of document which is inapplicable in
the case of that Non-approved Secured Property Loan.


 


“Non-approved Secured Property Loan Agreement”
means, in respect of any Non-approved Secured Property Loan, the relevant loan
facility or equivalent agreement with the relevant Non-approved Secured
Property Loan Borrower.


 


“Non-approved
Secured Property Loan Borrower” means, in relation to a Non-approved
Secured Property Loan, any person to whom it is lent or which otherwise has the
primary obligation to repay it, together with any chargors under the relevant
Collateral Agreement(s) (to the extent that Security in respect of such
Non-approved Secured Property Loan is being provided by a third party) and any
other person from time to time assuming the obligations of the Non-approved
Secured Property Loan Borrower under the relevant Non-approved Secured Property
Loan Agreement to repay that Non-approved Secured Property Loan or any part of
it.


 


“Non-approved Secured Property Loan Debenture”
means a debenture entered into on 13 February 2006, as amended and
restated on or about 30 May 2006 between (1) the Borrower and (2) the
Interim Funder.


 


“Non-approved Secured Property Loan Eligibility
Criteria” means the lending guidelines and criteria in the form
approved by the Agent for the origination of the Non-approved Secured Property
Loans and set out in schedule 11 (Non-approved Secured
Property Loan Eligibility Criteria), as amended with the prior
consent of the Agent.


 


11

















 


“Non-approved Secured Property Loan Irish Interim
Funding Agreement” means an interim funding agreement entered into
on 13 February 2006, as amended and restated on 30 May 2006 between (1) the
Borrower, (2) Capmark Bank Europe p.l.c., (3) the Agent and (4) the
Security Trustee.


 


“Non-approved Secured Property Loan Security
Trustee” means, in respect of any Non-approved Secured Property
Loan, the “Security Trustee” as that term or any equivalent term is defined or
used in the relevant Non-approved Secured Property Loan Agreement.


 


“Non-approved Secured Property Loan US Interim
Funding Agreement” means an interim funding agreement entered into
on 13 February 2006, as amended and restated on 30 May 2006 between (1) the
Borrower, (2) Capmark Finance Inc., (3) the Agent and (4) the
Security Trustee.


 


“Non-approved Secured Property Loan Interim Funding
Agreements” means the Non-approved Secured Property Loan Irish
Interim Funding Agreement and/or the Non-approved Secured Property Loan US
Interim Funding Agreement.


 


“Non-standard Scottish Secured Property Loan”
means a Scottish Secured Property Loan (other than a Standard Scottish Secured
Property Loan).


 


“Non-standard Security” means a standard
security in terms of the Conveyancing and Feudal Reform (Scotland) Act 1970.


 


“Occupational Lease” means any Lease to
which a Property is subject from time to time.


 


“Participating Member States”  means the member states of the European Communities which
adopt or have adopted a common currency in accordance with the legislation of
the European Community relating to Economic and Monetary Union.


 


“Party” means a party to this Agreement.


 


“Potential Event of Default” means any
event or circumstances which would (with the expiry of a grace period, the
giving of notice, the making of any determination under the Finance Documents
or any combination of any of the foregoing) be an Event of Default.


 


“Principal Receipts” has the meaning
given to it in the Debenture.


 


“Property” means, in relation to a
Secured Property Loan, the secured, mortgaged or charged freehold, heritable or
leasehold Property or properties in respect of which the Secured Property Loan
was made and where the context admits any reference to the Property includes
all or any part of that Property or, as the case may be, each of those
properties.


 


“Quotation Date” means, in relation to
any Interest Period:


 


(a)                                 if
the currency is Sterling, the first Business Day of that Interest Period; or


 


(b)                                if
the currency is Euro, two TARGET Days before the first day of that Interest
Period.


 


“Reference Banks” means, for LIBOR the
principal London offices of Barclays Bank PLC, HSBC Bank plc, Lloyds TSB Bank
plc and The Royal Bank of Scotland plc and, for EURIBOR, such leading banks as
the Agent may appoint in consultation with the


 


 


12

















 


 


Borrower or (in either case) such other banks as may be appointed by
the Agent in consultation with the Borrower.


 


“Registers of Scotland”  means the Land Register of Scotland and/or the General
Register of Sasines.


 


“Related Company” in relation to a
company means a company which is a related company of it within the meaning of
s4(5) Irish Companies (Amendment) Act, 1990.


 


“Relevant Advance Percentage”  has the meaning given to it in clause 5.3(b) (Currency and amount) and in relation to a Secured Property
Loan has the meaning given to it in schedule 12 (Relevant
Advance Percentages) provided that if a Secured Property Loan
remains outstanding for more than nine months from the relevant Utilisation
Date, the Relevant Advance Percentage shall be the applicable rate divided by
two.


 


“Relevant Secured Property Loan” means
at any time a Secured Property Loan which is not at that time a Non-approved
Secured Property Loan and “Relevant Secured Property
Loans” means all of them.


 


“Relevant Secured Property Loan Asset”
means:


 


(a)                                 a
Relevant Secured Property Loan;


 


(b)                                the
Collateral Security for a Relevant Secured Property Loan; or


 


(c)                                 any
other assets of the Borrower insofar as they relate to a Relevant Secured
Property Loan.


 


“Relevant Secured Property Loan Subordinated Loan
Agreement” means the subordinated loan agreement dated 31 May 2005,
as amended and restated on 30 May 2006 between (1) the Borrower, (2) the
Subordinated Lender, (3) the Agent and (4) the Security Trustee
pursuant to which the Subordinated Lender will provide funding for the balance
(after taking into account the funding provided under this Agreement) of the
funding for the making or acquisition of each Relevant Secured Property Loan.


 


“Rental Income” means all sums paid or
payable to or for the benefit of a Secured Property Loan Borrower arising from
the letting, use or occupation of any Property, including (but without double
counting):


 


(a)                                 rents,
licence fees and equivalent sums reserved or made payable;


 


(b)                                sums
received from any deposit held as security for performance of any tenant’s
obligations;


 


(c)                                 proceeds
of insurance in respect of loss of rent;


 


(d)                                receipts
from or the value of consideration given for the surrender or variation of any
letting;


 


(e)                                 sums
paid by way of reimbursement of Service Charge Expenses;


 


(f)                                   sums
paid for a breach of covenant or obligation under any Lease in relation to a
Property and for expenses incurred in relation to any such breach;


 


(g)                                any
contribution to a sinking fund paid by an occupational tenant;


 


13

















 


(h)                                any
contribution by an occupational tenant of the Property to ground rent due under
any Lease out of which a Secured Property Loan Borrower derives its interest in
that Property;


 


(i)                                    any
payment from a guarantor or other surety in respect of any of the items listed
in this definition;


 


(j)                                    interest,
damages or compensation in respect of any of the items in this definition; and


 


(k)                                 any
VAT on any sum mentioned in this definition.


 


“Repeating Representations” means:


 


(a)                                 in
the case of the Borrower (in respect of itself) and the Guarantor (in respect
of the Borrower), each of the representations set out in clauses 16.1 (Status) to 16.6 (Governing law and
enforcement), 16.9(b) (No Default),
16.10(b) (Written information) (in relation
to Information not previously warranted pursuant to that clause 16.10(b)) and
16.10(c) (Written information), clauses
16.11 (Financial statements) to 16.20 (Know your customer) (other than clause 16.17 (Registration requirements) and, for the purposes of clause
4.3(b) (Further conditions precedent)
only, clauses 16.7 (Deduction of Tax)
and 16.9(b) (No Default); and


 


(b)                                in
the case of the Guarantor (in respect of itself), each of the representations
set out in clauses 16.1 (Status) to 16.6
(Governing law and enforcement), 16.13 (Proceedings and judgments) and 16.18 (No immunity
from suit) and, for the purposes of clause 4.3(b) (Further conditions precedent) only, clause 16.7 (Deduction of Tax).


 


“S&P” means Standard &
Poor’s, a division of McGraw-Hill Companies, Inc.


 


“Scottish Secured Property Loan” means a
Secured Property Loan secured by Non-standard Security over a Property situated
in Scotland.


 


“Screen Rate”  means:


 


(a)                                 in
relation to LIBOR, the British Bankers Association Interest Settlement Rate for
Sterling for the relevant period; and


 


(b)                                in
relation to EURIBOR, the percentage rate per annum determined by the Banking
Federation of the European Union for the relevant period,


 


displayed on the appropriate page of the Telerate screen.  If the agreed page is replaced or
service ceases to be available, the Agent may specify another page or
service displaying the appropriate rate after consultation with the Borrower.


 


“Secured Assets”  has
the meaning given to it in the Debenture or, as the case may be, the Master
Security Trust Agreement.


 


“Secured Liabilities” has the meaning
given to it in the Debenture or, as the case may be, the Master Security Trust
Agreement.


 


“Secured Parties” means the Finance
Parties, the Guarantor, the Subordinated Lender, the Servicer, the Special
Servicer, and the Swap Counterparty.


 


 


14

















 


“Secured Property Loan” means a secured
commercial loan or other form of commercial financial accommodation made or
acquired, or to be made or acquired, by the Borrower, the making or acquisition
of which by the Borrower is, or is proposed by the Borrower to be, funded or
refinanced pursuant to this Agreement and the “Secured
Property Loans” means all of them.


 


“Secured Property Loan Actual Documentation”
means, in relation to a Secured Property Loan, a set of documents comprising
each type of document listed in schedule 7 (Secured Property Loan
Actual Documentation) in the form used, or proposed to be used, in
respect of that Secured Property Loan, except for any type of document which is
inapplicable in the case of that Secured Property Loan.


 


“Secured Property Loan Agreement” means,
in respect of any Secured Property Loan, the relevant loan facility or
equivalent agreement with the relevant Secured Property Loan Borrower.


 


“Secured Property Loan Borrower”  means, in relation to a Secured Property Loan, any person
to whom it is lent or which otherwise has the primary obligation to repay it,
together with any chargors under the relevant Collateral Agreement(s) (to
the extent that Security in respect of such Secured Property Loan is being
provided by a third party) and any other person from time to time assuming the
obligations of the Secured Property Loan Borrower under the relevant Secured
Property Loan Agreement to repay that Secured Property Loan or any part of it.


 


“Secured Property Loan Eligibility Criteria”
means the lending guidelines and criteria in the form approved by the Agent for
the origination of Secured Property Loans and set out in schedule 10 (Secured Property Loan Eligibility Criteria), as amended with
the prior consent of the Agent.


 


“Secured Property Loan Information”
means the information report in the form approved by the Agent to be provided
by the Borrower in accordance with the provisions of clauses 17.3 (Relevant Secured Property Loans) and 17.5 (Non-approved Secured Property Loans) and set out in schedule
8 (Secured Property Loan Information), as
amended with the prior consent of the Agent.


 


“Secured Property Loan Security Trust”
means, in respect of any Secured Property Loan, the trust or other arrangements
pursuant to which the relevant Collateral Agreement or Non-standard Security
(and any other relevant Collateral Security) is held on trust or otherwise by
the relevant Secured Property Loan Security Trustee.


 


“Secured Property Loan Security Trustee”
means, in respect of any Secured Property Loan, the “Security Trustee” as that
term or any equivalent term is defined or used in the relevant Secured Property
Loan Agreement.


 


“Secured Property Loan Standard Document”  means, in respect of each type of document listed in
schedule 7 (Secured Property Loan Actual Documentation)
at any time, a document which is either:


 


(a)                                 approved
by the Agent from time to time; or


 


(b)                                (in
the case of a type of document for which the Borrower does not at the relevant
time have a standard form) in a form which the Borrower, acting reasonably,
considers to be market standard for that type of document and which is approved
by the Agent,


 


15

















 


and the “Secured Property Loan Standard Documentation”
in respect of a Secured Property Loan means a set of documents comprising a
Secured Property Loan Standard Document for each type of document listed in
schedule 7 (Secured Property Loan Actual Documentation),
except for any type of document which is inapplicable in the case of that
Secured Property Loan.


 


“Secured Property Loan Value” in
relation to any Secured Property Loan means, on the Utilisation Date of the
relevant Loan or any date after that, the value that the Agent, at its sole
discretion, ascribes to that Loan on the basis that such Loan were being
refinanced through a CMBS transaction.


 


“Security” means a mortgage, charge,
Non-standard Security, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.


 


“Security Document” means the Debenture,
the German Security Documents and any other security document that may at any
time be given as security for any of the Secured Liabilities pursuant to or in
connection with any Finance Document.


 


“Security Trust Agreement” means the
security trust agreement dated 30 May 2006, between, amongst others, the
Borrower and the Security Trustee.


 


“Selection Notice”  means
a notice substantially in the form set out in schedule 3, part 2 (Form of Selection Notice).


 


“Service Charge Expenses” means expenses
incurred or to be incurred by or on behalf of a Secured Property Loan Borrower
in the management, maintenance and repair of, or the provision of services
specified in any Occupational Lease in respect of, any Property and the payment
of insurance premiums for that Property.


 


“Servicer” means Capmark Services
Ireland Limited in its capacity as such or any successor servicer as may be
appointed in accordance with the terms of the Servicing Agreement.


 


“Servicing Agreement” means the
servicing agreement to be entered into in the Agreed Terms between the
Borrower, the Servicer, the Bank and the Special Servicer relating to, amongst
other things, the provision of mortgage administration services for the Secured
Property Loans.


 


“Special Servicer” means Capmark
Services UK Limited in its capacity as such or any other successor special
servicer as may be appointed in accordance with the terms of the Servicing
Agreement.


 


“Standard Scottish Secured Property Loan”
means a Scottish Secured Property Loan in relation to which:


 


(a)                                 the
Secured Property Loan Agreement is governed by English law;


 


(b)                                the
Security over the relevant Property is granted to a Secured Property Loan
Security Trustee; and


 


(c)                                 the
Secured Property Loan Security Trust is governed by English Law.


 


“Sterling” means the lawful currency
from time to time of the United Kingdom.


 


 


16

















 


“Sterling Amount”  means,
in relation to a Loan, the amount specified in the Utilisation Request
delivered by the Borrower for that Loan (or, if the amount requested is not
denominated in Sterling, that amount converted into Sterling at the Agent’s
Spot Rate of Exchange on the date the Agent receives the Utilisation Request)
adjusted to reflect any repayment (other than a repayment arising from a change
of currency), prepayment, consolidation or sub-division of the Loan.


 


“Subordinated Lender” means the Bank.


 


“Subsidiary” means a subsidiary within
the meaning of s155 Irish Companies Act 1963 or (in relation to the Guarantor)
a person whose results it is required by GAAP to include in its consolidated
accounts.


 


“Swap Counterparty” means Capmark
Finance Inc.


 


“TARGET”  means
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system.


 


“TARGET Day”  means
any day on which TARGET is open for the settlement of payments in Euro.


 


“Tax” means any tax, levy, impost, duty
or other charge or withholding of a similar nature (including any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same).


 


“Termination Date” means the final day
of the Amortisation Period.


 


“Title Deeds” means, in relation to each
Secured Property Loan and the relevant Collateral Security and Property, all
title deeds and documents relating to that Property and Collateral Security,
including:


 


(a)                                 in
the case of leasehold Property situated in England and Wales, the relevant
lease or sub-lease;


 


(b)                                in
the case of Property situated in Scotland:


 


(i)                                     in
the case of Property the title to which is registered or is in the course of
being registered in the Land Register of Scotland, the Land and Charge
Certificates relative to it and, where such certificates have not yet been
issued, all deeds and documents requiring to be lodged with the Keeper of the
Registers of Scotland to enable the issue of such certificates;


 


(ii)                                  in
the case of Property, the title to which is recorded or is in the course of
being recorded in the General Register of Sasines:


 


(1)                                 a disposition in
favour of the relevant Secured Property Loan Borrower and the relevant
Collateral Security;


 


(2)                                 a prescriptive
progress of titles together with all writs referred to for description and
burdens (or official extracts or quick copies of these deeds) and searches in
the General Register of Sasines and the Register of Inhibitions and
Adjudications for the relevant prescriptive periods;


 


17

















 


(3)                                 in the case of
leasehold Property the title to which is recorded in the General Register of
Sasines,


 


(aa)                            the
relevant lease; and


 


(bb)                          a
prescriptive progress of titles together with all writs referred to for
description and burdens (or official extracts or quick copies of these deeds)
and searches in the General Registrar of Sasines and the Register of
Inhibitions and Adjudications for the relevant prescriptive periods; and


 


(iii)                               all
local authority and third party consents required relative to the erection of
and any alterations, additions or extensions carried out with regard to the
Property and the current use of it; and


 


(c)                                 in
the case of Property located in Germany:


 


(i)                                     an
excerpt of the land register (Grundbuch) for
such Property showing that


 


(1)                                 the seller of the
Property is the registered owner, and that


 


(2)                                 a priority notice
has been registered in favour of the relevant Secured Property Loan Borrower.


 


(ii)                                  in
case that the seller is not the registered owner of the Property upon signing
of the purchase agreement the latter contains a clause stipulating that the
purchase price has to be paid into a notarial escrow account and the notary not
being entitled to make payments to the seller earlier than either (A) the
stipulations in clause (i) (1) and (2) have been met or (B) before
the notary has received a confirmation of the notary notarising the agreement
as to the transfer of property of the sold Property to the seller confirming
that this transfer will be completed.


 


(iii)                               a
certified copy of the Collateral Agreement for such Property and a confirmation
of the public notary having notarised such mortgage deed certifying that the
Collateral Agreement has been filed for registration with the land register of
such Property and that there are no reasons why such registration would not be
made with the rank which the mortgage is purported to be registered at or proof
of registration of the mortgage or land charge (as the case may be) by way of
certified excerpt from the land register.


 


“Total Commitments” means the aggregate
of the Commitments, being £500,000,000 (or their equivalent in Euro) at the
date of this Agreement.


 


“Transaction” means the transaction as
evidenced by the Facility, the Finance Documents, the Relevant Secured Property
Loans, the Collateral Security for the Relevant Secured Property Loans and the
other terms connected with the warehouse transaction structure.


 


“Transfer Certificate” means a certificate substantially in
one of the forms set out in schedule 5 (Forms of Transfer
Certificate) or any other form agreed between the Agent and the
Borrower.


 


 


18














 


 


“Transfer Date” means, in relation to a transfer, the later
of:


 


(a)                                 the proposed Transfer Date
specified in the Transfer Certificate; and


 


(b)                                the date on which the Agent
executes the Transfer Certificate.


 


“Unpaid Sum” means any sum due and payable but unpaid by the
Borrower under the Finance Documents.


 


“Utilisation” means a utilisation of the Facility.


 


“Utilisation Date” means the date of a Utilisation, being the
date on which the relevant Loan is or is to be made.


 


“Utilisation Request”  means a notice
substantially in the form set out in schedule 3, part 1 (Form of Utilisation Request).


 


“Valuation” means, in relation to a Secured Property Loan, the
most recent valuation used by the Borrower in the origination of the Secured
Property Loan in respect of the relevant Property, provided such valuation must
be provided by an Approved Valuer in accordance (except as disclosed in the
relevant Disclosure Letter) with the Secured Property Loan Eligibility
Criteria.


 


“VAT” means value added tax as provided for in the Irish
Value Added Taxes Acts 1972 to 2001 or, as applicable, the UK Value Added Tax
Act 1994 and any other tax of a similar nature.


 


1.2                                Construction


 


(a)                                 Unless a
contrary indication appears, any reference in this Agreement to:


 


(i)                                     the “Agent”, any “Finance Party”,
any “Lender”, the “Borrower”,
the “Guarantor”, an “Interim
Funder”, any “Party”, the “Subordinated Lender”, the “Security Trustee”,
the “Servicer”, the “Special
Servicer” or the “Swap Counterparty”
shall be construed so as to include its successors in title, permitted assigns
and permitted transferees or, in the case of the Security Trustee, any person
from time to time acting as security trustee or security trustees under the
Debenture;


 


(ii)                                  “applicable law” includes any law (including common or
customary law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order, rule, convention, procedure, consent, request,
determination or any other legislative measure or requirement (whether or not
having the force of law) of, and any interpretation of the same by, any
governmental, intergovernmental, supranational, national, federal, state,
regional, local, statutory, regulatory, self regulatory or other body or court;


 


(iii)                               “assets” includes present and future properties, revenues and
rights of every description;


 


(iv)                              a clause, section or schedule is to a clause or section of or a schedule to this
Agreement (as the case may be) and any reference in a schedule to a paragraph is to a paragraph of that schedule;


 


 


19

















 


 


(v)                                 the “date of this Agreement” means 31 May 2005 and for the
purposes of clauses 16 (Representations),
17 (Information undertakings) and 18 (General undertakings) the date of this agreement means the
Effective Date;


 


(vi)                              a “disposal” includes any sale, lease, transfer, conveyance,
assignment, licence, sub-licence or other disposal of any kind and “dispose” and “disposed” shall
be construed accordingly;


 


(vii)                           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;


 


(viii)                        a “guarantee” includes any guarantee, bond, indemnity, letter
of credit, third party security or other legally binding assurance against
financial loss granted by one person in respect of any indebtedness of another
person or any agreement to assume any indebtedness of another person or to
supply funds or to invest in any manner whatsoever in another person by reason
of or otherwise in relation to any indebtedness of another person;


 


(ix)                                “including” means “including without limitation” (with
related words being construed accordingly);


 


(x)                                   “indebtedness” includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money, whether present
or future, actual or contingent;


 


(xi)                                “leasehold”  includes any
Property held under a long lease duly registered or recorded in the Registers
of Scotland; and any registered hereditary right of use (Erbbaurecht)
registered in the Registers of Germany;


 


(xii)                             a “person” includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or partnership
(whether or not having separate legal personality) or two or more of the
foregoing;


 


(xiii)                          a provision of applicable law or regulation is a reference to
that provision as amended or re-enacted;


 


(xiv)                         a “regulation” includes any regulation, rule, official
directive, request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;


 


(xv)                            a “right” includes any estate, interest, claim or other right
of any kind, both present and future;


 


(xvi)                         “set-off”  includes
equivalent or analogous rights under any jurisdiction other than that of
England and Wales; and


 


(xvii)                      a time of day is a reference to London time.


 


(b)                                Section, clause
and schedule headings are for ease of reference only.


 


 


 


20

















 


 


(c)                                 Unless a
contrary indication appears, a term used in any other Finance Document or in
any notice given under or in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement.


 


(d)                                An Event of
Default or Potential Event of Default is “continuing” if it has not been
remedied or waived.


 


1.3                                Third
Party Rights


 


(a)                                 Unless
expressly provided to the contrary in this Agreement, 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 Agreement.


 


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


 


 


 


21

















 


SECTION 2

THE FACILITY


 


2.                                      The Facility


 


2.1                                The Facility


 


Subject
to the terms of this Agreement, the Lenders makes available to the Borrower a
revolving loan facility in Sterling (or the Sterling equivalent in Euro) in an
aggregate principal amount equal to the Total Commitments.


 


2.2                                Extension
of the Availability Period


 


(a)                                 If the Borrower
notifies in writing the Agent, no later than 90 days before the end of the then
applicable Availability Period, that it wishes the Agent to extend the
Availability Period for a period (to be specified in the Borrower’s
notification) of up to two years, then the Agent shall promptly notify the
Lenders and the Lenders:


 


(i)                                     shall consider that request
in good faith (but without any obligation on the Lenders to agree to it); and


 


(ii)                                  shall notify the Agent of
their response no later than 45 days before the end of the then applicable
Availability Period.  The Agent shall
then promptly notify the Borrower.


 


Any
request made pursuant to this clause 2.2 by the Borrower shall be
unconditional, irrevocable and binding on the Borrower.


 


(b)                                If the Lenders, in their
response given pursuant to clause 2.2(a)(ii), accede to the Borrower’s request,
then the Availability Period shall be extended by the requested period.


 


(c)                                 If the Lenders
do not do so or fail to send a timely response pursuant to clause 2.2(a)(ii),
then the Availability Period shall not be extended.


 


(d)                                The
Availability Period may only be extended once, unless otherwise agreed by the
Lenders.


 


2.3                                Finance
Parties’ rights and obligations


 


(a)                                 The obligations
of each Finance Party under the Finance Documents are several. Failure by a
Finance Party to perform its obligations under the Finance Documents does not
affect the obligations of any other Party under the Finance Documents. No
Finance Party is responsible for the obligations of any other Finance Party
under the Finance Documents, except as may be expressly provided in the Finance
Documents.


 


(b)                                The rights of
each Finance Party under or in connection with the Finance Documents are
separate and independent rights and any debt arising under the Finance
Documents to a Finance Party from the Borrower shall be a separate and
independent debt.


 


(c)                                 A Finance Party
may, except as otherwise stated in the Finance Documents, only enforce its
rights under the Finance Documents through the Agent and the Security Trustee,
as provided in this Agreement and the Debenture.


 


 


 


22

















 


 


(d)                                Notwithstanding
the preceding provisions of this clause 2.3, the rights and obligations of the
Security Trustee are set out in the Debenture. 
If there is any inconsistency between such rights and obligations set
out in the Debenture and the terms of this Agreement, the terms of this
Agreement shall prevail.


 


2.4                                Limited
recourse and restriction on entitlement to petition


 


The
recourse of the Finance Parties against the Borrower in relation to the
obligations of the Borrower to the Finance Parties under the Finance Documents
shall be limited to the aggregate of all Principal Receipts and other amounts
received or recovered by the Borrower from the Relevant Secured Property Loan
Assets to the extent that those Principal Receipts and other amounts should,
pursuant to the terms of clause 8 (Receipts and payments)
of the Debenture, be applied in or towards discharge of those obligations and
accordingly:


 


(a)                                 no Finance
Party, nor anyone acting on behalf of a Finance Party, shall, in relation to
those obligations, have


 


(i)                                     any recourse to
any other assets of the Borrower; or


 


(ii)                                  any other right
of recovery against the Borrower;


 


(b)                                no Finance
Party, nor anyone acting on behalf of a Finance Party, shall be entitled to
petition, or take any other step, for the winding-up (or any equivalent in any
applicable jurisdiction) of the Borrower in respect of its obligations to that
Finance Party under the Finance Documents; and


 


(c)                                 without
prejudice to any right that a Finance Party may have against the Guarantor, any
right which any Finance Party may have had in respect of any obligations owed
by the Borrower under the Finance Documents which are not discharged following
the enforcement by the Security Trustee of the Security granted by the Borrower
under the Finance Documents shall be extinguished.


 


3.                                      Purpose


 


3.1                                Purpose


 


The
Facility is to be used only to fund or refinance the making or acquisition by
the Borrower of Secured Property Loans.


 


3.2                                Monitoring


 


No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.


 


 


 


23

















 


 


SECTION 3

UTILISATION


 


4.                                      Conditions of Utilisation


 


4.1                                Secured
Property Loan approval procedure


 


(a)                                 If the Borrower
wishes to utilise the Facility to fund or refinance the making or acquisition
of a Secured Property Loan, 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, 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 12 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),


 


 


 


24

















 


 


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                                Documentary
conditions precedent


 


(a)                                 The Parties
agree that the conditions precedent to the obligations of the Lenders under the
Original Facility Agreement, which are listed in schedule 2, part 1 (Initial conditions precedent) have been satisfied.


 


(b)                                The Parties
agree that the conditions precedent to the obligations of the Lenders under
this Agreement, which are listed in schedule 2, part 2 (Amendment
and restatement conditions precedent) have been satisfied.


 


(c)                                 The Borrower
may not deliver any Utilisation Request unless the Agent has:


 


(i)                                     approved the
Loan as referred to in clause 4.1(e); and


 


(ii)                                  received the
other evidence and confirmations listed in schedule 2, part 3 (Secured Property Loan conditions precedent) in form and
substance satisfactory to the Agent.


 


(d)                                The Agent shall
notify the Borrower, the Security Trustee and the Lenders promptly upon being
satisfied as referred to in clause 4.2(c)(ii).


 


4.3                                Further
conditions precedent


 


The
Lenders will only be obliged to comply with clause 5.4 (Advancing
Loans) in relation to a Loan if (in the case of clause 4.3(a) and
(b)) on the date of the Utilisation Request and on the proposed Utilisation
Date and (in the case of clause 4.3(c) on the proposed Utilisation Date:


 


(a)                                 no Default is
continuing or would result from the proposed Loan;


 


(b)                                the Repeating
Representations to be made by the Borrower and the Guarantor are true in all
respects; and


 


(c)                                 in relation to
each Secured Property Loan the making or acquisition of which the Borrower
proposes to fund or refinance from the Loan:


 


(i)                                     except as may
be waived by the Agent, it complies with the Secured Property Loan Eligibility
Criteria;


 


(ii)                                  the relevant
subordinated loan has been advanced under the Relevant Subordinated Loan
Agreement; and


 


(iii)                               the
representations and warranties to be made by the Borrower pursuant to clause
16.21(a) and (b) (Secured Property Loans)
are, or will on the relevant Closing Date be, true in all respects.


 


 


 


25

















 


 


4.4                                Maximum
number of Loans and limits on the Commitment


 


The
Borrower may not deliver a Utilisation Request if:


 


(a)                                 as a result of
the proposed Utilisation more than 25 Loans would be outstanding; or


 


(b)                                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.


 


4.5                                German,
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, in each case 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
£300,000,000 of the Commitment may be allocated to Secured Property Loans
relating to German Properties;


 


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


 


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


 


(b)                                In relation to
any Secured Property Loan relating to a French or Italian Property or any
Non-standard Scottish Secured Property Loan the making or acquisition of which
the Borrower wishes to fund or refinance pursuant to this Agreement, the
provisions of this Agreement shall apply with such amendments as the Agent may
require to reflect that it relates to a French or Italian Property rather than
an English, Welsh, Scottish or German one or, as the case may be, that it is a
Non-standard Scottish Secured Property Loan rather than a Standard Scottish
Secured Property Loan.  For the avoidance
of doubt, these amendments are subject to the provision of satisfactory
documentation to the Agent and may include, inter alia,
requirements for additional due diligence, additional Security and an amended
timetable for Utilisation.


 


5.                                      Utilisation


 


5.1                                Delivery
of a Utilisation Request


 


The
Borrower may utilise the Facility by delivery to the Agent (with a copy to each
of the Lenders) of a duly completed Utilisation Request not later than 11 a.m.
(Paris time) on


 


 


 


26

















 


 


the
proposed Utilisation Date (or at or on such later time and/or date as the Agent
may agree).


 


5.2                                Completion
of a Utilisation Request


 


(a)                                 Each
Utilisation Request is irrevocable and will not be regarded as having been duly
completed unless:


 


(i)                                     the proposed
Utilisation Date is a Business Day within the Availability Period;


 


(ii)                                  the currency
and amount of the Utilisation comply with clause 5.3;


 


(iii)                               the first
proposed Interest Period for the Loan complies with clause 9 (Interest Periods); and


 


(iv)                              it specifies
the account and bank to which the proceeds of the Utilisation are to be
credited.


 


(b)                                Only one Loan
may be requested in each Utilisation Request.


 


5.3                                Currency,
amount and duration


 


(a)                                 The currency
specified in a Utilisation Request must be Sterling or Euro and must be the
same as that of the relevant Secured Property Loan or Secured Property Loans.


 


(b)                                The amount of
the proposed Loan must be:


 


(i)                                     a minimum of
£1,000,000 (or, if the currency selected is Euro, €1,000,000) and in any event
such that its Sterling Amount is less than or equal to the Available Facility;
and


 


(ii)                                  equal to or
less than the Relevant Advance Percentage of the Advance Amount (or the
aggregate of the Relevant Advance Percentage of the Advance Amounts) of the
Secured Property Loan (or the Secured Property Loans) which the Borrower
intends to be funded or refinanced by the making of such Loan (the balance of
the Advance Amount, or the aggregate of the Advance Amounts, to be drawn in
respect of that Secured Property Loan (or those Secured Property Loans) under a
Subordinated Loan Agreement).


 


5.4                                Advancing
Loans


 


(a)                                 If the
conditions set out in this Agreement have been met in respect of a Loan, each Lender
shall make its participation in each Loan available by the Utilisation Date
through its Facility Office.


 


(b)                                The amount of
each Lender’s participation in each Loan will be equal to the proportion borne
by its Available Commitment to the Available Facility immediately prior to
making the Loan.


 


(c)                                 To the extent
that the proceeds of any Utilisation are advanced for the funding or
refinancing of the making or acquisition of any Secured Property Loan and such
making or acquisition of the Secured Property Loan does not occur on the day


 


 


 


27

















 


 


such funds were advanced, the Borrower agrees to pay
an amount equal to the amount which the Lenders would be able to obtain by
placing an amount equal to the principal amount advanced to fund or refinance
the making or acquisition of that Secured Property Loan on overnight deposit
with a leading bank in the relevant interbank market.  For the avoidance of doubt, this payment shall
be in lieu of interest, which shall not accrue pursuant to clause 8 (Interest) until the making or acquisition of the Secured
Property Loan occurs.


 


(d)                                The Borrower
agrees that the proceeds of any Utilisation that are advanced for the purpose
of funding or refinancing the making or acquisition of a Secured Property Loan
shall be promptly repaid without any deduction or set-off if the making or
acquisition of the Secured Property Loan does not occur either on or within 24
hours of the scheduled Closing Date unless otherwise agreed to by the Agent
(provided that in such circumstances the Borrower shall not be obliged to pay
Break Costs in respect of the repayment of the proceeds of such Utilisation but
shall pay a further amount in respect to the funds being held on deposit
overnight in accordance with clause 5.4(c) for each further period of 24
hours the Agent agrees the Borrower may have before being obliged to repay such
amount in accordance with this clause).


 


5.5                                Completion
of making or acquisition of Secured Property Loans


 


Prior
to the close of business on each Business Day following a Utilisation Date, the
Borrower shall notify both the Agent and the Security Trustee of any Secured
Property Loans that have been made or acquired, by providing to the Agent and
the Security Trustee, in respect of the relevant Secured Property Loan, the
name of the Secured Property Loan Borrower, the loan amount and any relevant
loan reference.


 


 


 


28














 


SECTION 4

REPAYMENT, PREPAYMENT AND CANCELLATION


 


6.                                      REPAYMENT


 


The Borrower shall repay each Loan, together with
all accrued interest and other amounts outstanding under this Agreement, on the
Termination Date.


 


7.                                      PREPAYMENT
AND CANCELLATION


 


7.1                                Illegality


 


If it becomes unlawful in any applicable
jurisdiction for a Lender to perform any of its obligations as contemplated by
this Agreement or to fund or maintain its participation in any Loan:


 


(a)                                 that Lender shall
promptly notify the Agent upon becoming aware of that event;


 


(b)                                upon the Agent
notifying the Borrower, the Commitment of that Lender will be immediately
cancelled; and


 


(c)                                 the Borrower
shall repay that Lender’s participation in the Loans by no later than the
expiry of a six months’ wind-down period commencing the date of the
notification (or, if earlier, the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of any applicable
grace period permitted by law)).


 


7.2                                Change of control


 


(a)                                 Clause 7.2(b) shall
apply if:


 


(i)                                     the Servicer
ceases to be a Subsidiary of the Guarantor or the Guarantor ceases to be a
Subsidiary of General Motors Acceptance Corporation; and


 


(ii)                                  upon the expiry
of six months following that cessation, the Servicer is not a Subsidiary of a
Rated Entity or, as the case may be, the Guarantor is neither a Rated Entity
nor a Subsidiary of a Rated Entity,


 


and for these purposes a “Rated Entity”
means a person whose senior, unsecured debt is rated at investment grade or
above by an internationally recognised rating agency.


 


(b)                                If this clause
7.2(b) applies, then on the Business Day following the expiry of the six
months’ period referred to in clause 7.2(a):


 


(i)                                     the Borrower
shall repay each Loan, together with all accrued interest and other amounts
outstanding under this Agreement; and


 


(ii)                                  the Commitment of
each Lender shall be cancelled.


 


7.3                                Inadvertent
omission of information


 


(a)                                 Clause 7.3(b) shall
apply if and for so long as a breach of clause 16.10(b) (Written information) has not occurred but would have
occurred if either:


 


 


 


29

















 


(i)                                     the words “so far
as the Borrower is aware” had been omitted from that clause; or


 


(ii)                                  the words “and
does not contain any material omission” had been inserted at the end of that
clause.


 


(b)                                If at a time this
clause 7.3(b) applies the Agent so requires, then:


 


(i)                                     the Borrower
shall promptly repay each Loan, together with all accrued interest and other
amounts outstanding under this Agreement; and


 


(ii)                                  the Commitment of
each Lender shall be cancelled.


 


7.4                                Margin call


 


(a)                                 In the event that
a Secured Property Loan Value, as determined by the Agent, no longer reflects
the Relevant Advance Percentage, the Agent shall promptly notify the Borrower.
If the Borrower requests, the Agent shall provide to the Borrower reasonable
explanations as to how it has made its determination of the Secured Property
Loan Value but, in the absence of manifest error, such determination shall be
binding on the Borrower.


 


(b)                                If clause 7.4(a) applies,
then the Borrower shall, within 5 Business Days of notice from the Agent under
clause 7.4(a), repay to the Lender an amount equal to the difference between
the Base Aggregate Secured Property Loan Value and the current Aggregate
Secured Property Loan Value (together with accrued but unpaid interest on that
amount).


 


(c)                                 Upon an event or
series of events which are determined by the Agent to have a material adverse
effect on the financial condition, assets or business of the Group taken as a
whole, the Agent may by notice to the Borrower reduce the effective advance
rate (that is the percentage which represents the proportion of the aggregate
principal amount of the Relevant Secured Property Loans which is funded by the Loans)
by 20%.  If the Agent does so, then the
Borrower shall promptly repay an amount equal to 20% of the Loans, together
with accrued but unpaid interest on that amount.


 


7.5                                Voluntary
prepayment


 


The Borrower may voluntarily prepay the Loans in
full or in part at any time provided that:


 


(a)                                 the prepayment is
either:


 


(i)                                     made on a Monthly
Settlement Date; or


 


(ii)                                  of all or no less
than 10% of the amount of the Loans;


 


(b)                                the Borrower has
given the Agent three (or in the case of a prepayment on a non-Monthly
Settlement Date, five Business Days’ written notice of the prepayment (or such
shorter period as the Agent may agree); and


 


(c)                                 the prepayment is
at least £1,000,000 (or €1,000,000 for any Loan in Euro).


 


30

















 


7.6                                Prepayment from
Principal Receipts


 


The Borrower shall apply any Principal Receipts
which in accordance with clause 8.1 (Principal Receipts (prior
to enforcement)) of the Debenture fall to be applied in or towards
prepayment of any Loan or Loans in or towards that prepayment in accordance
with that clause, either:


 


(a)                                 in the case of an
application of Principal Receipts to which clause 8.1(b) (Principal Receipts (prior to enforcement)) of the Debenture
refers, on the relevant Interest Payment Date for the relevant Intra-Month
Prepayment Loan; or


 


(b)                                in the case of
any other application of Principal Receipts in accordance with clause 8.1(c) (Principal Receipts (prior to enforcement)) of the Debenture,
on a Monthly Settlement Date.


 


7.7                                Lender call
option


 


(a)                                 If during the
Amortisation Period, any of the Loans are still outstanding, then the Agent may
by notice in writing to the Borrower (a “Sale Notice”),
designate a person (the “Proposed Purchaser”)
to purchase from the Borrower one or more of the outstanding Secured Property
Loans the making or acquisition of which was funded or refinanced pursuant to
this Agreement.


 


(b)                                In the Sale
Notice, the Agent shall specify in respect of each Secured Property Loan
separately the purchase price and the timing of completion of the proposed
purchase, which shall be no earlier than five and no later than 15 Business
Days from the date of service of the Sale Notice, and warrant to the Borrower
that any necessary Authorisations for the sale of the relevant Secured Property
Loan or Loans to the Proposed Purchaser have been obtained.


 


(c)                                 If the Agent
serves a Sale Notice complying with clause 7.7(a) and (b), then in respect
of that relevant Secured Property Loan either:


 


(i)                                     (subject to
clause 7.7(d)), the Guarantor shall, or procure that another person shall, buy
that Secured Property Loan from the Borrower on or before the date of the
completion of the purchase specified in the Sale Notice at a price equal to the
amount of the Loan advanced under this Agreement in respect of that Secured
Property Loan; or


 


(ii)                                  the Agent shall
procure that the Proposed Purchaser buys it from the Borrower at the purchase
price and the time specified in the Sale Notice,


 


with in either case the resulting Principal Receipts
being applied in accordance with clause 8 (Receipts and payments))
of the Debenture.


 


(d)                                No purchase of
any Secured Property Loan shall be made or procured by the Guarantor pursuant
to clause 7.7(c) if a Default is outstanding (unless the purchase is of
sufficient Secured Property Loans to ensure that as a result the Loans are
fully repaid);


 


(e)                                 The Borrower
shall enter into the documentation required under the terms of each relevant Secured
Property Loan to effect the transfers pursuant to clause 7.7(c) and:


 


(i)                                     in the case of
each transfer pursuant to clause 7.7(c)(i), the Guarantor; or


 


 


31

















 


(ii)                                  in the case of
each transfer pursuant to clause 7.7(c)(ii), the Agent,


 


shall procure that the transferee does the same.


 


7.8                                Voluntary
cancellation


 


The Borrower may, if it gives the Agent not less
than five Business Days’ (or such shorter period as the Majority Lenders may
agree) prior notice, cancel the whole or part of the Available Facility (but if
in part, in a minimum amount of at least £1,000,000).  Any cancellation under this clause 7.8 shall
reduce the Commitments of the Lenders rateably under the Facility or as the
Agent and the Lenders may otherwise agree.


 


7.9                                Restrictions


 


(a)                                 Any notice of
cancellation or prepayment given by any Party under this clause 7 shall be
irrevocable and, unless a contrary indication appears in this Agreement,
specify the date or dates upon which the relevant cancellation or prepayment is
to be made and the amount of that cancellation or prepayment.


 


(b)                                The Borrower may
specify the Loan or Loans against which any prepayment under this Agreement is
to be applied, except to the extent this is specified in any Finance Document.


 


(c)                                 Any prepayment
under this Agreement shall be made together with accrued interest on the amount
prepaid and, unless such prepayment is made on an Interest Payment Date,
without premium or penalty although (except in the case of a prepayment
pursuant to clause 7.6) subject to any Break Costs.


 


(d)                                Unless a contrary
indication appears in this Agreement, any part of the Facility which is prepaid
may be reborrowed in the Availability Period in accordance with the terms of
this Agreement.


 


(e)                                 The Borrower
shall not repay or prepay all or any part of the Loans or cancel all or any
part of the Facility except at the times and in the manner expressly provided
for in this Agreement.


 


(f)                                   No amount of the
Total Commitments cancelled under this Agreement may be subsequently
reinstated.


 


(g)                                If the Agent
receives a notice under this clause 7 it shall promptly forward a copy of that
notice to either the Borrower or each affected Lender, as appropriate.


 


 


32

















 


SECTION 5

COSTS OF UTILISATION


 


8.                                      INTEREST


 


8.1                                Calculation of
interest


 


The rate of interest on each Loan for each Interest
Period is the percentage rate per annum which is the aggregate of the
applicable:


 


(a)                                 Margin;


 


(b)                                LIBOR (or in
relation to any Loan in Euro, EURIBOR); and


 


(c)                                 Mandatory Costs,
if any.


 


8.2                                Payment of
interest


 


The Borrower shall pay accrued interest on each Loan
on the last day of each Interest Period.


 


8.3                                Default interest


 


(a)                                 If the Borrower
fails to pay any amount payable by it under a Finance Document (other than in
respect of the principal amount outstanding under a Loan during the first
Interest Period for that overdue amount as determined in accordance with clause
8.3(b)) on its due date, interest shall accrue on the overdue amount from such
due date up to the date of actual payment (both before and after judgment) at a
rate per annum which is the sum of the applicable Margin and the rate which
would have been payable if the overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for successive
Interest Periods, each of a duration selected by the Agent. Any interest
accruing under this clause 8.3 shall be immediately payable by the Borrower on
demand by the Agent.


 


(b)                                If any overdue
amount consists of all or part of the principal amount outstanding in respect
of a Loan:


 


(i)                                     the first
Interest Period for that overdue amount shall have a duration equal to the
unexpired portion of the current Interest Period (if any) relating to that
Loan; and


 


(ii)                                  the rate of
interest applying to the overdue amount during that first Interest Period shall
be the sum of one per cent. per annum and the rate which would have applied if
the overdue amount had not become due.


 


(c)                                 Default interest
(if unpaid) arising on an overdue amount will be compounded with the overdue
amount at the end of each Interest Period applicable to that overdue amount but
will remain immediately due and payable.


 


8.4                                Notification of
rates of interest


 


The Agent shall promptly notify the Lenders and the
Borrower of the determination of a rate of interest under this Agreement.


 


 


 


33

















 


9.                                      INTEREST
PERIODS


 


9.1                                Interest Periods


 


(a)                                 The first
Interest Period for a Loan made on a day other than a Monthly Settlement Date
shall start on its Utilisation Date and end on the next Monthly Settlement
Date.


 


(b)                                On each Monthly
Settlement Date all outstanding Loans shall be consolidated or sub-divided, as
applicable, into up to four Loans, as follows:


 


(i)                                     up to two
Intra-Month Prepayment Loans, or as otherwise agreed, established in accordance
with clause 9.2(b);


 


(ii)                                  a Sterling Loan
(comprising all outstanding principal denominated in Sterling, apart from any
Intra-Month Prepayment Loan denominated in Sterling); and


 


(iii)                               a Euro Loan
(comprising all outstanding principal denominated in Euro, apart from any
Intra-Month Prepayment Loan denominated in Euro).


 


The determination of what Loans and principal are “outstanding” for the purposes of this clause 9 shall be made
after the making of any Loans, repayments or prepayments on the relevant
Monthly Settlement Date pursuant to this Agreement.


 


(c)                                 Each Intra-Month
Prepayment Loan shall have an Interest Period commencing on the relevant
Monthly Settlement Date and ending on the date specified in the relevant
Selection Notice; and if it is not prepaid pursuant to this Agreement on or
before the date specified in the Selection Notice solely because the expected
prepayment under the relevant Secured Property Loan has not been received, one
or more further Interest Periods (each of one Business Day or such longer
period, not extending beyond the next Monthly Settlement Date, as may be agreed
between the Borrower and the Agent) until the earlier of:


 


(i)                                     the Intra-Month
Prepayment Loan being prepaid pursuant to this Agreement; and


 


(ii)                                  the next Monthly
Settlement Date.


 


(d)                                Each Loan
referred to in clause 9.1(b)(ii) or (iii) shall have an Interest
Period commencing on the relevant Monthly Settlement Date and ending on the
next Monthly Settlement Date.


 


(e)                                 An Interest
Period for a Loan shall not extend beyond the Termination Date.


 


9.2                                Intra-Month
Prepayment Loans


 


(a)                                 In this
Agreement, an “Intra-Month Prepayment Loan” means
a Loan in respect of which the Borrower expects a matching prepayment under a
Relevant Secured Property Loan between two Monthly Settlement Dates and hence
requires an Interest Period for such Loan starting on a Monthly Settlement Date
and ending before the next Monthly Settlement Date.


 


 


 


34

















 


 


(b)                                To establish an
Intra-Month Prepayment Loan, the Borrower must deliver an appropriate Selection
Notice to the Agent by no later than 11 a.m. on the Quotation Date for the
Interest Period starting on the relevant Monthly Settlement Date.


 


(c)                                 A Selection
Notice delivered pursuant to clause 9.2(b) shall be irrevocable and shall
specify:


 


(i)                                     the currency
(Sterling or Euro) of the Intra-Month Prepayment Loan;


 


(ii)                                  the amount of the
Intra-Month Prepayment Loan, which must be a minimum of £1,000,000 (or, if the
currency selected is Euro, €1,000,000) and no greater than the amount of the
relevant currency outstanding on the relevant Monthly Settlement Date; and


 


(iii)                               the final day of the
Interest Period for the Intra-Month Prepayment Loan starting on the relevant
Monthly Settlement Date (being the day on which the Borrower expects a matching
prepayment under a Relevant Secured Property Loan).


 


9.3                                Non-Business Days


 


If an Interest Period would otherwise end on a day
which is not a Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).


 


10.                                CHANGES
TO THE CALCULATION OF INTEREST


 


10.1                          Absence of quotations


 


Subject to clause 10.2, if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a Reference
Bank does not supply a quotation by the specified time on the Quotation Date in
accordance with the definition of LIBOR or, if applicable, EURIBOR, the
applicable LIBOR or EURIBOR shall be determined on the basis of the quotations
of the remaining Reference Banks.


 


10.2                          Market disruption


 


(a)                                 If a Market
Disruption Event occurs in relation to a Loan for any Interest Period, then the
rate of interest on each Lender’s participation in that Loan for the Interest
Period shall be the rate per annum which is the sum of:


 


(i)                                     the Margin; and


 


(ii)                                  the rate notified
to the Agent by that Lender as soon as practicable and in any event before
interest is due to be paid in respect of that Interest Period, to be that which
expresses as a percentage rate per annum the cost to that Lender of funding its
participation in that Loan from whatever market source it may reasonably
select; and


 


(iii)                               the Mandatory
Cost, if any, applicable to the Lender’s participation in the Loan.


 


(b)                                In this Agreement
“Market Disruption Event” means


 


 


 


 


35

















 


(i)                                     at or about noon
on the Quotation Day for the relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks supplies a rate to the
Agent to determine LIBOR or, if applicable, EURIBOR for the relevant currency
for that Interest Period; or


 


(ii)                                  before close of
business in London on the Quotation Date for the relevant Interest Period, the
Agent receives notifications from a Lender or Lenders (whose participation in
the relevant Loan(s) exceeds 50% of the Loan(s)) that the cost to it of
obtaining matching deposits in the relevant interbank market would be in excess
of LIBOR or, if applicable, EURIBOR.


 


10.3                          Alternative basis of
interest or funding


 


(a)                                 If a Market
Disruption Event occurs and the Agent or the Borrower so requires, the Agent
and the Borrower shall enter into negotiations (for a period of not more than
thirty days) with a view to agreeing a substitute basis for determining the
rate of interest.


 


(b)                                Any alternative
basis agreed pursuant to clause 10.3(a) shall, with the prior consent of
all the Lenders and the Borrower, be binding on all Parties and notified by the
Agent to the Security Trustee.


 


10.4                          Break Costs


 


(a)                                 The Borrower
shall, within three Business Days of demand by a Finance Party (other than the
Security Trustee), pay to that Finance Party its Break Costs attributable to
all or any part of a Loan or Unpaid Sum being paid by the Borrower (other than
pursuant to clause 7.6 (Prepayment from Principal
Receipts)) on a day other than the last day of an Interest Period
for that Loan or Unpaid Sum.


 


(b)                                Each Finance
Party shall, as soon as reasonably practicable after a demand by the Agent or
the Borrower, provide a certificate confirming the amount of its Break Costs
for any Interest Period in which they become payable.


 


 


 


36






 










SECTION 6

ADDITIONAL PAYMENT OBLIGATIONS


 


11.                              TAX GROSS-UP AND INDEMNITIES


 


11.1                       Definitions


 


(a)                                In this Agreement:


 


“Irish Taxes Acts”  means the Taxes Consolidation Act 1997 of Ireland, as
amended.


 


“Protected Party”
means a Finance Party which is or will be subject to any liability, or required
to make any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under this Agreement.


 


“Qualifying
Lender” means a Lender which is beneficially entitled to any
interest payable to that Lender in respect of a Loan, and which is:


 


(i)                                     a person which is resident in a
territory that has a Treaty in effect with Ireland or which is resident in a
Member State of the European Communities (other than Ireland) under the laws of
that Member State, provided that if the person is a company, such company does
not provide its commitment through or in connection with a branch or agency of
that company in Ireland and provided that where the person is:


 


(1)                                a U.S. corporation, the U.S.
corporation is incorporated in the U.S. and subject to tax in the U.S. on its
worldwide income; or


 


(2)                                a U.S. L.L.C., the ultimate
recipients of the interest are resident in and under the laws of a territory
with which Ireland has a double taxation treaty or resident in and under the
laws of a Member State of the European Communities (other than Ireland) and the
business conducted through the L.L.C. is so structured for market reasons and
not for tax avoidance purposes;


 


(ii)                                  a Treaty Lender;


 


(iii)                               a bank which is licensed pursuant to
s9 Central Bank Act 1971 of Ireland to carry on banking business in Ireland and
which is carrying on a bone fide banking business in Ireland for the purposes
of s246(3)(a) Irish Taxes Acts with which the Loan is connected and which
is regarded by the Revenue Commissioners of Ireland as having made the advance
in respect of the Loan for the purposes of s246(3)(a) Irish Taxes Acts;


 


(iv)                              an authorised credit institution
under the terms of EU Council Directive 2000/12/EC of 20 March 2000 (as
amended or extended) that has duly established a branch in Ireland or has made
all necessary notifications to its home state competent authorities required
under that Directive in relation to its intention to carry on banking business
in Ireland which is recognised by the Revenue Commissioners of Ireland as
carrying on bona fide banking business in Ireland for the purposes of s246(3)(a) Irish
Taxes Acts and has its Facility Office in Ireland and which is regarded by the 


 


37

















 


                                                Revenue Commissioners of Ireland as
having made the advance in respect of the Loan for the purposes of s246(3)(a) Irish
Taxes Acts;


 


(v)                                 a “qualifying company” within the
meaning of s110 Irish Taxes Acts; or


 


(vi)                              a company (within the meaning of s4
Irish Taxes Acts):


 


(1)                                which advances money in the ordinary
course of a trade which includes the lending of money;


 


(2)                                in whose hands any interest payable
in respect of money so advanced is taken into account in computing the trading
income of the company; and


 


(3)                                which:


 


(I)                       has notified in writing the
appropriate Inspector of Taxes (in accordance with s246(5)(a)(iii)(I) Irish
Taxes Acts) that it meets the requirements of s246(5)(a)(i) and (ii) Irish
Taxes Acts; and


 


(II)                  has complied with its obligations to
notify the Borrower of those matters referred to in, and in accordance with,
s246 (5)(a)(iii)(II) Irish Taxes Acts;


 


provided that if s246 Irish
Taxes Acts is repealed, modified, extended or re-enacted, the Borrower may at
any time and from time to time after consultation with the Lenders amend this
definition in such manner as it may determine to be appropriate by giving
notice of the amended definition to the Agent and the Lenders;


 


“Tax Credit”
means a credit against, relief or remission for, or repayment of any Tax.


 


“Tax Deduction”
means a deduction or withholding for or on account of Tax from a payment under
this Agreement.


 


“Tax Payment”
means an increased payment made by the Borrower to a Finance Party under clause
11.2 or a payment under clause 11.3.


 


“Treaty Lender”
means a Lender which:


 


(vii)                           is treated as a resident of a Treaty State for the purposes of a
Treaty; and


 


(viii)                        does not carry on a business in Ireland through a permanent
establishment with which that Lender’s participation in the Loans is
effectively connected.


 


“Treaty State”
means a jurisdiction having a double taxation agreement (a “Treaty”) with Ireland which makes provision for full
exemption from tax imposed by Ireland on interest.


 


(b)                                Unless a contrary indication appears in this clause 11, a reference
to “determines” or “determined”
means a determination made in the absolute discretion of the person making the
determination.


 


 


38

















 


 


11.2                       Tax
gross-up


 


(a)                                The Borrower shall make all payments to be made by it under this
Agreement without any Tax Deduction, unless a Tax Deduction is required by law.


 


(b)                                The Borrower shall promptly upon becoming aware that the Borrower
must make a Tax Deduction (or that there is any change in the rate or the basis
of a Tax Deduction) notify the Agent accordingly.  Similarly, a Lender shall notify the Agent on
becoming so aware in respect of a payment payable to that Lender.  If the Agent receives such notification from
a Lender it shall notify the Borrower.


 


(c)                                 If a Tax Deduction is required by law to be made by the Borrower
from a payment due under this Agreement, the amount of the payment due from the
Borrower shall be increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due if no Tax
Deduction had been required.


 


(d)                                The Borrower shall not be required
to make a Tax Payment under clause 11.2(c) if on the date on which the
payment falls due the payment could have been made without a Tax Deduction if
the person beneficially entitled to the payment were a Qualifying Lender, but
on that date that person is not or has ceased to be a Qualifying Lender.


 


(e)                                 If the Borrower is required to make a Tax Deduction, the Borrower
shall make that Tax Deduction and any payment required in connection with that
Tax Deduction within the time allowed and in the minimum amount required by
law.


 


(f)                                  Within 30 days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Borrower shall deliver to
the Agent for the Finance Party entitled to the payment evidence satisfactory
to the Agent that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.


 


(g)                                 A Treaty Lender, and the Borrower shall co-operate in completing any
procedural formalities for the Borrower to obtain authorisation to make a
payment to which the Lender as a Treaty Lender is entitled without a Tax
Deduction.


 


11.3                       Tax
indemnity


 


(a)                                The Borrower shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss, liability or cost
which that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party in
respect of a Finance Document.


 


(b)                                Clause 11.3(a) above shall not apply:


 


(i)                                     with respect to any Tax assessed on a Finance Party:


 


(1)                                under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or jurisdictions) in which
that Finance Party is treated as resident for tax purposes; or


 


(2)                                under the law of the jurisdiction in which that Finance Party’s
Facility Office is located in respect of amounts received or receivable in that
jurisdiction,


 


 


39

















 


 


if that Tax is imposed on or calculated by
reference to the net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party; or


 


(ii)                                  to the extent a loss, liability or cost is:


 


(1)                                compensated for by an increased payment under clause 11.2;


 


(2)                                would have been compensated for by an increased payment under clause
11.2 but was not so compensated solely because the exclusion in clause 11.2(d) applied;
or


 


(3)                                is in respect of any Irish Tax assessed on a Lender that would not
have been assessed if that Lender had been a Qualifying Lender but on that date
the Lender is not or has ceased to be a Qualifying Lender.


 


(c)                                 A Protected Party making, or intending to make, a claim under clause
11.3(a) shall promptly notify the Agent of the event which will give, or
has given, rise to the claim; following which the Agent shall notify the
Borrower.


 


(d)                                A Protected Party shall, on receiving a payment from the Borrower
under this clause 11.3, notify the Agent.


 


11.4                       Tax
Credit


 


If the Borrower makes a Tax Payment and the
relevant Finance Party determines that:


 


(a)                                a Tax Credit is attributable to that Tax Payment; and


 


(b)                                that Finance Party has obtained, utilised and retained that Tax
Credit,


 


the Finance Party shall pay an amount to the
Borrower which that Finance Party reasonably determines will leave it (after
that payment) in the same after-Tax position as it would have been in had the
Tax Payment not been made by the Borrower. 
It is understood that the Finance Party will use its best efforts in
order to use and retain the Tax Credit as soon as possible pursuant to the
relevant legislation.


 


11.5                       Stamp
taxes


 


The Borrower shall pay and, within three
Business Days of demand, indemnify each Finance Party against any cost, loss or
liability which that Finance Party incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of any Finance
Document.


 


11.6                       Value
added tax


 


(a)                                All consideration expressed to be payable under a Finance Document
by any Party to a Finance Party shall be deemed to be exclusive of any VAT. If
VAT is chargeable on any supply made by any Finance Party to any Party in
connection with a Finance Document, that Party shall pay to the Finance Party
(in addition to and at the same time as paying the consideration) an amount
equal to the amount of the VAT.


 


 


40

















 


 


(b)                                Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance Party in
respect of the costs or expenses.


 


12.                              INCREASED COSTS


 


12.1                       Increased
costs


 


(a)                                Subject to clause 12.3, the Borrower shall, within three Business
Days of a demand by the Agent, pay for the account of a Finance Party the
amount of any Increased Costs incurred by that Finance Party or any of its
Affiliates as a result of (i) the introduction of or any change in (or in
the interpretation, administration or application of) any law or regulation or (ii) compliance
with any law or regulation made after the date of this Agreement.


 


(b)                                In this Agreement “Increased Costs”
means:


 


(i)                                     a reduction in the rate of return from the Facility or on a Finance
Party’s (or its Affiliate’s) overall capital;


 


(ii)                                  an additional or increased cost; or


 


(iii)                               a reduction of any amount due and payable under any Finance
Document,


 


which is incurred or suffered by a Finance
Party or any of its Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or performing its
obligations under any Finance Document.


 


12.2                       Increased
cost claims


 


(a)                                A Finance Party intending to make a claim pursuant to clause 12.1
shall notify the Agent of the event giving rise to the claim, following which
the Agent shall promptly notify the Borrower.


 


(b)                                Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount of its Increased Costs.


 


12.3                       Exceptions


 


(a)                                Clause 12.1 does not apply to the extent any Increased Cost is:


 


(i)                                     attributable to a Tax Deduction required by law to be made by the
Borrower;


 


(ii)                                  compensated for by clause 11.3 (Tax indemnity)
(or would have been compensated for under clause 11.3 (Tax
indemnity) but was not so compensated solely because one of the
exclusions in clause 11.3(b) (Tax indemnity)
applied);


 


(iii)                               compensated for by the payment of Mandatory Costs; or


 


(iv)                              attributable to the wilful breach by the relevant Finance Party or
its Affiliates of any law or regulation.


 


41

















 


(b)                                In this clause 12.3, a reference to a “Tax
Deduction” has the same meaning given to the term in clause 11.1 (Definitions).


 


13.                              OTHER INDEMNITIES


 


13.1                       Currency
indemnity


 


(a)                                If any sum due from the Borrower under the Finance Documents (a “Sum”), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another
currency (the “Second Currency”) for the purpose
of:


 


(i)                                     making or filing a claim or proof against the Borrower; or


 


(ii)                                  obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,


 


the Borrower shall as an independent
obligation, within three Business Days of demand, indemnify each Finance Party
to whom that Sum is due against any cost, loss or liability arising out of or
as a result of the conversion including any discrepancy between (A) the
rate of exchange used to convert that Sum from the First Currency into the
Second Currency and (B) the rate or rates of exchange available to that
person at the time of its receipt of that Sum.


 


(b)                                The Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency or currency unit other than
that in which it is expressed to be payable.


 


13.2                       Indemnities
for Event of Default, etc


 


The Borrower shall, within two Business Days
of demand, indemnify each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability (together with irrevocable VAT) incurred by
that Finance Party as a result of:


 


(a)                                the occurrence or continuance of any Event of Default;


 


(b)                                a failure by the Borrower to pay any amount due under a Finance
Document on its due date including any cost, loss or liability arising as a
result of clause 24 (Sharing among the Finance
Parties);


 


(c)                                 funding or making arrangements to fund its participation in a Loan
requested by the Borrower in a Utilisation Request but not made by reason of
the operation of any one or more of the provisions of this Agreement; or


 


(d)                                a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.


 


13.3                       Indemnity
to the Agent and the Security Trustee


 


The Borrower shall promptly indemnify the
Agent and the Security Trustee against any cost, loss or liability incurred by
the Agent or the Security Trustee (or any agent or delegate appointed by the
Security Trustee):


 


(a)                                in the case of the Security Trustee (or any such agent or delegate),
incurred by it in the execution or purported execution of the trusts, powers,
authorities or 


 


42

















discretions vested in it by the Finance Documents and against
all liabilities, actions, proceedings, costs, claims and demands in respect of
any matter or thing done or omitted in any way relating to the Finance
Documents (other than in relation to its own gross negligence or wilful
default); and


(b)                                in the case of the Agent and the Security Trustee:


 


(i)                                     investigating any material event which it reasonably believes is a
Default; or


 


(ii)                                  acting or relying on any notice, request or instruction which it
believes to be genuine, correct and appropriately authorised.


 


13.4                       Survival


 


For the avoidance of doubt, the indemnities
in clauses 13.1 to 13.3 shall survive, and continue to apply notwithstanding,
any termination of this Agreement or any other Finance Document.


 


14.                              MITIGATION BY THE LENDERS


 


14.1                       Mitigation


 


(a)                                Subject to clause 14.2, each Finance Party shall, in consultation
with the Borrower, take all reasonable steps to mitigate any circumstances
which arise and which would result in any amount becoming payable pursuant to,
or cancelled pursuant to, any of clauses 7.1 (Illegality),
11 (Tax gross-up and indemnities), 12 (Increased costs) or Paragraph 3, schedule 4 (Mandatory Cost formulae) including transferring its rights
and obligations under the Finance Documents to another Affiliate or Facility
Office.


 


(b)                                Clause 14.1(a) does not in any way limit the obligations of the
Borrower under the Finance Documents.


 


14.2                       Limitation
of liability


 


(a)                                The Borrower shall indemnify each Finance Party for all reasonable
costs and expenses incurred by that Finance Party as a result of steps taken by
it under clause 14.1.


 


(b)                                A Finance Party is not obliged to take any steps under clause 14.1
if, in the opinion of that Finance Party, to do so might be prejudicial to it.


 


15.                              COSTS, EXPENSES AND FEES


 


15.1                       Transaction
expenses


 


The Borrower shall, within three Business
Days of demand, pay the Agent and the Security Trustee the amount of all
reasonable costs and expenses (including legal fees) (and any VAT payable in
respect of them) reasonably incurred by any of them in connection with the
negotiation, preparation, printing and execution of:


 


(a)                                any document referred to in this Agreement;


 


(b)                                any due diligence carried out by the Lenders’ external legal counsel
in connection with any proposed utilisation of the Facility; and


 


 


43

















 


(c)                                 any other Finance Documents executed after the date of the Effective
Date,


 


in each case up to any cap agreed between the
Agent or, as the case may be, the Security Trustee and the Borrower.


 


15.2                       Amendment
costs


 


If (a) the Borrower requests an
amendment, waiver or consent or (b) an amendment is required pursuant to
clause 25.9 (Change of currency), 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 that request or in connection with that required amendment.


 


15.3                       Amendment and restatement costs


 


The Borrower shall, as soon as reasonably
practical after receipt of invoices, 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 the amendment and restatement of this Agreement and the other Finance
Documents.


 


15.4                       Enforcement
costs


 


The Borrower shall, within two Business Days
of demand, pay to each Finance Party the amount of all reasonable costs and
expenses (including legal fees) (and any VAT payable in respect of them)
properly incurred by that Finance Party in connection with the enforcement of,
or the preservation of any rights under, any Finance Document.


 


15.5                       Security
Trustee expenses


 


(a)                                The Borrower shall, within two Business Days of demand, pay the
Security Trustee the amount of all reasonable costs and expenses (including
legal fees) (and any VAT payable in respect of them) properly incurred by it in
connection with the holding, administration, preservation, enforcement or
release of any Security created pursuant to any Security Document and acting as
Security Trustee under this Agreement and the Debenture.


 


(b)                                The Borrower shall pay to the Security Trustee the fees agreed in
the Fee Letter at the times agreed in the Fee Letter.


 


 


44

















 


SECTION 7

REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT


 


16.                              REPRESENTATIONS


 


Each of the Borrower (in respect of itself
only) and the Guarantor (in respect of the Borrower only) makes the
representations and warranties set out in clauses 16.1 (Status)
to 16.20 (Know your customer) (other than clause
16.10(b) and (c) (Written information))
to each Finance Party on the Effective Date.


 


Each of the Borrower and the Guarantor makes
the representations and warranties set out in clause 16.21 (Secured Property Loans) to each Finance Party on each
Closing Date in relation to a Relevant Secured Property Loan, with reference to
each Relevant Secured Property Loan to be made or acquired by the Borrower on
that Closing Date, insofar as applicable to the Relevant Secured Property Loan.


 


Each of the Borrower and the Guarantor makes
the representations and warranties set out in clause 16.22 (Non-approved Secured Property Loans) to each Finance Party
on each Closing Date in relation to a Non-approved Secured Property Loan, with
reference to each Non-approved Secured Property Loan to be made or acquired by
the Borrower on that Closing Date, insofar as applicable to the Non-approved
Secured Property Loan.


 


The Guarantor (in respect of itself only)
makes the representations and warranties set out in clauses 16.1 (Status) to 16.8 (No filing or stamp taxes),
16.11 (Financial statements), 16.13 (Proceedings and judgments) and 16.18 (No immunity
from suit) to each Finance Party on the Effective Date.


 


16.1                       Status


 


(a)                                It is a limited liability company, duly incorporated and validly
existing under the law of its jurisdiction of incorporation.


 


(b)                                It has the power to own its assets, create security over its assets
and carry on its business as it is being conducted.


 


16.2                       Binding
obligations


 


The obligations expressed to be assumed by it
in each Finance Document are legal, valid, binding and enforceable, subject to:


 


(a)                                any applicable bankruptcy, insolvency, receivership, reorganisation,
moratorium, examination, liquidation, court scheme, trust, court protection,
preferential creditors, limitation of action and other laws affecting the
enforcement of creditors’ rights generally;


 


(b)                                any general principles of equity, regardless of whether the
enforcement is considered in a proceeding in equity or at law; or


 


(c)                                 in the case of any Security Document, the requirements specified at
the end of clause 16.5.


 


16.3                       Non-conflict
with other obligations


 


The entry into and performance by it of, and
the transactions contemplated by, the Finance Documents do not and will not
conflict with:


 


45

















 


(a)                                any law or regulation applicable to it;


 


(b)                                its constitutional documents; or


 


(c)                                 any agreement or instrument binding upon it or any of its assets,


 


nor (except as provided in any Security
Document) result in the existence of, or oblige it to create, any Security over
any of its assets.


 


16.4                       Power
and authority


 


It has the power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it is a party and
the transactions contemplated by those Finance Documents.


 


16.5                       Validity
and admissibility in evidence


 


All Authorisations required or desirable:


 


(a)                                to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a party;


 


(b)                                to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation; and


 


(c)                                 to enable it to create the Security to be created by it pursuant to
any Security Document and to ensure that such Security has the priority and
ranking it is expressed to have,


 


have been obtained or effected and are in
full force and effect save for the making of the appropriate registrations of
the Security Documents with the UK Registrar of Companies, the Irish Companies
Registration Office, the Irish Revenue Commissioners and (in relation to
sub-charges over land in England and Wales) the Land Registry and the payment
of Irish stamp duty of €630 on one counterpart of the Debenture and €12.50 on
each other counterpart of the Debenture.


 


16.6                       Governing
law and enforcement


 


(a)                                The choice of English law, Scottish law or, as the case may be,
German law as the governing law of the Finance Documents will be recognised and
enforced against the Borrower in its jurisdiction of incorporation.


 


(b)                                Any judgment obtained against it in England, Scotland or, as the
case may be, Germany in relation to a Finance Document will be recognised and
enforced against it in its jurisdiction of incorporation (subject to any
general principles of law as at the date of this Agreement which are
specifically referred to in any legal opinion delivered pursuant to clause
4.2).


 


16.7                       Deduction
of Tax


 


It is not required under the law of its jurisdiction of
incorporation to make any deduction for or on account of Tax from any payment
it may make under any Finance Document.


 


46














 


16.8                          No filing or stamp taxes


 


Under
the law of its jurisdiction of incorporation (except for the registrations
referred to in clause 16.5 in respect of the Finance Documents as at the date
of this Agreement and any registrations relating to further Finance Documents
which are effected within the applicable period prescribed by law, and the
registration fees payable in connection with those registrations) it is not
necessary that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp, registration
or similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents, other than filing for
registration of the land charges (Grundschulden)
to be created over German Property and notary fees and registration fees
payable in connection with the creation, the assignment and registration of
such land charges (Grundschulden).


 


16.9                          No default


 


(a)                                No Default is
continuing or might be expected to result from the making of any Utilisation.


 


(b)                               No other event or
circumstance is outstanding which constitutes a default under any other
agreement or instrument which is binding on it or to which its assets are
subject.


 


16.10                    Written information


 


(a)                                All factual
information (excluding any forecasts or projections) (“Information”)
in relation to the Transaction provided in writing by the Borrower to a Finance
Party prior to the Effective Date is true and accurate in all respects.


 


(b)                               The Information contained
in each Monthly Report, all Information supplied pursuant to clause 17 and all
written Information compiled and supplied by the Borrower to a Finance Party in
connection with a Secured Property Loan (including the Initial Secured Property
Loan Package and the Secured Property Loan Actual Documentation) is so far as
the Borrower is aware, true and accurate in all material respects and does not
contain any material omissions as at its date and, so far as the Borrower is
aware, all written Information compiled by a third party and supplied by the
Borrower or the Servicer to a Finance Party in relation to a Secured Property
Loan or a Non-approved Secured Property Loan is true and accurate in all
respects.


 


(c)                                Since the making of
each Secured Property Loan, accounts, books and records showing all
transactions, payments, receipts, proceedings and notices relating to arrears
or arrangements relating to that Secured Property Loan have been kept and all
such accounts, books and records are up to date and accurate in all respects
and are in the possession or held to the order of the Servicer or the Borrower.


 


16.11                    Financial statements


 


The
accounts most recently delivered to the Agent by the Borrower and the Guarantor
pursuant to clause 17.1 (Financial statements):


 


(a)                                have been prepared in
accordance with GAAP consistently applied; and


 


 


47

















 


(b)                               fairly represent its
financial condition and operations as at the date to which they were drawn up.


 


16.12                    Pari passu ranking


 


(a)                                Subject to the
requirements specified at the end of clause 16.5, each Security Document
creates (or, once entered into, will create) in favour of the Security Trustee
for the benefit of the Secured Parties the Security which it is expressed to
create with the ranking and priority it is expressed to have subject to any
general principles of law as of the date of this Agreement which are
specifically referred to in any legal opinion delivered pursuant to clause 4.2.


 


(b)                               The Borrower’s payment
obligations under the Finance Documents rank at least pari passu with the
claims of all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law applying to companies generally.


 


16.13                    Proceedings and judgments


 


(a)                                In the case of the
Borrower, no litigation, arbitration, examinership or administrative
proceedings of or before any court, arbitral body or agency which, if adversely
determined (and there is a reasonable likelihood of this), might be expected to
result in a judgment against it for a monetary sum in excess of £1,000,000 have
been started or (to the best of its knowledge and belief) threatened against
it.


 


(b)                               In the case of the
Guarantor, no litigation, arbitration, examinership or administration proceedings
of or before any court, arbitral body or agency have resulted in a judgment or
decree which meets the conditions set out in clause 19.7(b) (Litigation; judgments).


 


16.14                    Security


 


(a)                                As at the date of this
Agreement, no Security exists over all or any of its present or future revenues
or other assets other than Security created under the Finance Documents.


 


(b)                               The security conferred
by or pursuant to the Debenture and/or, as the case may be, the German Security
Documents constitutes a first priority security interest of the type described
in the Debenture over the Secured Assets (as defined in the Debenture and/or,
as the case may be, the Master Security Trust Agreement) over the Charged
German Property (as defined in the Master Security Trust Agreement), which is
not subject to any prior or pari passu Security and which is not liable to
avoidance on the liquidation, examination, court protection or administration
of the Borrower.


 


16.15                    No employees, Subsidiaries or other
activities/assets


 


(a)                                The Borrower has no
employees or Subsidiaries; nor does it own or occupy any premises.


 


(b)                               As at the date of this
Agreement, the Borrower has not engaged in any activities (including the
payment of dividends or the making of any distributions) since its incorporation
other than the execution of the Finance Documents and the performance of its
obligations under the Finance Documents.


 


48

















 


(c)                                The Borrower has no
assets other than Relevant Secured Property Loans Assets (and any assets
relating to them) and Non-approved Secured Property Loan Assets (and any assets
relating to them).


 


16.16                    Ownership of the Borrower


 


The
whole of the issued share capital of the Borrower is directly or indirectly
owned by Capmark Bank Europe p.l.c. or its holding companies.


 


16.17                    Registration requirements


 


Except
for the registrations and the payment of Irish stamp duty referred to in clause
16.5 in respect of the Finance Documents, as at the date of this Agreement and
any registrations relating to further Finance Documents which are effected
within the applicable period prescribed by law, and the registration fees
payable in connection with those registrations and the registration of the land
charges (Grundschulden) to be created over German
Property and notary fees and registration fees payable in connection with the
creation, the assignment and registration of such land charges (Grundschulden), it is not necessary that any of the Finance
Documents be filed, recorded or enrolled with any authority, or that any stamp,
registration or similar Tax be paid on or in respect of them.


 


16.18                    No immunity from suit


 


In
any proceedings taken in relation to this Agreement, it will not be entitled to
claim for itself or any of its assets immunity from suit, execution, attachment
or other legal process.


 


16.19                    Centre of main interest; Tax; rating


 


(a)                                The Borrower’s centre
of main interest (for the purpose of EU Council Regulation 1346/2000 EC on
Insolvency Proceedings) is in Ireland.


 


(b)                               The Borrower is
effectively managed and controlled in Ireland for the purposes of Irish Tax.


 


(c)                                The Borrower has paid
all Tax which it has become liable to pay.


 


(d)                               The Borrower is a
qualifying company under s110 Irish Taxes Consolidation Act 1997.


 


16.20                    Know your customer


 


It
has complied with all “know your customer” or other similar checks required on
its part under all applicable laws and regulations in relation to the Secured
Property Loan Borrowers and prior lenders of any Relevant Secured Property Loan
and any Non-approved Secured Property Loan.


 


16.21                    Secured Property Loans


 


(a)                                On each Closing Date
in relation to a Relevant Secured Property Loan, the Borrower represents and
warrants to each Finance Party, in respect only of each Relevant Secured Property
Loan to be made or acquired by the Borrower on that Closing Date, that the
representations and warranties set out in schedule 9 (Representations
and warranties of the Borrower regarding the Secured Property 


 


 


49

















 


                                              Loans) are true and
correct, in each case subject to any matters disclosed in writing to the Agent.


 


(b)                               On each Closing Date
in relation to a Relevant Secured Property Loan, the Borrower represents and
warrants to each Finance Party, in respect only of each Relevant Secured
Property Loan to be made or acquired by the Borrower on that Closing Date,
that:


 


(i)                                   the Secured Property
Loan Eligibility Criteria are satisfied in respect of that Relevant Secured
Property Loan;


 


(ii)                                the Secured Property Loan
Agreement for that Relevant Secured Property Loan is in substantially the form
supplied to the Agent as part of the Secured Property Loan Actual Documentation
for that Relevant Secured Property Loan; and


 


(iii)                             the Borrower has not
waived without the prior written consent of the Agent, any condition precedent
contained in the Secured Property Loan Agreement which a reasonably prudent
lender would consider material to that Relevant Secured Property Loan or the
Collateral Security to be granted in relation to it,


 


in
each case subject to any matters disclosed in writing to the Agent.


 


16.22                    Non-approved Secured Property Loans


 


(a)                                On each Closing Date
in relation to a Non-approved Secured Property Loan, the Borrower represents
and warrants to each Finance Party that the representations and warranties set
out in schedule 9 (Representations and
warranties of the Borrower regarding the Secured Property Loans)  are true and correct in respect of each
Non-approved Secured Property Loan to be made or acquired by the Borrower on
that Closing Date, in each case subject to any matters disclosed in writing to
the Agent.


 


(b)                               On each Closing Date
in relation to a Non-approved Secured Property Loan, the Borrower represents
and warrants to each Finance Party, in respect only of each Non-approved
Secured Property Loan to be made or acquired by the Borrower on that Closing
Date, that:


 


(i)                                   the Non-approved
Secured Property Loan Eligibility Criteria are satisfied in respect of that
Non-approved Secured Property Loan;


 


(ii)                                the Non-approved
Secured Property Loan Agreement for that relevant Non-approved Secured Property
Loan will be in substantially the form supplied to the Agent as part of the
Secured Property Loan Actual Documentation for the corresponding Non-approved
Secured Property Loan; and


 


(iii)                             the Borrower has not
waived without the prior consent of the Agent, any condition precedent
contained in the Non-approved Secured Property Loan Agreement which a
reasonably prudent lender would consider material to that Non-approved Secured
Property Loan or the Collateral Security to be granted in relation to it,


 


in
each case subject to any matters disclosed in writing to the Agent.


 


50

















 


16.23                    Material Adverse Effect


 


Each
of the Borrower and the Guarantor represents and warrants that, as at the
Effective Date, there do not exist any references to Material Adverse Effect
(as defined in the Original Facility Agreement) or any other substantially
similar concept with respect to any other Financial Indebtedness guaranteed by
the Guarantor arising from asset-backed or secured facilities to which it or
any of its Subsidiaries is a party.


 


16.24                    Repetition


 


The
Repeating Representations are deemed to be made as applicable by the Borrower and
the Guarantor by reference to the facts and circumstances then existing on the
date of each Utilisation Request, each Utilisation Date and the first day of
each Interest Period and the date of partial repayment of any Loan in
accordance with clause 7.4 (c).


 


17.                                INFORMATION
UNDERTAKINGS


 


The
undertakings in this clause 17 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


17.1                          Financial statements


 


(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 120 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.


 


(b)                               The Guarantor shall supply
to the Agent (in sufficient copies for all the Lenders) and to the Security
Trustee, as soon as the same becomes available, an unaudited financial report
for each quarter.


 


(c)                                The Borrower shall
supply to the Agent (in sufficient copies for all the Lenders) and to the
Security Trustee, as soon as the same becomes available, an unaudited financial
report for each month.


 


17.2                          Requirements as to financial statements


 


(a)                                Each set of financial
statements delivered by the Borrower pursuant to clause 17.1 shall be certified
by a director of the Borrower as fairly representing its financial condition
and operations as at the end of and for the financial year or half year in
relation to which those financial statements were drawn up.


 


(b)                               The Borrower shall
procure that each set of financial statements delivered pursuant to clause 17.1
is prepared using GAAP and in the case of clause 17.1(a) audited by a firm
of accountants of international repute.


 


17.3                          Relevant Secured Property Loans


 


(a)                                The Borrower shall:


 


51

















 


(i)                                   on a monthly basis,
cause to be promptly supplied (in sufficient copies for all the Lenders and the
Security Trustee) the information set out in schedule 8 (Secured
Property Loan Information) in relation to each Relevant Secured
Property Loan;


 


(ii)                                cause to be promptly
supplied to the Agent (in sufficient copies for all the Lenders) and the
Security Trustee a copy of each report produced by the Servicer under the
Servicing Agreement; and


 


(iii)                             cause to be supplied
to the Agent and the Security Trustee as soon as practicable, and in any event
within five Business Days, notice of any default by a Secured Property Loan
Borrower or by any significant tenant of a Property in either case relating to
a Relevant Secured Property Loan or of any other significant event occurring in
relation to a Relevant Secured Property Loan (including in relation to any
relevant Property).


 


(b)                               The Borrower shall
procure that the Servicer shall give each Finance Party access to the investor
website “IQ”  in relation to
the Relevant Secured Property Loans upon, and subject to each Finance Party
accepting that it is bound by, the terms imposed by the Servicer from time to
time in respect of that access.


 


(c)                                The Borrower shall
(and shall procure that the Servicer shall) permit the Security Trustee and its
representatives:


 


(i)                                   access to all books
and records, accounts, documentation and other information maintained by each
of the Borrower and the Servicer in relation to the Relevant Secured Property
Loans (including in particular the Secured Property Loan Actual Documentation
and Title Deeds relating to each Relevant Secured Property Loan) and their
respective obligations under the Finance Documents; and


 


(ii)                                to conduct such audits
or other investigations as it may require in connection with any Finance Party’s
rights and obligations under this Agreement.


 


(d)                               The Security Trustee
shall be entitled to have the access referred to in clause 17.3(c)(i) for
itself and its representatives (which shall in that instance include access to
the premises where the information is maintained) and to conduct the audits and
investigations referred to in clause 17.3(c)(ii):


 


(i)                                   subject to clause
17.3(d)(ii), no more than once in any period of 12 months; and


 


(ii)                                at any time during the
continuance of a Default, in each case upon reasonable notice at any time
agreed between the Borrower and the Security Trustee (or failing agreement, at
such reasonable times during normal business hours as the Security Trustee may
determine).


 


(e)                                If and to the extent
that the Security Trustee does not avail itself (either by itself or its
representatives) of its rights pursuant to clause 17.3(c) and (d), then
the Agent may do so in its stead (with any references in clause 17.3(c) and
(d) to the Security Trustee being construed as a reference to the Agent
for this purpose).


 


52

















 


17.4                          Servicing compliance


 


(a)                                The Borrower shall
procure that the Servicer provides to the Agent (in sufficient copies for all
the Lenders) and the Security Trustee promptly on the same becoming available
an annual rating report of Fitch Ratings (or another internationally recognised
rating agency) on the Servicer.


 


(b)                               The Borrower shall
procure that accompanying that annual report the Servicer shall certify in
writing to the Agent and the Security Trustee that it has in all material
respects complied, in relation to the Relevant Secured Property Loans, with the
servicing and collection procedures and policies made available to Fitch
Ratings (or the other rating agency) in the preparation of its report.


 


(c)                                For the avoidance of
doubt, nothing in the Finance Documents shall require the Servicer to make
available to any Finance Party its servicing and collection procedures and
policies.


 


17.5                          Non-approved Secured Property Loans


 


The
Borrower shall, on each Closing Date in respect of a Non-approved Secured
Property Loan and thereafter on monthly basis so long as such Non-approved
Secured Property Loan remains funded by the Interim Funder:


 


(a)                                cause to be promptly
supplied to the Agent (in sufficient copies for all the Lenders and the
Security Trustee) the information set out in schedule 8 (Secured
Property Loan Information) in relation to such Non-approved Secured
Property Loan; and


 


(b)                               cause to be supplied
to the Agent and the Security Trustee as soon as practicable, and in any event
within five Business Days, notice of any default by a Non-approved Secured
Property Loan Borrower or by any significant tenant of a Property in either
case relating to a Non-approved Secured Property Loan or of any other
significant event occurring in relation to a Non-approved Secured Property Loan
(including in relation to any relevant Property), and notice of repayment of
such Non-approved Secured Property Loan unless repayment results from a
Utilisation under this Agreement.


 


17.6                          Information: miscellaneous


 


The
Borrower shall supply to the Agent (in sufficient copies for all the Lenders,
if the Agent so requests) and to the Security Trustee:


 


(a)                                copies of any material
documents dispatched by it to its shareholders (or any class of them) or its
creditors generally at the same time as it is dispatched;


 


(b)                               promptly upon becoming
aware of them, the details of any litigation, arbitration or administrative
proceedings which are current, threatened or pending against it; and


 


(c)                                promptly, such further
information regarding its financial condition, business and operations as any
Finance Party (through the Agent) may request.


 


17.7                          Notification of default


 


(a)                                The Borrower shall
notify the Agent and the Security Trustee of:


 


(i)                                   any Default (and the
steps, if any, being taken to remedy it);


 


53

















 


(ii)                                any failure of any
other member of the Group to pay any Financial Indebtedness when due,


 


in
each case promptly upon becoming aware of its occurrence and in any event
within three Business Days of such occurrence.


 


(b)                               On or about each
anniversary of the date of this Agreement and within three Business Days of a
request from time to time by the Agent or the Security Trustee, the Borrower
shall supply to the Agent or, as the case may be, the Security Trustee a
certificate signed by two of its directors or senior officers on its behalf
certifying that no Default is continuing (or if a Default is continuing,
specifying the Default and the steps, if any, being taken to remedy it).


 


(c)                                The Borrower shall,
immediately on receipt or notice of the same, supply to the Agent and the
Security Trustee full details of any application to the court for an
administration order under Paragraph 10, Schedule B1 Insolvency Act made in
respect of the Borrower and (without prejudice to Paragraph 12(2), Schedule B1
Insolvency Act 1986) of any actual or proposed appointment of an administrator
by the holder of a qualifying floating charge (within the meaning of Paragraph
14, Schedule B1 Insolvency Act 1986) or (without prejudice to Paragraph 26(1),
Schedule B1 Insolvency Act 1986) by the Borrower or its directors or of the
commencement of any examinership.


 


(d)                               The Borrower will give
immediate notice to the Agent and the Security Trustee promptly upon its
becoming aware of any proposal to present a petition to appoint an examiner or
liquidator or analogous official to it.


 


(e)                                The Borrower will give
immediate notice to the Agent and the Security Trustee upon its becoming aware
of any steps being taken to hold it or the Guarantor or any Affiliate of either
of them liable for the whole or any part of the debts of a Related Company or
of any contribution order made under the Irish Companies Acts (including, s140
Irish Companies Act 1990) or any analogous legislation with respect to the
Borrower, the Guarantor or any Affiliate of either of them.


 


17.8                          “Know your customer” checks


 


(a)                                If:


 


(i)                                   the introduction of or
any change in (or in the interpretation, administration or application of) any
law or regulation made after the date of this Agreement;


 


(ii)                                any change in the
status of the Borrower after the date of this Agreement; or


 


(iii)                             a proposed assignment
or transfer by a Lender in accordance with the terms of this Agreement of any
of its rights and obligations under this Agreement to a person that is not a
Lender prior to such assignment or transfer,


 


obliges
the Agent or any Lender (or, in the case of clause 17.6(a)(iii), any
prospective new Lender) to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information is
not already available to it, the Borrower shall promptly upon the request of
the Agent 


 


 


54

















 


or
any Lender supply such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in clause 17.6(a)(iii), on
behalf of any prospective new Lender) in order for the Agent, such Lender or,
in the case of the event described in clause 17.6(a)(iii), any prospective new
Lender to carry out and be satisfied it has complied with all necessary “know
your customer” or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance Documents.


 


(b)                               Each Lender shall
promptly upon the request of the Agent supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent (for
itself) in order for the Agent to carry out and be satisfied it has complied
with all necessary “know your customer” or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in
the Finance Documents.


 


18.                                GENERAL
UNDERTAKINGS


 


The
undertakings in this clause 18 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


18.1                          Authorisations


 


(a)                                The Borrower shall
promptly:


 


(i)                                   obtain, comply with
and do all that is necessary to maintain in full force and effect; and


 


(ii)                                supply certified copies
to the Agent and the Security Trustee of,


 


any
Authorisation required under any law or regulation of its jurisdiction of
incorporation or any other relevant jurisdiction to enable it to perform its
obligations under the Finance Documents, to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation, or any other relevant jurisdiction of any Finance Document and
otherwise to carry on its business.


 


(b)                               The Borrower shall
ensure that the registrations specified at the end of clause 16.5 (Validity and admissibility in evidence) are made promptly.


 


18.2                          Compliance with laws


 


The
Borrower shall comply in all respects with all laws and regulations to which it
may be subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents and shall pay all of its
Taxes as they fall due for payment.


 


18.3                          Negative pledge


 


The
Borrower shall not create or permit to subsist any Security over any of its
assets other than such as may be effected by or pursuant to the Finance
Documents.


 


55

















 


18.4                          Disposals


 


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


 


(iii)                             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).


 


(b)                               It is the intention of
the Parties that the Security Documents should not create any Security over any
Non-approved Secured Property Loan Assets. 
Each Finance Party shall promptly grant such releases and take such
other steps as the Borrower may reasonably request to release from the Security
constituted by the Security Documents any Non-approved Secured Property Loan
and related Non-approved Secured Property Loan Assets, to the extent that they
are (contrary to the Parties’ intention) within that Security.


 


(c)                                The Borrower shall
dispose of any Non-approved Secured Property Loan within two months of the
Agent notifying the Borrower that the Lenders have finally refused to make a
Loan in respect of it.


 


18.5                          Corporate matters


 


(a)                                The Borrower shall not
enter into any amalgamation, demerger, merger or corporate reconstruction.


 


(b)                               The Borrower shall not
without the prior written consent of the Agent:


 


(i)                                   declare any dividend
(other than a dividend not exceeding in respect of any accounting period its
after-tax profit for that period) or other distribution in respect of its
shares, provided that this does not apply to any payment of interest under the
terms of the Relevant Subordinated Loan Agreement or any Non-approved Secured
Property Loan Interim Funding Agreements or to any dividend or distribution
funded by a payment made to the Borrower or at its direction pursuant to clause
8 (Receipts and payments) of the Debenture;


 


(ii)                                issue any further
shares, reduce its share capital or alter any rights attaching to its issued
shares in each case in a manner which might reasonably be expected materially
to prejudice the interests of the Lenders in respect of the Facility; or


 


(iii)                             otherwise amend its
constitutional documents.


 


18.6                          Change of business, employees and assets


 


(a)                                The Borrower shall not
carry on any business other than the making, acquisition, sale, securitisation,
refinancing and realisation of the Secured Property Loans and 


 


56

















 


                                              all activities
incidental to those transactions or required to perform its obligations under
the Finance Documents.


 


(b)                               The Borrower shall not
have any employees (for the avoidance of doubt, the directors of the Borrower
shall not be employees for these purposes).


 


(c)                                The Borrower shall not
own, rent, lease or be in possession of any buildings or equipment or any other
assets other than Relevant Secured Property Loan Assets and Non-approved
Secured Property Loan Assets.


 


18.7                          Lending


 


The
Borrower shall not make any loans (other than Secured Property Loans) or give
any other form of credit or give any guarantee or indemnity to or for the
benefit of any person in respect of any obligation of any other person.


 


18.8                          Borrowing


 


(a)                                The Borrower shall not
incur any Financial Indebtedness other than (i) to a Finance Party under
the Finance Documents, (ii) to the Subordinated Lender under the Relevant
Subordinated Loan Agreement or (iii) to the Interim Funder under the
Non-approved Secured Property Loan Interim Funding Agreements, provided that:


 


(i)                                   the Agent shall
receive a Utilisation Request in respect of any Loan made under the
Non-approved Secured Property Loan Interim Funding Agreements within two months
of the funding of such Loan under the Non-approved Secured Property Loan
Interim Funding Agreement; and


 


(ii)                                in the event that the
Lenders refuse to refinance such Loan under this Facility, the Borrower shall
repay such under the Non-approved Secured Property Loan Interim Funding
Agreements within two months of such refusal; and


 


(iii)                             the maximum aggregate
amount made available to the Borrower under the Non-approved Secured Property
Loan Interim Funding Agreements shall not exceed £500,000,000 at any time.


 


18.9                          Hedging


 


The
Borrower shall ensure that, in relation to each Relevant Secured Property Loan:


 


(a)                                to the extent that the
Secured Property Loan Borrower is entitled to pay a fixed rate of interest, the
Borrower has the benefit of a hedging agreement with the Swap Counterparty
pursuant to the Master Swap Agreement pursuant to which the Borrower has
swapped its fixed rate receipt for a floating rate payment from the Swap
Counterparty; and


 


(b)                               to the extent that clause 18.9(a) does not
apply, the Secured Property Loan Borrower has the benefit of an interest rate
swap or cap with the Swap Counterparty (or another counterparty acceptable to
the Agent) pursuant to a form of hedging agreement the benefit of which has
been assigned or charged to the Borrower and forms part of the Collateral
Security for the Relevant Secured Property Loan.


 


57














 


 


18.10                    The
Relevant Secured Property Loans


 


The
Borrower shall:


 


(a)                                 save as
required by law, or with the prior consent of the Finance Parties, ensure that
no reference to this Agreement or any Finance Party or any Subsidiary or
Holding Company (as defined in s736 Companies Act 1985) of any Finance Party
(in its capacity as a Finance Party) is made in documentation, correspondence
or marketing relating to the origination of Relevant Secured Property Loans;


 


(b)                                use its best
endeavours to ensure that the Servicer complies with its obligations under the
Servicing Agreement and in particular that Servicer shall exercise all of its
discretions under any of the Finance Documents in a manner that is not
prejudicial to any Finance Party;


 


(c)                                 promptly report
to the Agent at the Agent’s request and to the Security Trustee if it so
requests regarding the performance of the Servicer under the Servicing
Agreement;


 


(d)                                exercise all
its rights to ensure that the Servicer keeps up-to-date, full and proper
accounts, books and records showing clearly all transactions, payments,
receipts and proceedings relating to the Relevant Secured Property Loans and
the Collateral Security which are in the possession of or held to the order of
the Borrower;


 


(e)                                 not without the
consent of the Security Trustee and the Agent terminate the Servicing
Agreement, nor take steps which could lead to any such termination, unless a
successor or replacement servicer approved in writing in advance by the Lender
has been appointed;


 


(f)                                   not sell, transfer
or otherwise dispose of any Relevant Secured Property Loan or Collateral
Security save as referred to in clause 18.4;


 


(g)                                use all
reasonable endeavours to ensure that all Relevant Secured Property Loans are
documented in substantially the form of Secured Property Loan Standard
Documentation;


 


(h)                                take all steps
a reasonable lender would take to enforce its rights under the Mortgage Loan
Actual Documentation relating to each Relevant Secured Property Loan;


 


(i)                                    not, nor will
it permit others to, amend or waive any provision of any Secured Property Loan
Actual Documentation in respect of any Relevant Secured Property Loan in any
manner which might be expected to materially and adversely affect the value of
such Relevant Secured Property Loan;


 


(j)                                    ensure that (i) all
payments made by each Secured Property Loan Borrower to the Borrower with
respect to any Relevant Secured Property Loan are directed to be made to the
Borrower Account or, as applicable, the CSA Account (and provided that all such
payments made pursuant to direct debit or other similar arrangements entered
into between each relevant Secured Property Loan Borrower and the Borrower are
directed to be made to the Borrower Account), (ii) no payments are made
out of the Borrower Account or the CSA Account other


 


 


 


58

















 


 


than
as permitted or contemplated by the Finance Documents and (iii) neither
the Borrower Account nor the CSA Account is overdrawn;


 


(k)                                 not release any
Security in respect of any Relevant Secured Property Loan unless it has been
irrevocably paid in full and all facilities which might give rise to Secured
Obligations (as that term is defined in the relevant Secured Property Loan
Agreement) have terminated; and


 


(l)                                    not without the
prior consent of the Agent and the Security Trustee, open or maintain any bank
account, other than the Borrower Accounts, the CSA Account and any account (in
respect of which the Finance Parties shall not be entitled to any Security)
into which any monies relating to Non-approved Secured Property Loans may be
paid.


 


18.11                    Covenants
in respect of hedging


 


The
Borrower undertakes that it will:


 


(a)                                 diligently
enforce the indemnities in respect of hedging and related breakage costs as set
out in each Secured Property Loan Agreement; and


 


(b)                                forthwith pay
all sums due to the Swap Counterparty pursuant to the Master Swap Agreement, in
accordance with and subject to the terms of the Debenture.


 


18.12                    Finance
Documents


 


In
respect of each Finance Document, the Borrower shall:


 


(a)                                 notify the
Agent and the Security Trustee as soon as it becomes aware of any breach of it
(other than by a Finance Party) and the Security Trustee which might reasonably
be expected materially and adversely to affect the interests of the Lenders in
respect of the Facility;


 


(b)                                not without the
prior written consent of the Agent agree to any amendment of it or to any
waivers of any of its rights under it which might reasonably be expected
materially and adversely to affect the interests of the Lenders in respect of
the Facility;


 


(c)                                 except in the
case of the Servicing Agreement to which clause 18.10(b) relates, use its
reasonable endeavours to enforce its rights under it (other than those against
any Finance Party); and


 


(d)                                ensure that it
is not terminated without a replacement acceptable to the Agent being
implemented as soon as reasonably practicable.


 


18.13                    Securitisation


 


The
Borrower shall procure that no arrangement or distribution mandate shall be
awarded by any member of the Group relating to the Relevant Secured Property
Loans unless:


 


(a)                                 a written
request has been made of IXIS Corporate & Investment Bank asking for a
proposal for the provision of the relevant services by IXIS Corporate &
Investment Bank; and


 


 


 


59

















 


 


(b)                                any proposal
made by IXIS Corporate & Investment Bank (within any reasonable time
limit set out in the written request) has been considered by the relevant
member of the Group.


 


18.14                    Undertakings
of the Guarantor


 


The
Guarantor will:


 


(a)                                 procure that,
so far as it is aware, at the time of the Borrower agreeing to any prospective
Secured Property Loans, such Secured Property Loans are, in all material
respects, of a credit quality not less than comparable commercial mortgage
loans originated by Capmark Bank Europe p.l.c. or any of its Affiliates in the
course of their ordinary business as a lender of commercial mortgage loans, but
it shall not (unless due to its default in the performance of its obligations
under this clause 18.14(a)) be liable to any Finance Party, the Swap
Counterparty or the Borrower for any losses, damages or expenses incurred as a
result of the failure by a Secured Property Loan Borrower to repay a Secured
Property Loan (or to pay any other amount due) in whole or in part; and


 


(b)                                promptly
provide all such information as the Agent may reasonably request to enable the
Agent to satisfy itself as to its compliance with clause 18.14(a).


 


18.15                Reinstatement
of Material Adverse Effect


 


The
Parties agree that if the Guarantor or any of its Subsidiaries (with respect to
Financial Indebtedness guaranteed by the Guarantor) includes or permits to be
included a reference to Material Adverse Effect (as defined in the Original
Facility Agreement) or any other substantially similar concept in relation to
any other Financial Indebtedness arising from asset-backed or secured
facilities to which it or any of its Subsidiaries is a party, then (i) the
definition of Material Adverse Effect in clause 1.1 and (ii) clause 19.14
of the Original Facility Agreement shall both immediately be deemed to be
reinstated in the Facility Agreement as if they had never been deleted.


 


19.                                EVENTS OF DEFAULT


 


Each
of the events or circumstances set out in clauses 19.1 to 19.14 is an Event of
Default.


 


19.1                          Non-payment


 


The
Borrower does not pay on the due date any amount payable pursuant to a Finance
Document at the place at and in the currency in which it is expressed to be
payable unless:


 


(a)                                 its failure to
pay is caused by administrative or technical error outside the Borrower’s
control; and


 


(b)                                payment is made
within three Business Days of its due date.


 


19.2                          Other
obligations


 


(a)                                 Any party to
any of the Finance Documents (other than a Finance Party) fails to comply with
any of the provisions of clauses 3 (Purpose),
17.5(c), (d) and (e) (Notification of default),
18.3 (Negative pledge) or 18.4 (Disposals) of this Agreement.


 


 


 


60

















 


 


(b)                                Any party to
any of the Finance Documents (other than a Finance Party) does not comply with
any other provision of any Finance Document, but no Event of Default will occur
if the failure to comply is capable of remedy and is remedied within, in the
case of a failure to comply with clause 17.2 (Monthly
report), 30 Business Days, or in any other case, 30 days of the
failure to comply.


 


19.3                          Misrepresentation


 


Any
representation, warranty or statement made or deemed to be made by any party to
any of the Finance Documents (other than a Finance Party) or any other document
delivered by or on behalf of such party under or in connection with any Finance
Document is or proves to have been incorrect or misleading in any material
respect (or insofar as any representation, warranty or statement is already
qualified by reference to materiality, in any respect) when made or deemed to
be made, but no Event of Default will occur if the failure to comply is capable
of remedy and is remedied within two Business Days of the failure to comply.


 


19.4                          Insolvency


 


(a)                                 An Act of
Insolvency occurs with respect to any member of the Group.


 


(b)                                The Borrower
without the Agent’s prior written consent ceases or suspends, or threatens to
cease or suspend all or a material part of its business as operated on the date
of this Agreement or enters into any unrelated business not contemplated by
this Agreement.


 


(c)                                 Any other member of the Group without the Agent’s prior written consent
ceases or suspends all or a substantial part of its business, which in turn
constitutes a substantial part (more than 25 per cent.) of the Group’s business, taken as a whole, as operated on the date of this
Agreement.


 


19.5                          Cross
default


 


(a)                                 Any Financial
Indebtedness of any member of the Group is not paid when due nor within any
originally applicable grace period.


 


(b)                                Any Financial
Indebtedness of any member of the Group is declared to be or otherwise becomes
due and payable prior to its specified maturity as a result of an event of
default (however described).


 


(c)                                 Any commitment
for any Financial Indebtedness of any member of the Group is cancelled or
suspended by a creditor of any member of the Group as a result of an event of
default (however described).


 


(d)                                Any creditor of
any member of the Group becomes entitled to declare any Financial Indebtedness
of any member of the Group due and payable prior to its specified maturity as a
result of an event of default (however described).


 


(e)                                 No Event of
Default will occur under:


 


(i)                                     this clause
19.5 if the aggregate amount of Financial Indebtedness or Commitment for Financial
Indebtedness falling within clause 19.5(a) to (d) is:


 


(1)                                 in respect of
the Borrower, less than £1,000,000; and


 


 


 


61

















 


 


(2)                                 in respect of
each other member of the Group, less than US$50,000,000, or in each case its
equivalent in any other currency or currencies;


 


(ii)                                  clause 19.5(a),
(b) or (d) in the case of Financial Indebtedness owed other than to
IXIS Corporate & Investment Bank, unless the relevant creditor issues
a written demand for immediate repayment of the relevant Financial
Indebtedness; or


 


(iii)                               clause 19.5(c),
in the case of Financial Indebtedness owed other than to IXIS Corporate &
Investment Bank.


 


19.6                          Creditors’
Process


 


Any
expropriation, attachment, sequestration, distress, execution or diligence
(each a “Creditor’s Process”) affects any asset
or assets of:


 


(a)                                 the Borrower
and is not discharged within 10 Business Days; or


 


(b)                                any other
member of the Group which:


 


(i)                                     shall not have
been discharged within 60 days; and


 


(ii)                                  involves a
liability (not paid or fully covered by insurance) of either:


 


(1)                                 US$50,000,000
or more, in the case of a single Creditor’s Process; or


 


(2)                                 US$100,000,000
or more in the aggregate, in the case of more than one Creditor’s Process.


 


19.7                          Litigation;
judgments


 


(a)                                 Any litigation,
arbitration, examinership or administrative proceedings of or before any court,
arbitral body or agency which, if adversely determined (and there is a
reasonable likelihood of this), might be expected to result in a judgment against
it for a monetary sum in excess of £1,000,000 is commenced against the
Borrower.


 


(b)                                One or more
judgments or decrees shall:


 


(i)                                     be entered
against any member of the Group;


 


(ii)                                  not have been
vacated, discharged, satisfied, stayed or bonded pending appeal within 60 days
from that entry; and


 


(iii)                               involve a
liability (not paid or fully covered by insurance) of either:


 


 


(1)                                 US$50,000,000
or more, in the case of a single judgment or decree; or


 


(2)                                 US$100,000,000
or more in the aggregate, in the case of more than one judgment or decree.


 


 


 


 


62

















 


 


19.8                          Ownership
of the Borrower


 


Except
with the consent of the Agent, the entire issued capital of the Borrower ceases
to be directly or indirectly owned by Capmark Bank Europe p.l.c. or its holding
companies.


 


19.9                          Unlawfulness


 


It
is or becomes or it is reasonably likely for it to become unlawful for any
Party (other than a Finance Party) to perform any of its obligations under the
Finance Documents or for such performance to be legally ineffective.


 


19.10                    Repudiation


 


Any
Party (other than a Finance Party) repudiates or is reasonably likely to
repudiate a Finance Document or otherwise render it legally ineffective.


 


19.11                    Guarantee


 


The Guarantee is or becomes or is reasonably
likely to become unenforceable or the Guarantor claims the Guarantee is
unenforceable.


 


19.12                    Security


 


Any
Security Document is not, is reasonably likely not or is alleged by the
Borrower not to be binding on or enforceable against the Borrower or effective
to create the Security intended to be created by it with the ranking and
priority it is expressed to have.


 


19.13                    Servicing
Agreement termination and other Servicer events


 


(a)                                 The Servicing
Agreement is terminated for whatever reason and is not replaced by an
alternative arrangement reasonably acceptable to the Agent and the Security
Trustee, within such reasonable time period as may be specified by the Agent.


 


(b)                                A Servicer
Event of Default (as defined in the Servicing Agreement) or a Loss of Servicer
Rating occurs and the Servicing Agreement is not replaced as referred to in
clause 19.13(a).  For this purpose, a “Loss of Servicer Rating” means the Servicer’s rating from
Fitch Ratings falling to CPS3uk or below.


 


19.14                    Acceleration


 


On
and at any time after the occurrence of an Event of Default, the Agent may, and
shall if so directed by the Majority Lenders, by written notice to the Borrower
(copied to the Security Trustee):


 


(a)                                 cancel the
Total Commitments whereupon they shall immediately be cancelled;


 


(b)                                declare that
all or part of the Loans, together with accrued interest, and all other amounts
accrued or outstanding under the Finance Documents be immediately due and
payable, whereupon they shall become immediately due and payable; and/or


 


(c)                                 declare that
all or part of the Loans be payable on demand, whereupon they shall immediately
become payable on demand by the Agent on the instructions of the Majority
Lenders.


 


 


 


63

















 


 


SECTION 8

CHANGES TO PARTIES


 


20.                                CHANGES TO THE LENDERS


 


20.1                          Assignments
and transfers by the Lenders


 


Subject
to this clause 20, a Lender (the “Existing Lender”)
may:


 


(a)                                 assign any of
its rights; or


 


(b)                                transfer by
novation any of its rights and obligations,


 


to
another bank or financial institution or to a trust, fund or other entity which
is regularly engaged in or established for the purpose of making, purchasing or
investing in loans, securities or other financial assets (the “New Lender”).


 


20.2                          Conditions
of assignment or transfer


 


(a)                                 The consent of
the Borrower is not required for an assignment or transfer by an Existing
Lender to one of its Affiliates.


 


(b)                                During the
continuance of an Event of Default, the consent of the Borrower is not required
for an assignment or transfer by an Existing Lender to any entity.


 


(c)                                 The consent of
the Borrower is not required for an assignment or transfer to a person which is
from time to time on a list of approved transferees agreed between the Borrower
and the Agent.


 


(d)                                A transfer will
only be effective on receipt by the Agent of written confirmation from the New
Lender (in form and substance satisfactory to the Agent) that the New Lender
will assume the same obligations to the other Finance Parties as it would have been
under if it was an Original Lender.


 


(e)                                 A transfer will
only be effective if the procedure set out in clause 20.5 is complied with.


 


(f)                                   If:


 


(i)                                     the Lender
assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office; and


 


(ii)                                  as a result of
circumstances existing at the date the assignment, transfer or change occurs,
the Borrower would be obliged to make a payment to the New Lender or Lender
acting through its new Facility Office under clause 11 (Tax gross-up
and indemnities) or clause 12 (Increased costs)
or otherwise under the Finance Documents,


 


then
the New Lender or Lender acting through its new Facility Office is only
entitled to receive payment under those clauses to the same extent as the Existing
Lender or Lender acting through its previous Facility Office would have been if
the assignment, transfer or change had not occurred.


 


 


64

















 


 


20.3                          Assignment
or transfer fee


 


The
New Lender shall, on the date upon which an assignment or transfer takes
effect, pay to the Agent (for its own account) a fee of £2,500.


 


20.4                          Limitation
of responsibility of Existing Lenders


 


(a)                                 Unless
expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:


 


(i)                                     the legality,
validity, effectiveness, adequacy or enforceability of the Finance Documents or
any other documents;


 


(ii)                                  the financial
condition of the Borrower or the Guarantor;


 


(iii)                               the performance
and observance by the Borrower or the Guarantor of its obligations under the
Finance Documents or any other documents; or


 


(iv)                              the accuracy of
any statements (whether written or oral) made in or in connection with any
Finance Document or any other document,


 


and
any representations or warranties implied by law are excluded.


 


(b)                                Each New Lender
confirms to the Existing Lender and the other Finance Parties that it:


 


(i)                                     has made (and
shall continue to make) its own independent investigation and assessment of the
financial condition and affairs of the Borrower or the Guarantor and its
related entities in connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by the Existing Lender
in connection with any Finance Document; and


 


(ii)                                  will continue
to make its own independent appraisal of the creditworthiness of the Borrower
or the Guarantor and its related entities whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in force.


 


(c)                                 Nothing in any
Finance Document obliges an Existing Lender to:


 


(i)                                     accept a
re-transfer from a New Lender of any of the rights and obligations assigned or
transferred under this clause 20; or


 


(ii)                                  support any
losses directly or indirectly incurred by the New Lender by reason of the
non-performance by the Borrower or the Guarantor of its obligations under the
Finance Documents or otherwise.


 


20.5                          Procedure
for transfer


 


(a)                                 Subject to the
conditions set out in clause 20.2, a transfer is effected in accordance with
clause 20.5(b) when the Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the New Lender.
The Agent shall, subject to paragraph (b) below) as soon as reasonably
practicable after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with the terms of this Agreement and delivered
in accordance with the terms of this Agreement, execute that Transfer
Certificate and shall deliver a copy of the Transfer Certificate so executed to
the Security Trustee and the Borrower.


 


 


 


65

















 


(b)                                The Agent shall
only be obliged to execute a Transfer Certificate delivered to it by the
Existing Lender and the New Lender once it is satisfied that it has complied
with all necessary “know your customer” or other similar checks under all
applicable laws and regulations in relation to the transfer to that New Lender.


 


(c)                                 On the Transfer
Date:


 


(i)                                     to the extent
that in the Transfer Certificate the Existing Lender seeks to transfer by
novation its rights and obligations under the Finance Documents, each of the
Borrower, the Guarantor and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another shall be cancelled (being the “Discharged Rights and Obligations”);


 


(ii)                                  each of the
Borrower, the Guarantor and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as the Borrower and the New
Lender have assumed and/or acquired the same in place of the Borrower and the
Existing Lender;


 


(iii)                               the Agent, the
Security Trustee, the New Lender and other Lenders shall acquire the same
rights and assume the same obligations between themselves as they would have
acquired and assumed had the New Lender been an Original Lender with the rights
and/or obligations acquired or assumed by it as a result of the transfer and to
that extent the Agent, the Security Trustee and the Existing Lender shall each
be released from further obligations to each other under this Agreement; and


 


(iv)                              the New Lender
shall become a Party as a “Lender”.


 


20.6                          Sub-participations


 


Any
Lender may enter into sub-participation arrangements with any person on the
list of approved transferees referred to in clause 20.2(c) or (subject to
no disclosure being made to the sub-participant regarding, or which would allow
it to calculate, the Margin or other pricing for the Facility) any other person
without the consent of the Borrower.


 


20.7                          Disclosure
of information


 


Any
Lender may disclose to any of its Affiliates and any other person:


 


(a)                                 to (or through)
whom that Lender assigns or transfers (or may potentially assign or transfer)
all or any of its rights and obligations under this Agreement;


 


(b)                                with (or
through) whom the Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which payments
are to be made by reference to, this Agreement or the Borrower or the
Guarantor;


 


(c)                                 being a
professional adviser of the Lender;


 


(d)                                where required
to be disclosed by any applicable law or regulation; or


 


(e)                                 with the
Borrower’s prior written consent


 


 


 


66

















 


 


any
information about the Borrower and the Finance Documents as that Lender shall
consider appropriate if, in relation to clause 20.7(a) to (b), the person
to whom the information is to be given has entered into a confidentiality
undertaking in a form acceptable to the Borrower.  This clause supersedes any previous agreement
relating to the confidentiality of this information.


 


21.                                NO CHANGES TO THE BORROWER


 


The
Borrower may not without the Agent’s prior written consent assign any of its
rights or transfer any of its rights or obligations under the Finance
Documents, except as provided under them.


 


22.                                ROLE OF THE AGENT


 


22.1                          Appointment
of the Agent


 


(a)                                 Each of the
Lenders appoints the Agent to act as its agent under and in connection with the
Finance Documents.


 


(b)                                Each Lender
authorises each of the Agent and the Security Trustee to exercise the rights,
powers, authorities and discretions specifically given to it under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.


 


22.2                          Duties
of the Agent


 


(a)                                 The Agent shall
promptly forward to a Party the original or a copy of any document which is
delivered to the Agent for that Party by any other Party.


 


(b)                                Except where a
Finance Document specifically provides otherwise, the Agent is not obliged to
review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.


 


(c)                                 If the Agent
receives notice from a Party referring to this Agreement, describing a Default
and stating that the circumstance described is a Default, it shall promptly
notify the Finance Parties.


 


(d)                                If the Agent is
aware of the non-payment of any principal, interest, commitment fee or other
fee payable to a Finance Party (other than the Agent) under this Agreement it
shall promptly notify the other Finance Parties.


 


(e)                                 The Agent shall
promptly send to the Security Trustee such certification as the Security
Trustee may require pursuant to the Debenture.


 


(f)                                   The duties of
the Agent under the Finance Documents are solely mechanical and administrative
in nature.


 


22.3                          No
fiduciary duties


 


(a)                                 Nothing in this
Agreement constitutes the Agent as a trustee or fiduciary of any other person.


 


(b)                                The Agent shall
not be bound to account to any Lender for any sum or the profit element of any
sum received by it for its own account.


 


 


 


 


 


67

















 


 


22.4                           Business
with the Borrower


 


The
Agent may accept deposits from, lend money to and generally engage in any kind
of banking or other business with the Borrower.


 


22.5                          Rights
and discretions of the Agent


 


(a)                                 The Agent may
rely on:


 


(i)                                     any
representation, notice or document believed by it to be genuine, correct and
appropriately authorised; and


 


(ii)                                  any statement
made by a director, authorised signatory or employee of any person regarding
any matters which may be assumed to be within his knowledge or within his power
to verify.


 


(b)                                The Agent may
assume, unless it has received notice to the contrary in its capacity as agent
for the Lenders that:


 


(i)                                     no Default has
occurred (unless it has actual knowledge of a Default arising under clause 19.1
(Non-payment)); and


 


(ii)                                  any right,
power, authority or discretion vested in any Party or the Majority Lenders has
not been exercised.


 


(c)                                 The Agent may
engage, pay for and rely on the advice or Servicer of any lawyers, accountants,
surveyors or other experts.


 


(d)                                The Agent may
act in relation to the Finance Documents through its personnel and agents.


 


(e)                                 The Agent may
disclose to any other Party any information it believes it has received as
agent under this Agreement.


 


(f)                                   Notwithstanding
any other provision of any Finance Document to the contrary, the Agent is not
obliged to do or omit to do anything if it would or might in its reasonable
opinion constitute a breach of any law or a breach of a fiduciary duty or duty
of confidentiality.


 


22.6                          Majority
Lenders’ instructions


 


(a)                                 Unless a
contrary indication appears in a Finance Document, the Agent shall (i) exercise
any right, power, authority or discretion vested in it as Agent in accordance
with any instructions given to it by the Majority Lenders (or, if so instructed
by the Majority Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance with an
instruction of the Majority Lenders.


 


(b)                                Unless a
contrary indication appears in a Finance Document, any instructions given
pursuant to a Finance Document by the Majority Lenders will be binding on all
the Finance Parties.


 


(c)                                 The Agent may
refrain from acting in accordance with the instructions of the Majority Lenders
(or, if appropriate, the Lenders) until it has received such security as it may
require for any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions.


 


 


 


68

















 


 


(d)                                In the absence
of instructions from the Majority Lenders (or, if appropriate, the Lenders),
the Agent may act (or refrain from taking action) as it considers to be in the
best interest of the Lenders.


 


(e)                                 The Agent is
not authorised to act on behalf of a Lender (without first obtaining that
Lender’s consent) in any legal or arbitration proceedings relating to any
Finance Document.


 


22.7                          Responsibility
for documentation


 


The
Agent is not:


 


(a)                                 responsible for
the adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the Agent, the Borrower, the Guarantor or any other person
given in or in connection with any Finance Document; or


 


(b)                                responsible for
the legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Finance Document.


 


22.8                          Exclusion
of liability


 


(a)                                 Without
limiting clause 22.8(b), neither the Agent nor the Security Trustee will be
liable for any action taken by it under or in connection with any Finance
Document, unless directly caused by its negligence or wilful default.


 


(b)                                No Party (other
than the Agent or the Security Trustee) may take any proceedings against any
officer, employee or agent of the Agent or the Security Trustee in respect of
any claim it might have against the Agent or the Security Trustee or in respect
of any act or omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or agent of the
Agent or the Security Trustee may rely on this clause in accordance with, and
within the meaning of, the provisions of the Contracts (Rights of Third
Parties) Act 1999.


 


(c)                                 The Agent will
not be liable for any delay (or any related consequences) in crediting an
account with an amount required under the Finance Documents to be paid by it if
it has taken all necessary steps as soon as reasonably practicable to comply
with the regulations or operating procedures of any recognised clearing or
settlement system used by it for that purpose.


 


(d)                                Nothing in this
Agreement shall oblige the Agent to carry out “know your customer” or other
checks in relation to any person on behalf of any Lender and each Lender
confirms to the Agent that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in relation to
such checks made by the Agent.


 


22.9                          Lenders’
indemnity to the Agent


 


Each
Lender shall (in proportion to its share of the Total Commitments or, if the
Total Commitments are then zero, to its share of the Total Commitments
immediately prior to their reduction to zero) indemnify the Agent, within three
Business Days of demand, against any cost, claim, loss, demand or liability
incurred by the Agent (otherwise than by reason of its gross negligence or
wilful misconduct) in acting as Agent under the Finance


 


 


 


69

















 


 


Documents
(unless it has been reimbursed by the Borrower pursuant to a Finance Document).


 


22.10                    Resignation
of the Agent


 


(a)                                 The Agent may
resign and appoint one of its Affiliates as successor by giving notice to the
other Finance Parties and the Borrower.


 


(b)                                Alternatively
the Agent may resign by giving notice to the other Finance Parties and the
Borrower, in which case the Majority Lenders (after consultation with the
Borrower and the Security Trustee) may appoint a successor Agent.


 


(c)                                 If the Majority
Lenders have not appointed a successor Agent in accordance with clause 22.10(b) within
30 days after notice of resignation was given, the Agent (after consultation
with the Borrower) may appoint a successor Agent.


 


(d)                                The retiring Agent
shall, at its own cost, make available to its successor such documents and
records and provide such assistance as its successor may reasonably request for
the purposes of performing its functions as Agent under the Finance Documents.


 


(e)                                 The resignation
notice of the Agent shall only take effect upon the appointment of a successor.


 


(f)                                   Upon the
appointment of a successor, the retiring Agent shall be discharged from any
further obligation in respect of the Finance Documents but shall remain
entitled to the benefit of this clause 22. Its successor and each of the other
Parties shall have the same rights and obligations amongst themselves as they
would have had if such successor had been an original Party.


 


(g)                                After
consultation with the Borrower and the Security Trustee, the Majority Lenders
may, by notice to the Agent, require it to resign in accordance with clause
22.10(b). In this event, the Agent shall resign in accordance with clause
22.10(b).


 


22.11                    Confidentiality


 


(a)                                 The Agent (in
acting as agent for the Lenders) shall be regarded as acting through its agency
division which shall be treated as a separate entity from any other of its
divisions or departments.


 


(b)                                If information
is received by another division or department of the Agent, it may be treated
as confidential to that division or department and the Agent shall not be
deemed to have notice of it.


 


22.12                    Relationship
with the Lenders


 


(a)                                 The Agent may
treat each Lender as a Lender, entitled to payments under this Agreement and
acting through its Facility Office unless it has received not less than five
Business Days prior notice from that Lender to the contrary in accordance with
the terms of this Agreement.


 


(b)                                 Each Lender
shall supply the Agent with any information required by the Agent in order to
calculate the Mandatory Cost in accordance with schedule 4 (Mandatory Cost formulae).


 


 


 


70














 


22.13                Credit appraisal by the Lenders


 


Without affecting the responsibility of
the Borrower for information supplied by it or on its behalf in connection with
any Finance Document, each Lender confirms to the Agent that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with
any Finance Document including:


 


(a)                                the financial
condition, status and nature of the Borrower and the Guarantor;


 


(b)                                the legality,
validity, effectiveness, adequacy or enforceability of any Finance Document and
any other agreement, Security, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance Document;


 


(c)                                 whether that Lender
has recourse, and the nature and extent of that recourse, against any Party or
any of its respective assets under or in connection with any Finance Document,
the transactions contemplated by the Finance Documents or any other agreement,
Security, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document; and


 


(d)                                the adequacy, accuracy
and/or completeness of any information provided by the Agent, any Party or by
any other person under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other agreement,
Security, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document.


 


22.14                Deduction from amounts payable by the
Agent


 


If any Party owes an amount to the Agent
under the Finance Documents the Agent may, after giving notice to that Party,
deduct an amount not exceeding that amount from any payment to that Party which
the Agent would otherwise be obliged to make under the Finance Documents and
apply the amount deducted in or towards satisfaction of the amount owed. For
the purposes of the Finance Documents that Party shall be regarded as having
received any amount so deducted.


 


22.15                Security Trustee


 


Each Lender confirms that it has been
supplied with a copy of the Debenture and the German Security Documents and
agrees (in each case in its capacity as a Secured Party) to be bound by the
provisions of it (including, those in favour of the Security Trustee), and
fulfil and discharge all obligations of and liabilities of a Secured Party
under the Debenture and the German Security Documents as if they themselves
were a party to the Debenture and the German Security Documents.


 


23.                              CONDUCT OF
BUSINESS BY THE FINANCE PARTIES


 


No provision of this Agreement will:


 


(a)                                interfere with the
right of any Finance Party to arrange its affairs (tax or otherwise) in
whatever manner it thinks fit;


 


(b)                                oblige any Finance
Party to investigate or claim any credit, relief, remission or repayment
available to it or the extent, order and manner of any claim; or


 


71

















 


(c)                                 oblige any Finance
Party to disclose any information relating to its affairs (tax or otherwise) or
any computations in respect of Tax.


 


24.                              SHARING
AMONG THE FINANCE PARTIES


 


24.1                       Payments to Finance Parties


 


If a Finance Party other than the
Security Trustee (a “Recovering Finance Party”)
receives or recovers any amount from the Borrower and the Guarantor other than
in accordance with clause 25 (Payment mechanics)
and applies that amount to a payment due under the Finance Documents then:


 


(a)                                the Recovering Finance
Party shall, within three Business Days, notify details of the receipt or
recovery to the Agent;


 


(b)                                the Agent shall
determine whether the receipt or recovery is in excess of the amount the
Recovering Finance Party would have been paid had the receipt or recovery been
received or made by the Agent and distributed in accordance with clause 25 (Payment mechanics), without taking account of any Tax which
would be imposed on the Agent in relation to the receipt, recovery or
distribution; and


 


(c)                                 the Recovering Finance
Party shall, within three Business Days of demand by the Agent, pay to the
Agent an amount (the “Sharing Payment”)
equal to such receipt or recovery less any amount which the Agent determines
may be retained by the Recovering Finance Party as its share of any payment to
be made, in accordance with clause 25.5 (Partial payments).


 


24.2                       Redistribution of payments


 


The Agent shall treat the Sharing Payment
as if it had been paid by, as relevant, the Borrower or the Guarantor and
distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with clause 25.5 (Partial payments).


 


24.3                       Recovering Finance Party’s rights


 


(a)                                On a distribution by
the Agent under clause 24.2, the Recovering Finance Party will be subrogated to
the rights of the Finance Parties which have shared in the redistribution.


 


(b)                                If and to the extent
that the Recovering Finance Party is not able to rely on its rights under
clause 24.3(a), as relevant, the Borrower or the Guarantor shall be liable to
the Recovering Finance Party for a debt equal to the Sharing Payment which is
immediately due and payable.


 


24.4                       Reversal of redistribution


 


If any part of the Sharing Payment
received or recovered by a Recovering Finance Party becomes repayable and is
repaid by that Recovering Finance Party, then:


 


(a)                                each Finance Party
which has received a share of the relevant Sharing Payment pursuant to clause
24.2 shall, upon request of the Agent, pay to the Agent for account of that
Recovering Finance Party an amount equal to the appropriate part of its share
of the Sharing Payment (together with an amount as is necessary to reimburse
that Recovering Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay); and


 


72

















 


(b)                                that Recovering
Finance Party’s rights of subrogation in respect of any reimbursement shall be
cancelled and, as relevant the Borrower or the Guarantor will be liable to the
reimbursing Lender for the amount so reimbursed.


 


24.5                       Exceptions


 


(a)                                This clause 24 shall
not apply to the extent that the Recovering Finance Party would not, after
making any payment pursuant to this clause, have a valid and enforceable claim
against, as relevant, the Borrower or the Guarantor.


 


(b)                                A Recovering Finance
Party is not obliged to share with any other Finance Party any amount which the
Recovering Finance Party has received or recovered as a result of taking legal
or arbitration proceedings, if:


 


(i)                                     it notified that other
Finance Party of the legal or arbitration proceedings; and


 


(ii)                                  that other Finance
Party had an opportunity to participate in those legal or arbitration
proceedings but did not do so as soon as reasonably practicable after having
received notice and did not take separate legal or arbitration proceedings.


 


73

















 


SECTION 9

ADMINISTRATION


 


25.                              PAYMENT
MECHANICS


 


25.1                       Payments to the Agent


 


(a)                                Subject to clause
25.10, on each date on which the Borrower or a Lender is required to make a
payment under a Finance Document, the Borrower or, as the case may be, the
Lender shall make the same available to the Agent (unless instructed otherwise
by the Agent or a contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the Agent as being
customary at the time for settlement of transactions in the relevant currency
in the place of payment.


 


(b)                                Payment shall be made
to such account in the principal financial centre of the country of the
currency of payment (or, in relation to euro, in the principal financial centre
in a Participating Member State or London) with such bank as the Agent
specifies.


 


25.2                       Distributions by the Agent


 


Each payment received by the Agent under
the Finance Documents for another Party shall, subject to clauses 25.3, 25.4
and 25.10, be made available by the Agent as soon as practicable after receipt
to the Party entitled to receive payment in accordance with this Agreement (in
the case of a Lender, for the account of its Facility Office), to such account
as that Party may notify to the Agent by not less than five Business Days’
notice with a bank in the principal financial centre of the country of that
currency (or, in relation to euro, in the principal financial centre of a
Participating Member State or London).


 


25.3                       Distributions to the Borrower


 


The Agent may (with the consent of the
Borrower or in accordance with clause 26 (Set-off)) apply
any amount received by it for the Borrower in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from the Borrower
under the Finance Documents or in or towards purchase of any amount of any
currency to be so applied.


 


25.4                       Clawback


 


(a)                                Where a sum is to be
paid to the Agent under the Finance Documents for another Party, the Agent is
not obliged to pay that sum to that other Party (or to enter into or perform
any related exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.


 


(b)                                If the Agent pays an
amount to another Party and it proves to be the case that it had not actually
received that amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid shall on demand refund the same to the
Agent together with interest on that amount from the date of payment to the
date of receipt by the Agent calculated by it to reflect its cost of funds.


 


25.5                       Partial payments


 


If the Agent receives prior to the date
on which the Agent serves an Enforcement Notice a payment that is insufficient
to discharge all the amounts then due and payable by the


 


74

















 


Borrower under the Finance Documents, the
Agent shall apply that payment in accordance with the provisions of clause 8 (Receipts and payments) of the Debenture.


 


25.6                       No set-off


 


All payments to be made by the Borrower
under this Agreement shall be calculated and be made without (and free and
clear of any deduction for) set-off or counterclaim.


 


25.7                       Business Days


 


(a)                                Any payment which is
due to be made on a day that is not a Business Day shall be made on the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).


 


(b)                                During any extension
of the due date for payment of any principal or Unpaid Sum under this Agreement
interest is payable on the principal or Unpaid Sum at the rate payable on the
original due date.


 


25.8                       Currency of account


 


(a)                                Subject to clause 25.8(b) to
(e), Sterling is the currency of account and payment for any sum due from the
Borrower under this Agreement.


 


(b)                                A repayment of a Loan
or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency
in which that Loan or Unpaid Sum is denominated on its due date.


 


(c)                                 Each payment of
interest shall be made in the currency in which the sum in respect of which the
interest is payable was denominated when that interest accrued.


 


(d)                                Each payment in
respect of costs, expenses or Taxes shall be made in the currency in which the
costs, expenses or Taxes are incurred.


 


(e)                                 Any amount expressed
to be payable in a currency other than Sterling shall be paid in that other
currency.


 


25.9                       Change of currency


 


(a)                                Unless otherwise
prohibited by law, if more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency of that
country, then:


 


(i)                                     any reference in the
Finance Documents to, and any obligations arising under the Finance Documents
in, the currency of that country shall be translated into, or paid in, the
currency or currency unit of that country designated by the Agent (after
consultation with the Borrower) or, in the case of an amount due to the
Security Trustee, by the Security Trustee; and


 


(ii)                                  any translation from
one currency or currency unit to another shall be at the official rate of
exchange recognised by the central bank for the conversion of that currency or
currency unit into the other, rounded up or down by the Agent.


 


75

















 


(b)                                If a change in any
currency of a country occurs, this Agreement will, to the extent the Agent
specifies to be necessary, be amended to comply with any generally accepted
conventions and market practice in the relevant interbank market and otherwise
to reflect the change in currency.


 


25.10                Payments to the Security Trustee


 


Notwithstanding any other provision of
any Finance Document, at any time after the Agent serves an Enforcement Notice:


 


(a)                                the Borrower shall pay
all sums due under any Finance Document; and


 


(b)                                the Agent and each
Lender shall pay all sums received or recovered from the Borrower under any
Finance Document,


 


in each case to the Security Trustee or
as the Security Trustee may direct for application in accordance with the terms
of the Security Documents.


 


26.                              SET-OFF


 


A Finance Party may set off or otherwise
reduce any matured obligation due from the Borrower under the Finance Documents
(to the extent beneficially owned by that Finance Party) against any matured
obligation owed by that Finance Party to the Borrower, regardless of the place
of payment, booking branch or currency of either obligation. If the obligations
are in different currencies, the Finance Party may convert either obligation at
a market rate of exchange in its usual course of business for the purpose of
the set-off.


 


27.                              COMMUNICATIONS


 


27.1                       Communications in writing


 


Any communication to be made under or in
connection with this Agreement shall be made in writing and, unless otherwise
stated, may be made by fax, letter or telex.


 


27.2                       Addresses


 


The address and fax number (and the
department or officer, if any, for whose attention the communication is to be
made) of each Party for any communication or document to be made or delivered
under or in connection with is that identified with its name below or any
substitute address or fax number or department or officer as the Party may
notify to the Agent (or the Agent may notify to the other Parties, if a change
is made by the Agent) by not less than five Business Days’ notice.


 


27.3                       Delivery


 


(a)                                Any communication or
document made or delivered by one person to another under or in connection with
this Agreement will only be effective:


 


(i)                                     if by way of fax, when
received in legible form; or


 


(ii)                                  if by way of letter,
when it has been left at the relevant address,


 


and, if a particular department or
officer is specified as part of its address details provided under clause 27.2,
if addressed to that department or officer.


 


76

















 


(b)                                Any communication or
document to be made or delivered to the Agent or the Security Trustee will be
effective only when actually received by it and then only if it is expressly
marked for the attention of the department or officer identified with its
signature below (or any substitute department or officer as it shall specify
for this purpose).


 


(c)                                 All notices from or to
the Borrower shall be sent through the Agent.


 


(d)                                Any communication or
document made or delivered to the Borrower must also be copied and delivered to
the Servicer addressed to Clonmore, Mullingar, County West Meath, Ireland,
facsimile number +353 44 32308, Attention: Robbie Hughes/General Counsel.


 


27.4                       Notification of address and fax number


 


Promptly upon receipt of notification of
an address and fax number or change of address fax number pursuant to clause 27
or changing its own address or fax number, the Agent shall notify the other
Parties.


 


27.5                       Electronic communication


 


(a)                                Any communication to
be made between the Agent and a Lender under or in connection with the Finance
Documents may be made by electronic mail or other electronic means, if the
Agent and the relevant Lender:


 


(i)                                     agree that, unless and
until notified to the contrary, this is to be an accepted form of
communication;


 


(ii)                                  notify each other in
writing of their electronic mail address and/or any other information required
to enable the sending and receipt of information by that means; and


 


(iii)                               notify each other of
any change to their address or any other such information supplied by them.


 


(b)                                Any electronic
communication made between the Agent and a Lender will be effective only when
actually received in readable form and in the case of any electronic
communication made by a Lender to the Agent only if it is addressed in such a
manner as the Agent shall specify for this purpose.


 


27.6                       English language


 


(a)                                Any notice given under
or in connection with this Agreement must be in English.


 


(b)                                All other documents
provided under or in connection with this Agreement must be:


 


(i)                                     in English; or


 


(ii)                                  if not in English, and
if so required by the Agent, accompanied by a certified English translation
and, in this case, the English translation will prevail unless the document is
a constitutional, statutory or other official document.


 


77

















 


28.                              CALCULATIONS
AND CERTIFICATES


 


28.1                       Accounts


 


In any litigation or arbitration
proceedings arising out of or in connection with this Agreement, the entries
made in the accounts maintained by a Finance Party are prima facie evidence of
the matters to which they relate.


 


28.2                       Certificates and determinations


 


Any certification or determination by a
Finance Party of a rate or amount under this Agreement is, in the absence of
manifest error, prima facie evidence of the matters to which it relates.


 


28.3                       Day count convention


 


Any interest, commission or fee accruing
under this Agreement will accrue from day to day and is calculated on the basis
of the actual number of days elapsed and a year of 365 (or, in relation to any
interest, commission or fee denominated in Euro, 360) days.


 


29.                              PARTIAL
INVALIDITY


 


If, at any time, any provision of this
Agreement 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.


 


30.                              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
Agreement 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 Agreement
are cumulative and not exclusive of any rights or remedies provided by law.


 


31.                              AMENDMENTS
AND WAIVERS


 


31.1                       Required consents


 


(a)                                Subject to clause 31.2
any term of this Agreement may be amended or waived only with the consent (that
consent not to be unreasonably withheld) of the Majority Lenders and the
Borrower and any such amendment or waiver will be binding on all Parties.


 


(b)                                The Agent may effect,
on behalf of any Finance Party (other than the Security Trustee), any amendment
or waiver permitted by this clause.  The
Agent shall promptly give notice of any such amendment or waiver to the
Security Trustee.


 


(c)                                 Notwithstanding any
provisions of this Agreement, the parties to this Agreement do not require the
consent of any officer, employee or agent of the Agent or the Security Trustee
in such individual’s personal capacity to rescind or vary this Agreement at any
time.


 


78

















 


31.2                        Exceptions


 


(a)                                An amendment or waiver
that has the effect of changing or which relate to:


 


(i)                                     the definition of “Majority Lenders” in clause 1.1 (Definitions);


 


(ii)                                  an extension to the
date of payment of an amount under the Finance Documents;


 


(iii)                               a reduction in the
Margin or a reduction in the amount of any payment or principal, interest, fees
or commission payable;


 


(iv)                              an increase in or an
extension of any Commitment;


 


(v)                                 any provision which
expressly requires the consent of all the Lenders;


 


(vi)                              clauses 2.3 (Finance Parties’ rights and obligations), 20 (Changes to the Lenders) or 24 (Sharing
among the Finance Parties) or this clause 31; or


 


(vii)                           the release of any
Security created pursuant to any Security Document (except as provided in any
Security Document),


 


shall not be made without the prior
consent of all the Lenders.


 


(b)                                An amendment or waiver
which relates to the rights or obligations of the Agent or the Security Trustee
may not be effected without the consent of the Agent or the Security Trustee.


 


32.                              COUNTERPARTS


 


This Agreement 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 Agreement.


 


79

















 


SECTION 10

GOVERNING LAW AND ENFORCEMENT


 


33.                              GOVERNING
LAW


 


This Agreement is governed by, and shall
be construed in accordance with, English law, provided that any terms of this
Agreement which are particular to the law of Scotland shall be construed in
accordance with Scots law.


 


34.                              ENFORCEMENT


 


34.1                       Jurisdiction of English courts


 


(a)                                The courts of England
have exclusive jurisdiction to settle any dispute arising out of or in
connection with this Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (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 34.1 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.


 


34.2                       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.


 


80














 


IN WITNESS the hands of parties or their duly
authorised agents the day and year first above written.


 


The Borrower


 


	
  SIGNED by

  	
  , a

  	
  )

  )

  	
   

  
	
  duly authorised
  person for and on behalf of

  CAPMARK AB NO. 2 LIMITED

  



 


	
  Address:

  	
  Commerzbank House,
  35-50 Guild Street,

  Dublin 1, Ireland

  
	
  Facsimile no:

  	
  +3531 672 0353

  
	
  Electronic
  mail address:

  	
   

  
	
  For the
  attention of:

  	
  General Counsel

  



 


The Original Lender


 


	
  SIGNED by 

  	
  and 

  	
  )

  
	
   

  	
  , duly authorised
  for 

  	
  )

  
	
  and on behalf of IXIS CORPORATE &

  	
  )

  
	
  INVESTMENT
  BANK, LONDON BRANCH

  	
   

  
					



 


	
  Address:

  	
  25 Dowgate Hill,
  London EC4R 2GN

  
	
  Facsimile no:

  	
  +33 158 55 1058

  
	
  Electronic
  mail address:

  	
  dlecloarec@ixis-cib.com

  
	
  For the
  attention of:

  	
  Middle Office
  Securitisation

  



 


The Guarantor


 


	
  SIGNED by

  	
  ,

  	
  )

  
	
  duly authorised for
  and on behalf of 

  	
  )

  
	
  CAPMARK
  FINANCIAL GROUP INC.

  	
  )

  
	
   

  	
  )

  



 


	
  Address:

  	
  200 Witmer Road,
  Horsham PA 19044 USA

  
	
  Facsimile no:

  	
  +1 215 328 0603

  
	
  Electronic
  mail address:

  	
  maria.corpora@capmark.com

  
	
  For the
  attention of:

  	
  Maria Corpora

  



 


The Agent


 


	
  SIGNED by 

  	
  ,

  	
  )

  
	
  and

  	
  ,duly

  	
  )

  
	
  authorised for and
  on behalf of IXIS 

  	
   

  
	
  CORPORATE &
  INVESTMENT BANK, 

  	
   

  
	
  LONDON BRANCH

  	
   

  
				



 


	
  Address:

  	
  25 Dowgate Hill,
  London EC4R 2GN

  
	
  Facsimile no:

  	
  +33 158 55 10 58

  
	
  Electronic
  mail address:

  	
  dlecloarec@ixis-cib.com

  
	
  For the
  attention of:

  	
  Middle Office
  Securitisation

  



 


81

















 


The Security Trustee


 


	
  SIGNED by

  	
  ,

  	
  )

  
	
  duly authorised for
  and on behalf of THE

  	
  )

  
	
  BANK OF NEW
  YORK

  	
  )

  



 


	
  Address:

  	
  One Canada Square,
  London E14 5AL

  
	
  Facsimile no:

  	
  +44 20 7964 6061

  
	
  Electronic
  mail address:

  	
  krussell@bankofny.com

  
	
  For the
  attention of:

  	
  Corporate
  Trust-Global Structured Finance

  



 


82

















 


SCHEDULE 1


 


THE ORIGINAL LENDER


 


	
  Name and details of Original
  Lender

  	
  Commitment

  £

  
	
   

  	
   

  
	
  IXIS Corporate & Investment
  Bank

  London Branch

  25 Dowgate Hill

  London EC4R 2YA

  	
  500,000,000

  



 


83

















 


SCHEDULE 2


 


CONDITIONS PRECEDENT


 


Part 1


Initial conditions precedent, which have been
satisfied


 


1.                                      Constitutional
documents, etc


 


(a)                                 A copy of the
constitutional documents of the Borrower, the Servicer and the Guarantor.


 


(b)                                A copy of a resolution
of the boards of directors of each of the Borrower, the Servicer and the
Guarantor, evidencing the authority of the person(s) who execute the Finance
Documents on its behalf.


 


(c)                                 A specimen of the
signature of each person referred to in Paragraph 1(b).


 


(d)                                A certificate of an
authorised signatory of each of the Borrower, the Servicer and the Guarantor
certifying that each copy document relating to it specified in this schedule 2,
part 1 is correct, complete and in full force and effect as at a date no
earlier than the date of this Agreement.


 


(e)                                 A solvency certificate
for each of the Borrower, the Servicer and the Guarantor signed by an officer
of each of the Borrower, the Servicer and the Guarantor effective as at the
date of first Utilisation of the Facility.


 


2.                                      Security


 


Each of the following documents in form
and substance satisfactory to it:


 


(a)                                 a copy of each
Security Document, duly executed by the parties to it and all relevant notices
and acknowledgments of the Security; and


 


(b)                                confirmation that the
Companies Form No. 395 and Form C1 required in relation to the
Finance Documents, duly completed, will be filed at Companies House and the Companies
Registration Office in Dublin promptly following execution of the relevant
Finance Documents.


 


3.                                      Legal opinions


 


(a)                                 A legal opinion from
the English legal counsel to the Borrower (Mayer, Brown, Rowe & Maw
LLP) substantially in the form approved by the Agent and the Security Trustee
prior to signing this Agreement.


 


(b)                                A legal opinion from
the Scottish legal counsel to the Borrower (Maclay, Murray & Spens),
substantially in the form approved by the Agent and the Security Trustee prior
to signing this Agreement.


 


(c)                                 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 this
Agreement.


 


(d)                                A legal opinion from
the New York legal counsel to the Guarantor (Mayer, Brown, Rowe & Maw
LLP), substantially in the form approved by the Agent and the


 


84

















 


Security Trustee prior to signing this
Agreement, relating to the enforceability of the Guarantee.


 


(e)                                 A legal opinion from
in-house legal counsel (as to Nevada law) to the Guarantor, substantially in
the form approved by the Agent and the Security Trustee prior to signing this
Agreement, relating to the power and capacity of the Guarantor to enter into
the Guarantee.


 


(f)                                   A legal opinion from
in-house legal counsel (as to New York law) to the Swap Counterparty,
substantially in the form approved by the Agent and the Security Trustee prior
to signing this Agreement, relating to the power and capacity of the Swap
Counterparty to enter into the Master Swap Agreement.


 


38.                                Other documents and evidence


 


(a)                                 Certified copies of
any standard form which the Borrower has of any type of document listed in
schedule 7 (Secured Property Loan Actual Documentation).


 


(b)                                Evidence of the
establishment of the Borrower Account and the CSA Account.


 


(c)                                 Details of the
shareholdings in the Borrower.


 


(d)                                Evidence that any
process agent referred to in clause 34.2 (Service of process)
has accepted its appointment.


 


(e)                                 A copy, certified to
be true, of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with the
entry into and performance of the transactions contemplated by any Finance
Document or for the validity and enforceability of any Finance Document.


 


(f)                                   Evidence that the
fees, costs and expenses then due from the Borrower pursuant to clause 15 (Costs, expenses and fees) have been paid or will be paid by
the first Utilisation Date.


 


(g)                                Any Know Your Customer
documents reasonably requested by any Finance Party in relation to this
Agreement.


 


(h)                                A structure chart
showing the relationship between the members of the Group.


 


85

















 


Part 2

Amended and restated conditions precedent, which have been satisfied


 


        Constitutional documents, etc


 


(a)                                  A copy of the constitutional documents of the
Borrower, the Servicer and the Guarantor.


 


(b)                                 A copy of a resolution of the boards of
directors of each of the Borrower, the Servicer and the Guarantor, evidencing
the authority of the person(s) who execute the Finance Documents on its
behalf.


 


(c)                                  A specimen of the signature of each person
referred to in Paragraph 1(b).


 


(d)                                 A certificate of an authorised signatory of each
of the Borrower, the Servicer and the Guarantor certifying that each copy
document relating to it specified in this schedule 2, part 2 is correct,
complete and in full force and effect as at a date no earlier than the
Effective Date.


 


(e)                                  A solvency certificate for each of the Borrower,
the Servicer and the Guarantor signed by an officer of each of the Borrower,
the Servicer and the Guarantor effective as at the Effective Date.


 


        Amended Finance Documents
and Security


 


Each
of the following documents in form and substance satisfactory to it:


 


(a)                                  a copy of each Finance Document referred to in
this Agreement as being entered into or amended on the date hereof, duly
executed by the parties thereto.


 


(b)                                 a copy of each Security Document, duly executed
by the parties to it and any relevant notices and acknowledgments of the
Security; and


 


(c)                                  confirmation that the Companies Forms No. 395
and Form C1 required in relation to the Finance Documents, duly completed,
will be filed at Companies House and the Companies Registration Office in
Dublin promptly following execution of the relevant Finance Documents.


 


        Legal opinions


 


(a)                                  A legal opinion from the English legal counsel
to the Borrower (Mayer, Brown, Rowe & Maw LLP) substantially in the
form approved by the Agent and the Security Trustee prior to signing this
Agreement.


 


(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 this Agreement.


 


(c)                                  A legal opinion from the German legal counsel to
the Borrower (Sibeth Partnerchaft Rechtsanwälte Steuerberater
Wirtschaftsprüfer) substantially in the form approved by the Agent and the
Security Trustee prior to signing this Agreement.


 


86

















 


(d)                                 A legal opinion from the New York legal counsel
to the Interim Funder (Mayer, Brown, Rowe & Maw LLP), substantially in
the form approved by the Agent and the Security Trustee prior to signing this
Agreement, relating to consolidation issues.


 


        Other documents and
evidence


 


(a)                                  Evidence of the establishment of the Borrower
Euro Account.


 


(b)                                 Evidence that any process agent referred to in
clause 11 (Service of process) has accepted its
appointment.


 


(c)                                  A copy, certified to be true, of any other
Authorisation or other document, opinion or assurance which the Agent considers
to be necessary or desirable in connection with the entry into and performance
of the transactions contemplated by any Finance Document or for the validity
and enforceability of any Finance Document.


 


(d)                                 Any Know Your Customer documents reasonably
requested by any Finance Party in relation to this Agreement.


 


87

















 


Part 3

Secured Property Loan conditions precedent


 


1.                                      The Secured Property
Loan Actual Documentation in respect of the proposed Secured Property Loan.


 


2.                                      Evidence that the
conditions precedent to the relevant Secured Property Loan as set out in the
Secured Property Loan Actual Documentation have been satisfied and (whether or
not it is a condition precedent) that the appropriate Valuation, addressed so
as to benefit the Finance Parties, has been provided.


 


3.                                      If applicable, written
confirmation, addressed to the Agent, from the Borrower’s lawyers that they
will hold the proceeds of the Loan advanced in respect of the relevant Secured
Property Loan(s), to the order of the Agent.


 


4.                                      Evidence that the loan
under the Relevant Subordinated Loan Agreement has been granted.


 


5.                                      The Servicing Confirmation
(as defined in the Servicing Agreement) in respect of the proposed Secured
Property Loan.


 


88