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EXHIBIT 10.1
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INDENTURE
among
EQI FINANCING PARTNERSHIP I, L.P.,
Issuer,
LASALLE NATIONAL BANK,
Indenture Trustee
and
ABN AMRO BANK N.V.,
Fiscal Agent
Dated as of February 6, 1997
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Relating to
EQI FINANCING PARTNERSHIP I, L.P.
COMMERCIAL MORTGAGE BONDS, SERIES 1997-1
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TABLE OF CONTENTS
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
GRANTING CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I.
DEFINITIONS
SECTION 1.01. General Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II.
THE BONDS
SECTION 2.01. Payments of Principal and Interest on the Bonds. . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.02. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.03. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.04. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.05. Mutilated, Destroyed, Lost or Stolen Bonds. . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.06. Payments on the Bonds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.07. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.08. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.09. Authentication and Delivery of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.10. Forms of Bonds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.11. Termination of Book-Entry System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.12. General Restrictions on Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.13. Transfers of Bonds from One Form to Another. . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.14. No Obligation to Monitor Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III.
COVENANTS
SECTION 3.01. Payment of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.03. Money for Bond Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 3.04. Protection of Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(i)
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ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE V.
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.04. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.05. Optional Preservation of Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.06. Indenture Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.07. Indenture Trustee May Enforce Claims without
Possession of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.08. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.09. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.10. Unconditional Rights of Bondholders to Receive
Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.11. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.12. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.13. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.14. Control by Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.15. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.16. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.17. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.18. Rights Upon a Nonrecoverable Advance Determination . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.19. Action on Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.20. No Recourse to Other Assets of the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.21. Franchise Agreements, Allocation Affidavits, Etc. . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI.
THE INDENTURE TRUSTEE
SECTION 6.01. Duties of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
(ii)
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SECTION 6.02. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 6.03. Rights of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.04. Not Responsible for Recitals or Issuance of Bonds . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.05. May Hold Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.07. Compensation, Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.08. Eligibility: Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.09. Indenture Trustee's Capital and Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.10. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.12. Merger or Consolidation of the Indenture Trustee and the Fiscal Agent . . . . . . . . . . . 42
SECTION 6.13. Co-Trustees and Separate Indenture Trustees . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.14. Servicing Agreement and Certain Documents . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.15 Review of Mortgage Files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE VII.
BONDHOLDERS' LISTS AND REPORTS
SECTION 7.01. Issuer to Furnish Indenture Trustee Names and
Addresses of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.02. Preservation of Information: Communications to
Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.03. Reports by Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7.04. Reports by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII.
ACCOUNTS, PAYMENTS OF INTEREST AND
PRINCIPAL, AND RELEASES
SECTION 8.01. Collection of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.02. Collateral Proceeds Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.03. General Provisions Regarding the Collateral
Proceeds Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 8.04. Central Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.05. Reports by Indenture Trustee to Bondholders;
Access to Certain Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.06. Release of Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.07. Amendment to Servicing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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SECTION 8.08. Appointment of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.09. Termination of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 8.10. Appointment of Custodians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 8.11. The Fiscal Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE IX.
SUPPLEMENTAL INDENTURES AND
MODIFICATIONS OF OTHER LOAN DOCUMENTS
SECTION 9.01. Supplemental Indentures without Consent of
Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.02. Supplemental Indentures with Consent of Bondholders . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.05. Reference in Bonds to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.06. Amendments to Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.07. Amendments to Governing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.02. Form of Documents Delivered to Indenture Trustee . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.03. Acts of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.04. Notices to Indenture Trustee and Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.05. Notices and Reports to Bondholders; Waiver of Notices . . . . . . . . . . . . . . . . . . . 60
SECTION 10.06. Rules by Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.07. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.08. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.09. Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.10. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.11. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.13. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 10.14. Issuer Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.15. Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.16 Xxxxxx Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10.17 Use of Schedule C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
(iv)
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SCHEDULE A Schedule of Mortgaged Properties and Initial Allocated
Loan Amounts
SCHEDULE B Amortization Schedule
SCHEDULE C Schedule of Surveys, Property Condition Reports and
Environmental Reports
EXHIBIT A Form of Class A Bond
EXHIBIT B Form of Class B Bond
EXHIBIT C Form of Class C Bond
EXHIBIT D Regulation S Exchange Certificate (Bond Owner)
EXHIBIT E Regulation S Exchange Certificate (Euroclear or Cedel)
EXHIBIT F Letter Agreement (to the Depository Trust Company)
EXHIBIT G Transferee Agreement
EXHIBIT H Transfer Certificate
EXHIBIT I Rule 144A Certificate
EXHIBIT J Forms of Franchisor Comfort Letters
EXHIBIT K Form of Allocation Affidavit
ANNEX I Glossary
(v)
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PARTIES
THIS INDENTURE, dated as of February 6, 1997 (as amended or
supplemented from time to time as permitted hereby, this "Indenture"), among
EQI FINANCING PARTNERSHIP I, L.P., a Tennessee limited partnership (together
with its permitted successors and assigns, the "Issuer"), LASALLE NATIONAL
BANK, a nationally chartered bank, as trustee (together with its permitted
successors in the trusts hereunder, the "Indenture Trustee"), and ABN AMRO BANK
N.V., a Netherlands banking corporation, as fiscal agent of the Indenture
Trustee (together with its permitted successors and assigns, the "Fiscal
Agent").
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this
Indenture to provide for its Commercial Mortgage Bonds, Series 1997-1, Class A,
Class B and Class C (the "Bonds"), issuable as provided in this Indenture. All
covenants and agreements made by the Issuer herein are for the benefit and
security of the Holders of the Bonds. The Issuer is entering into this
Indenture, and the Indenture Trustee is accepting the trusts created hereby,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged.
The Issuer is the owner of the parcels of real property listed on
Schedule A to this Indenture (the "Premises") and the Improvements and
Equipment and various rights related thereto (as more fully described in the
granting clauses of the Mortgages (as defined below), the "Mortgaged
Properties"). As of the date hereof, the Issuer has granted the Indenture
Trustee a mortgage, deed of trust, deed to secure debt or other security
instrument (each, a "Mortgage") on each of the Mortgaged Properties to secure
payment of the Bonds. This Indenture is intended to confirm the granting of
those Mortgages and, inter alia, to provide for the administration of the
Bonds.
All things necessary to make this Indenture a valid agreement of the
Issuer in accordance with its terms have been done.
GRANTING CLAUSE
The Issuer hereby confirms the Grants it gave in the Mortgages to the
Indenture Trustee, for the exclusive benefit of the Bondholders, of all of the
Issuer's right, title and interest in and to the Mortgaged Properties relating
to the Premises listed in Schedule A to this Indenture, including the related
Mortgage Files. The Issuer also hereby Grants to the Indenture Trustee, for
the exclusive benefit of the Bondholders, all of the Issuer's right, title and
interest in and to (a) all cash, instruments or other property held or required
to be deposited in the Loss Proceeds Account, the Central Account (including
the related Sub-Accounts) or the Collateral Proceeds Account, including any
income on funds deposited in, or investments made with funds deposited in, the
Loss Proceeds Account, the Central Account or the Collateral Proceeds Account,
(b) all Required Insurance Policies and (c) all proceeds of the conversion,
voluntary or involuntary, of
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any of the foregoing into cash or other liquid assets, including, without
limitation, all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds.
Such Grants are made, however, in trust to secure (i) the payment of
all amounts due on the Bonds in accordance with their terms, (ii) the payment
of all other sums payable under this Indenture and (iii) compliance with the
provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee acknowledges such Grant and the Grants given in
the Mortgages and confirmed herein, accepts the trusts hereunder in accordance
with the provisions of this Indenture and agrees to perform the duties herein
required to the end that the interests of the Bondholders may be adequately and
effectively protected.
ARTICLE I.
DEFINITIONS
SECTION 1.01. GENERAL DEFINITIONS
Except as otherwise specified or as the context may otherwise require,
capitalized terms used herein have the respective meanings set forth in the
Glossary attached hereto as Annex I for all purposes of this Indenture.
ARTICLE II.
THE BONDS
SECTION 2.01. PAYMENTS OF PRINCIPAL AND INTEREST ON THE BONDS.
(a) General Provisions with Respect to Principal and Interest
(i) The Bonds shall be designated generally as the
"Commercial Mortgage Bonds, Series 1997-1" of the Issuer.
(ii) The aggregate principal amount of Bonds that may be
authenticated and delivered under the Indenture is limited to
$88,000,000, except for the Bonds authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Bonds pursuant to Sections 2.04, 2.05 or 9.05 of this Indenture. The
Bonds shall consist of three Classes, having designations, initial
principal amounts, Class Interest Rates and Stated Maturities as
follows:
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Initial
Principal Class Interest
Designation Amount Rate Stated Maturity
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Series 1997-1, Class A $27,400,000 6.825% November 20, 2006
Series 1997-1, Class B $50,600,000 7.370% December 20, 2015
Series 1997-1, Class C $10,000,000 7.580% February 20, 2017
(iii) The Bonds shall be issued in the form specified in
Section 2.10.
(iv) Subject to this Section 2.01, Section 3.01 and
Section 5.10, the principal of each Class of Bonds shall be payable in
installments as described herein ending no later than the Stated
Maturity for such Class, unless the principal balance of the Bonds
becomes due and payable at an earlier date by declaration of
acceleration or otherwise.
(v) Notwithstanding any provision in this Indenture to
the contrary, unless expressly stated otherwise, any reference herein
to accrued and unpaid interest shall not include accrued Excess
Interest or interest on accrued Excess Interest.
(b) Scheduled Payments. Except as otherwise provided herein, the
aggregate amount of principal and interest on the Bonds due and payable on each
Payment Date shall be equal to the Scheduled Payment for such Payment Date.
All Scheduled Payments made with respect to the Bonds shall be applied on each
Payment Date in accordance with this Section 2.01 first, to the payment of
accrued and unpaid interest on the Class A Bonds on such Payment Date and then
to principal due on the Class A Bonds, second, to the payment of accrued and
unpaid interest on the Class B Bonds and then to principal due on the Class B
Bonds, and third, to the payment of accrued and unpaid interest on the Class C
Bonds and then to principal due on the Class C Bonds. The Scheduled Payments
reflected on the original Amortization Schedule shall be (i) reduced to reflect
a Prepayment in full of a Class of Bonds and (ii) adjusted following a partial
Prepayment of a Class of Bonds to reflect the reamortization of such Class of
Bonds based on the remaining term of its amortization schedule and its reduced
principal balance, calculated by the Servicer pursuant to the Servicing
Agreement in the same manner as the original Amortization Schedule.
(c) Interest Payments.
(i) With respect to each Payment Date or Special Payment
Date, interest on each Class of Bonds shall accrue at its respective
Class Interest Rate from and including the previous Payment Date (or
the Closing Date in the case of the first Payment Date) through and
including the Accounting Date for the Payment Date or Special Payment
Date on which such interest shall be payable, such interest to accrue
on the principal balance of such Class of Bonds as of such Accounting
Date (or on the prepaid principal
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to be paid on such Class of Bonds on the Special Payment Date).
Interest on the Bonds will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
(ii) If any Scheduled Payment is not paid in full by the
Issuer in immediately available funds within five days after the
related Payment Date, then, regardless of whether a P&I Advance is
made with respect to such Scheduled Payment, interest shall accrue at
the applicable Default Rate on such unpaid portion of the Scheduled
Payment due on the Class A, Class B or Class C Bonds, respectively,
during the period from and including such Payment Date through and
including the day preceding the date on which such amount is paid in
full by the Issuer. Holders of the Class A, Class B or Class C Bonds
are entitled to interest paid at the Default Rate only if the
Scheduled Payment due and payable on such Class was not paid or
advanced within five days after the related Payment Date. Interest
paid at the Default Rate may be deposited either in the Central
Account or the Collateral Proceeds Account and will be applied with
other amounts in such accounts in accordance with the priorities set
forth in the Servicing Agreement or this Indenture, respectively.
(iii) In addition to interest at the applicable Class
Interest Rate, in the event the Bonds have not been paid in full by
the Trigger Date, each Class of Bonds will bear Excess Interest from
and including such date on the principal balance of such Class of
Bonds. Such Excess Interest shall not be payable on a Class of Bonds
until the date on which all principal on all Classes of Bonds has been
paid in full. Accrued and unpaid Excess Interest on a Class of Bonds
shall bear interest at a rate per annum of 2% above the greater of (A)
the Class Interest Rate for such Class of Bonds and (B) the Treasury
Rate applicable to such Class of Bonds, and shall not be payable until
such time that Excess Interest is payable on the Bonds. Accrued and
unpaid Excess Interest and interest accrued thereon, when payable on
the Bonds, will be applied in sequential order to the Class A, Class B
and Class C Bonds until each Class has been paid such amounts in full.
Interest accrued and unpaid on Excess Interest on a Class of Bonds
shall be payable prior to accrued and unpaid Excess Interest on such
Class of Bonds.
(d) Principal Payments.
(i) On each Payment Date, the principal portion of each
Scheduled Payment shall be payable on the Class A, Class B and Class C
Bonds in the amount set forth on the Amortization Schedule or,
following the first Prepayment of the Bonds, in the amount reflecting
the adjustment in the Scheduled Payments from time to time pursuant to
Section 2.01(b). Principal payments (including Prepayments) on the
Bonds of each Class shall be made to the Holders of the Bonds of such
Class pro rata in the proportion that the principal balance of each
Outstanding Bond of such Class bears to the aggregate principal
balance of all Bonds of such Class.
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(ii) Beginning with the Trigger Date and continuing on each
Payment Date thereafter until the Bonds are paid in full, the Issuer
shall pay in addition to scheduled principal the Excess Principal
Payment for such Payment Date.
(iii) Subject to Sections 5.08 and 8.02, Excess Principal
Payments and Prepayments on the Bonds will be applied in sequential
order to the Class A, Class B and Class C Bonds until each such Class
has been paid in full.
(e) Prepayments and Yield Maintenance Premiums.
(i) On any Payment Date following the Lock-Out Period, the
Issuer may make voluntary Prepayments on the Bonds, in whole or in
part, provided that:
(A) no Event of Default shall have occurred and be
continuing (other than an Event of Default that will be cured
by such Prepayment);
(B) the Issuer shall have given no less than 10 days'
prior written notice to the Indenture Trustee and the
Servicer, such notice to specify the Class or Classes of Bonds
to be prepaid and the amount of such Prepayment;
(C) the Issuer pays with respect to the Bonds being
prepaid the applicable Yield Maintenance Premium, except that
no Yield Maintenance Premium will be required to be paid with
respect to such Prepayment to be applied on a Class of Bonds
during the Prepayment Window;
(D) if such Prepayment is being made in connection
with a Release of a Mortgaged Property, the conditions
precedent for a Release are satisfied; and
(E) all amounts required to be paid by the Issuer in
connection with such Prepayment are received by the Indenture
Trustee no later than the Remittance Date for the Payment Date
on which the Prepayment is to be applied, together with all
other amounts required to be paid by the Issuer on such
Payment Date.
Notwithstanding the foregoing, Prepayments made in connection
with Permitted Prepayment Events shall not be subject to the Lock-Out
Period or payment of the Yield Maintenance Premium.
(ii) Prepayment resulting from an Event of Loss shall be
payable on the related Special Payment Date and the portion of such
Prepayment allocable to interest shall equal the amount necessary to
pay accrued and unpaid interest on the portion of such Prepayment to
be allocable as principal at the applicable Class Interest Rate for
the Class of Bonds on which the prepaid principal will be applied.
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(iii) The Yield Maintenance Premium, to the extent required
to be paid pursuant hereto or the related Mortgage, will be applied as
excess interest for each Class of Bonds to which the prepaid principal
will be applied.
(f) Notwithstanding any of the foregoing provisions with respect
to payments of principal of and interest on the Bonds, if the Bonds have become
or been declared due and payable following an Event of Default and such
acceleration of maturity and its consequences have not been rescinded and
annulled, then payments of principal of and interest on the Bonds shall be made
in accordance with Section 5.08.
SECTION 2.02. DENOMINATIONS.
The Bonds shall be issuable only as registered Bonds in the minimum
denomination of $100,000 and integral multiples of $1,000 in excess thereof.
SECTION 2.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
(a) The Bonds shall be executed on behalf of the Issuer by the
President or one of the Vice Presidents of the Issuer's General Partner. The
signature of such officer on the Bonds may be manual or facsimile.
(b) Bonds bearing the manual or facsimile signature of an
individual who was at any time a proper officer of the General Partner shall
bind the Issuer, notwithstanding that such individual has ceased to hold such
office prior to the authentication and delivery of such Bonds or did not hold
such office at the date of such Bonds.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Bonds executed on behalf of
the Issuer to the Indenture Trustee for authentication; and the Indenture
Trustee shall authenticate and deliver such Bonds as in this Indenture provided
and not otherwise.
(d) The form of the Indenture Trustee's certificate of
authentication is as follows:
This is one of the Class ___ Bonds referred to in the
within-mentioned Indenture.
LaSalle National Bank,
as Indenture Trustee
By:
-----------------------
Authorized Signatory
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(e) Each Bond authenticated on the Closing Date shall be dated the
Closing Date. All other Bonds which are authenticated after the Closing Date
for any other purpose hereunder shall be dated the date of their
authentication.
(f) No Bond shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Bond a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized officers or employees, and such certificate upon any Bond shall be
conclusive evidence, and the only evidence, that such Bond has been duly
authenticated and delivered hereunder.
SECTION 2.04. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Issuer shall cause to be kept a register (the "Bond
Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Bonds and the
registration of transfers of Bonds. The Indenture Trustee is hereby initially
appointed "Bond Registrar" for the purpose of registering Bonds and transfers
of Bonds as herein provided. Upon any resignation of any Bond Registrar
appointed by the Issuer, the Issuer shall promptly appoint a successor or, in
the absence of such appointment, shall assume the duties of Bond Registrar.
(b) At any time the Indenture Trustee is not also the Bond
Registrar, the Indenture Trustee shall be a co-Bond Registrar. The Issuer
shall cause each co-Bond Registrar to furnish the Bond Registrar promptly after
each authentication of a Bond by it appropriate information with respect
thereto for entry by the Bond Registrar into the Bond Register. If the
Indenture Trustee shall at any time not be authorized to keep and maintain the
Bond Register, the Indenture Trustee shall have the right to inspect such Bond
Register at all reasonable times and to rely conclusively upon a certificate of
the Person in charge of the Bond Register as to the names and addresses of the
Holders of the Bonds and the principal amounts and numbers of such Bonds as
held.
(c) Upon surrender for registration of transfer of any Bond at the
office or agency of the Issuer to be maintained as provided in Section 3.02,
the Issuer shall execute, and the Indenture Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Bonds of any authorized denominations and of a like aggregate principal
amount.
(d) At the option of the Holder, Bonds may be exchanged for other
Bonds of any authorized denominations, and of a like aggregate initial
principal amount, upon surrender of the Bonds to be exchanged at such office or
agency. Whenever any Bonds are so surrendered for exchange, the Issuer shall
execute, and the Indenture Trustee shall authenticate and deliver, the Bonds
that the Bondholder making the exchange is entitled to receive.
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(e) All Bonds issued upon any registration of transfer or exchange
of Bonds shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Bonds
surrendered upon such registration of transfer or exchange.
(f) Every Bond presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing.
(g) No service charge shall be made for any registration of
transfer or exchange of Bonds, but the Issuer or the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge as may be imposed in connection with any registration of transfer or
exchange of Bonds.
SECTION 2.05. MUTILATED, DESTROYED, LOST OR STOLEN BONDS.
(a) If (1) any mutilated Bond is surrendered to the Indenture
Trustee or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Bond, and (2) there is delivered to the
Indenture Trustee such security or indemnity as may be required by the Issuer
and the Indenture Trustee to save each of the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer or the Indenture Trustee
that such Bond has been acquired by a bona fide purchaser, the Issuer shall
execute and upon its request the Indenture Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Bond, a new Bond or Bonds of the same tenor and aggregate initial
principal amount bearing a number not contemporaneously outstanding. If, after
the delivery of such new Bond, a bona fide purchaser of the original Bond in
lieu of which such new Bond was issued presents for payment such original Bond,
the Issuer and the Indenture Trustee shall be entitled to recover such new Bond
from the person to whom it was delivered or any person taking therefrom, except
a bona fide purchaser, and shall be entitled to recover upon the security or
indemnity, provided therefor to the extent of any loss, damage, cost or
expenses incurred by the Issuer or the Indenture Trustee in connection
therewith. If any such mutilated, destroyed, lost or stolen Bond shall have
become or shall be about to become due and payable, instead of issuing a new
Bond, the Issuer may pay such Bond without surrender thereof, except that any
mutilated Bond shall be surrendered.
(b) Upon the issuance of any new Bond under this Section, the
Issuer, the Indenture Trustee or the Bond Registrar may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee or the Bond Registrar) connected
therewith.
(c) Every new Bond issued pursuant to this Section in lieu of any
destroyed, lost or stolen Bond shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Bond shall be at any time enforceable by anyone, and shall
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be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Bonds duly issued hereunder.
(d) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Bonds.
SECTION 2.06. PAYMENTS ON THE BONDS.
(a) Payments on Bonds issued as Global Bonds will be made by or on
behalf of the Indenture Trustee to DTC or its nominee. Payments on any IAI
Bonds or Definitive Bonds that are punctually paid or duly provided for by the
Issuer on the applicable Payment Date (or Special Payment Date) shall be paid
to the Person in whose name such Bond (or one or more Predecessor Bonds) is
registered at the close of business on the Record Date for such Payment Date
(or Special Payment Date) by wire transfer of immediately available funds to
the account of a Bondholder, unless such Bondholder has not either provided the
Indenture Trustee with wiring instructions in writing by five days prior to the
related Record Date or provided the Indenture Trustee with such instructions
for any previous Payment Date, in which case, payments on the Bonds will be
made by check mailed to such Person's address as it appears in the Bond
Register on such Record Date. Notwithstanding the above, the final installment
of principal payable with respect to such Bond shall be payable as provided in
subsection (c) below of this Section 2.06. A fee may be charged by the
Indenture Trustee to a Bondholder of Definitive Bonds (or IAI Bonds) for any
payment made by wire transfer. Any required payments on the Bonds not
punctually paid or duly provided for shall be payable as soon as funds are
available to the Indenture Trustee for payment thereof, or if Section 5.08
applies, pursuant to Section 5.08.
(b) All reductions in the principal amount of a Bond (or one or
more Predecessor Bonds) effected by payments of installments of principal made
on any Payment Date (or Special Payment Date) shall be binding upon all Holders
of such Bond and of any Bond issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof, whether or not such payment is
noted on such Bond.
(c) The final installment of principal of each Bond shall be
payable only upon presentation and surrender thereof on or after the Payment
Date (or Special Payment Date) therefor at the Indenture Trustee's Corporate
Trust Office or New York Presenting Office pursuant to Section 3.02. Whenever
the Indenture Trustee expects that the entire remaining unpaid principal
balance of any Bond will become due and payable on the next Payment Date (or
Special Payment Date), it shall, no later than one Business Day prior to such
Payment Date (or Special Payment Date), telecopy or hand deliver to each Person
in whose name a Bond to be so retired is registered at the close of business on
such otherwise applicable Record Date a notice to the effect that:
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(i) the Indenture Trustee expects that funds sufficient
to pay such final installment will be available in the Collateral
Proceeds Account on such Payment Date (or Special Payment Date); and
(ii) if such funds are available, (A) such final
installment will be payable on such Payment Date (or Special Payment
Date), but only upon presentation and surrender of such Bond at the
office or agency of the Indenture Trustee maintained for such purpose
pursuant to Section 3.02 (the address of which shall be set forth in
such notice) and (B) no interest shall accrue on such Bond after such
Payment Date (or Special Payment Date).
(d) Subject to the foregoing provisions of this Section, each Bond
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Bond shall carry the rights to unpaid principal and
interest and other amounts that were carried by such other Bond. Any checks
mailed pursuant to subsection (a) of this Section 2.06 and returned undelivered
shall be held in accordance with Section 3.03.
(e) Not later than each Payment Date, the Indenture Trustee shall
prepare a statement (a "Payment Date Statement") with respect to such Payment
Date setting forth:
(i) the amount of the related Scheduled Payment allocable
as interest and principal to the Class A Bonds, Class B Bonds and
Class C Bonds on such Payment Date;
(ii) the amount of interest actually paid to Class A
Bondholders, Class B Bondholders and Class C Bondholders on such
Payment Date;
(iii) the amount of Excess Principal Payments payable on
each Class of Bonds on such Payment Date and the aggregate amount of
scheduled principal actually paid to Class A Bondholders, Class B
Bondholders and Class C Bondholders on such Payment Date;
(iv) the aggregate amount of Prepayments, including
Release Price payments, made on each of the Class A, Class B and Class
C Bonds on such Payment Date and any other Prepayments made on a
Special Payment Date (and any interest thereon) to the extent not
previously reported and the principal balance of the Outstanding Class
A Bonds, Class B Bonds and Class C Bonds after giving effect to such
payments and any scheduled payments of principal on such Payment Date;
(v) the amount of any Yield Maintenance Premiums paid to
the Class A Bonds, Class B Bonds and Class C Bonds with respect to
such Payment Date;
(vi) the amount of Excess Interest accrued with respect to
each of the Class A, Class B and Class C Bonds as of such Payment Date
since the previous Payment Date
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and the aggregate amount of accrued and unpaid Excess Interest on each
such Class as of such Payment Date, plus interest accrued and unpaid
on such Excess Interest, for each such Class as of such Payment Date
and the amount of such Excess Interest to be paid on each such Class
on such Payment Date;
(vii) the aggregate amount of P&I Advances included in the
payments described in clauses (ii) and (iii) and the aggregate amount
of xxxxxxxxxxxx X&X Advances and Property Protection Advances at the
close of business on the related Determination Date (as reported by
the Servicer to the Indenture Trustee);
(viii) the amount of Indenture Trustee Fees (including
co-trustee fees payable hereunder) and Servicing Fees (as reported by
the Servicer) payable with respect to such Payment Date and any such
fees accrued but unpaid as of the related Determination Date;
(ix) the amount, if any, withdrawn from the Central
Account (as reported by the Servicer) and the Collateral Proceeds
Account and paid to the Indenture Trustee, the Fiscal Agent or the
Servicer as reimbursement for Advances, plus Advance Interest paid
thereon on or prior to the related Determination Date, to the extent
not previously reported;
(x) as reported by the Servicer to the Indenture Trustee,
the amount of (A) any withdrawals from the FF&E Reserve Sub-Account on
or prior to the related Determination Date, to the extent not
previously reported, (B) any costs for FF&E Replacements submitted to
the Servicer for reimbursement by the Issuer but unreimbursed as of
the related Determination Date, and (C) funds remaining in the FF&E
Reserve Sub-Account as of the related Determination Date;
(xi) as reported by the Servicer to the Indenture Trustee,
the amount of (A) any funds released from the Loss Proceeds Account to
the Issuer on or prior to the related Determination Date for the
purpose of Restorations or otherwise (as indicated therein), to the
extent not previously reported, (B) funds remitted to the Collateral
Proceeds Account from the Loss Proceeds Account on or prior to the
related Determination Date, to the extent not previously reported,
and (C) funds, if any, in the Loss Proceeds Account as of the related
Determination Date; and
(xii) the amount, if any, released to the Issuer from the
Central Account on such Payment Date on or prior to the related
Determination Date, as reported by the Servicer to the Indenture
Trustee, to the extent not previously reported.
In the case of information furnished pursuant to clauses (i),
(ii) and (iii) above, the amounts may be expressed as a dollar amount per
$1,000 denomination of Bonds.
(f) On each Payment Date, the related Payment Date Statement will
be delivered by the Indenture Trustee as described below only in the event it
receives the related Servicer report
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in the form and by the time required under Section 3.06 of the Servicing
Agreement. On each Special Payment Date, the Indenture Trustee shall deliver a
statement (a "Special Payment Date Statement") setting forth the aggregate
amount of Prepayments, plus interest thereon, to be paid on such Special
Payment Date to Class A Bondholders, Class B Bondholders and Class C
Bondholders and the principal balance of the Outstanding Class A Bonds, Class B
Bonds, and Class C Bonds after giving effect to such Prepayments. On each
Payment Date and Special Payment Date, the related Payment Date Statement and
Special Payment Date Statement, respectively, shall be delivered by the
Indenture Trustee to the Issuer, DTC, the Initial Purchasers and the Rating
Agency and shall also be delivered to each Bondholder as the statement required
pursuant to Section 8.05. The Indenture Trustee shall have no responsibility
to recalculate, verify or recompute information contained in any such
Servicer's report.
(g) On the Payment Date following receipt by the Indenture
Trustee, the Indenture Trustee will deliver to each Bondholder who has provided
the Indenture Trustee with a one-time written request the financial statements
and reports required to be delivered by the Issuer to the Indenture Trustee
pursuant to Section 5.01(a) of the Mortgages. The Indenture Trustee shall
have no responsibility to recalculate, verify or recompute information
contained in any such financial statements or reports.
(h) Within a reasonable period of time after the end of each
calendar year, the Indenture Trustee will be required to furnish to each person
who at any time during the calendar year was a Bondholder a statement
containing certain information set forth in paragraph (e) above, aggregated for
such calendar year or the applicable portion thereof during which such person
was a Bondholder. Such obligation will be deemed to have been satisfied to the
extent that substantially comparable information is provided pursuant to any
requirements of the Code as are from time to time in force.
SECTION 2.07. PERSONS DEEMED OWNERS.
Prior to due presentment for registration of transfer of any Bond, the
Issuer, the Indenture Trustee, any Agent and any other agent of the Issuer or
the Indenture Trustee may treat the Person in whose name any Bond is registered
as the owner of such Bond (a) on the applicable Record Date for the purpose of
receiving required payments on such Bond and (b) on any other date for all
other purposes whatsoever, and neither the Issuer, the Indenture Trustee, any
Agent nor any other agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.08. CANCELLATION.
All Bonds surrendered for payment, registration of transfer or
exchange shall, if surrendered to any Person other than the Indenture Trustee,
be delivered to the Indenture Trustee and shall be promptly canceled by it.
The Issuer may at any time deliver to the Indenture Trustee for cancellation
any Bond previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and all Bonds so delivered shall be
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promptly canceled by the Indenture Trustee. No Bonds shall be authenticated in
lieu of or in exchange for any Bonds canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Bonds held by
the Indenture Trustee shall be held by the Indenture Trustee in accordance with
its standard retention policy, unless the Issuer shall direct by an Issuer
Order that they be destroyed or returned to it.
SECTION 2.09. AUTHENTICATION AND DELIVERY OF BONDS.
The Bonds may be executed by the Issuer and delivered to the Indenture
Trustee for authentication, and thereupon the same shall be authenticated and
delivered by the Indenture Trustee, upon Issuer Request and upon receipt by the
Indenture Trustee of the following:
(a) an Officer's Certificate evidencing the authorization
of the execution and delivery of this Indenture and the execution,
authentication and delivery of the Bonds, and specifying the Stated
Maturity, the principal amount and the Class Interest Rate of each
Class of Bonds to be authenticated and delivered; and
(b) one or more Opinions of Counsel (upon which the
Indenture Trustee may rely) regarding conditions precedent relating to
the authentication and delivery of the Bonds, which Opinions of
Counsel shall be reasonably satisfactory in form and substance to the
Indenture Trustee.
In rendering the opinions set forth in paragraph (b) above,
such counsel may rely upon officer's certificates of the General
Partner, the Issuer, the Servicer, and the Indenture Trustee, without
independent confirmation or verification with respect to factual
matters relevant to such opinions.
(c) an Officers' Certificate complying with the
requirements of Section 10.01 and stating that:
(i) the Issuer is not in Default under this
Indenture and the issuance of the Bonds will not result in any
breach of any of the terms, conditions or provisions of, or
constitute a default under, the Issuer's Certificate of
Limited Partnership or Partnership Agreement or any indenture,
mortgage, deed of trust or other agreement or instrument to
which the Issuer is a party or by which it is bound, or any
order of any court or administrative agency entered in any
proceeding to which the Issuer is a party or by which it may
be bound or to which it may be subject, and that all
conditions precedent provided in this Indenture relating to
the authentication and delivery of the Bonds have been
complied with;
(ii) the information set forth in the schedule
attached as Schedule A to this Indenture is correct; and
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(iii) attached thereto is a true and correct copy
of a letter signed by the Rating Agency confirming that the
Class A Bonds have been rated "AA," the Class B Bonds have
been rated "A" and the Class C Bonds have been rated "BBB" by
such Rating Agency.
SECTION 2.10. FORMS OF BONDS.
(a) The Class A, Class B and Class C Bonds shall be in
substantially the form set forth in Exhibits A, B and C, respectively, attached
hereto with such insertions, omissions, substitutions and other variations as
are required or permitted hereunder, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be necessary or desirable as determined by the officers executing such
Bonds, as evidenced by their execution thereof. Only the Global Bonds will
contain the first paragraph of Exhibits A, B and C.
(b) Bonds sold within the United States to investors that are
Institutional Accredited Investors, but that are not QIBs, will be issued and
registered in certificated form as IAI Bonds. Upon the written request of a
QIB that is purchasing a Bond on the Closing Date, such purchaser may obtain a
Bond in definitive, certificated form (a "Definitive Bond") rather than through
the facilities of DTC. The Definitive Bonds and the IAI Bonds may be produced
in any manner determined by the officers executing such Bonds, as evidenced by
their execution thereof.
(c) Except as set forth in paragraph (b) above, Bonds of each
Class sold within the United States to QIBs will be represented initially by a
single Global Bond in definitive, fully registered form without interest
coupons (a "Rule 000X Xxxxxx Xxxx") and will be registered in the name of DTC
or its nominee, and deposited with the Indenture Trustee as custodian for DTC.
The aggregate principal amount of the Rule 144A Global Bond may be increased or
decreased from time to time by adjustments made on the books and records of the
Indenture Trustee and DTC or its nominee, as hereinafter provided.
(d) Bonds of each Class sold in offshore transactions in reliance
on Regulation S initially will be represented by a single Global Bond in
definitive, fully registered form without interest coupons (each, a "Regulation
S Temporary Global Bond") and will be deposited on behalf of the subscribers
therefor with the Indenture Trustee as custodian for DTC. The Regulation S
Temporary Global Bond will be registered in the name of DTC or its nominee, for
credit to the subscribers' respective accounts at Euroclear or CEDEL.
Beneficial interests in the Regulation S Temporary Global Bond may be held only
through Euroclear or CEDEL. The aggregate principal amount of the Regulation S
Temporary Global Bond may be increased or decreased from time to time by
adjustments made on the books and records of the Indenture Trustee and DTC or
its nominee, as hereinafter provided.
Within a reasonable period of time after the expiration of the 40-day
restricted period referred to in Rule 903(c)(3) of Regulation S (the "40-day
restricted period"), the Regulation S Temporary Global Bond will be exchanged
for another Global Bond registered in the name of
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DTC or its nominee, and deposited with the Indenture Trustee as custodian for
DTC (the "Regulation S Permanent Global Bond"), but only upon delivery of
certifications of compliance in the form of Exhibit D and Exhibit E (the
"Regulation S Exchange Certificates"). Investors that hold beneficial
interests in the Regulation S Permanent Global Bond may hold such interests
through CEDEL, Euroclear or other organizations that are participants in the
DTC system. The aggregate principal amount of the Regulation S Permanent
Global Bond may be increased or decreased from time to time by adjustments made
on the books and records of the Indenture Trustee and DTC or its nominee, as
hereinafter provided.
(e) The Indenture Trustee shall deal with DTC and Participants as
representatives of the Bond Owners of such Bonds for purposes of exercising the
rights of Bondholders hereunder. Each required payment on a Global Bond shall
be paid to DTC, which shall credit the amount of such payments to the account
of its Participants in accordance with its normal procedures. Each Participant
shall be responsible for disbursing such payments to the Bond Owners of the
Global Bonds that it represents and to each indirect participating brokerage
firm (a "brokerage firm" or "indirect participating firm") for which it acts as
agent. Each brokerage firm shall be responsible for disbursing funds to the
Bond Owners of the Global Bonds that it represents. All such credits and
disbursements are to be made by DTC and the Participants in accordance with the
provisions of the Bonds. None of the Indenture Trustee, the Bond Registrar, if
any, the Issuer, or any Agents shall have any responsibility therefore except
as otherwise provided by applicable law. Requests and directions from, and
votes of, such representatives shall not be deemed to be inconsistent if they
are made with respect to different Bond Owners.
SECTION 2.11. TERMINATION OF BOOK-ENTRY SYSTEM.
(a) The book-entry system through DTC with respect to the Global
Bonds may be terminated upon the happening of any of the following:
(i) DTC or the Issuer advises the Indenture Trustee that
DTC is no longer willing or able properly to discharge its
responsibilities under the Letter Agreement (attached as Exhibit F)
and the Issuer is unable to locate a qualified successor clearing
agency satisfactory to the Indenture Trustee and the Issuer;
(ii) The Issuer, in its sole discretion but with the
consent of the Indenture Trustee, elects to terminate the book-entry
system by notice to DTC and the Indenture Trustee; or
(iii) After the occurrence of an Event of Default when such
notice shall be given pursuant to Section 6.02 (at which time the
Indenture Trustee shall promptly notify DTC of such Event of Default),
the Bond Owners of a majority in principal balance of the Outstanding
Global Bonds advise the Indenture Trustee in writing, through the
related Participants and DTC, that the continuation of a book-entry
system through DTC to the exclusion of any Definitive Bonds being
issued to any person other than DTC or its nominee is no longer in the
best interests of the Bond Owners.
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(b) Upon the occurrence of any event described in subsection (a)
above, the Indenture Trustee shall notify DTC of the occurrence of such event
and of the availability of Definitive Bonds to Bond Owners requesting the same,
in an aggregate current principal balance of the Outstanding Bonds representing
the interest of each, making such adjustments and allowances as it may find
necessary or appropriate as to accrued interest. Definitive Bonds shall be
issued only upon surrender to the Indenture Trustee of the Global Bond(s) by
DTC, accompanied by registration instructions for the Definitive Bonds.
Neither the Issuer nor the Indenture Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon issuance of the Definitive
Bonds, all references herein to obligations imposed upon or to be performed by
DTC shall cease to be applicable and the provisions relating to Definitive
Bonds shall be applicable.
SECTION 2.12. GENERAL RESTRICTIONS ON TRANSFERS.
(a) The Bonds will not be registered under the 1933 Act, or any
state securities or "blue sky" laws, and none of the Indenture Trustee, the
Fiscal Agent, the Issuer, the Placement Agent nor the Servicer are under any
obligation to register or qualify the Bonds under the 1933 Act or any state
securities laws or to provide registration rights to any purchaser. No sale,
pledge or other transfer of any Bond or any beneficial interest therein may be
made by any person unless such sale, pledge or other transfer is made (i) to
the Issuer or the Initial Purchasers, (ii) pursuant to an effective
registration statement under the 1933 Act and effective registration or
qualification under applicable state securities laws, or (iii) (A) to QIBs in
transactions complying with the requirements of Rule 144A, (B) to Institutional
Accredited Investors who sign an agreement substantially in the form of Exhibit
G hereto (a "Transferee Agreement"), or (C) in transactions outside the United
States complying with the provisions of Regulation S.
(b) Each Person who becomes a Bondholder or a Bond Owner will be
deemed to have agreed to indemnify the Issuer, the Placement Agent, the
Indenture Trustee, the Fiscal Agent and the Servicer against any liability that
may result if such holder transfers such Bond or interest in a manner that is
not exempt or in accordance with applicable federal, state and foreign
securities laws. In addition, each Bondholder and Bond Owner that does not
execute a Transferee Agreement shall be deemed to have represented and
warranted as follows:
(i) It is purchasing the Bonds for its own account or an
account with respect to which it exercises sole investment discretion,
and it or the owner of such account is (A) a QIB, and, except with
respect to the Initial Purchaser, is aware that the sale to it is
being made in reliance on Rule 144A; (B) an Institutional Accredited
Investor, or (C) not a U.S. Person for purposes of the 1933 Act and is
acquiring the Bond pursuant to Regulation S; and in the case of each
of (A) and (B) above, it is not acquiring such Bonds with a view to
any resale or distribution thereof other than in accordance with the
restrictions set forth below.
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(ii) It acknowledges that the Bonds have not been and will
not be registered under the 1933 Act or any state securities law and
may not be reoffered, resold or otherwise transferred except as
permitted below.
(iii) Each holder of a Bond described in clause (i)(A) and
(i)(B) above agrees that (A) within three years after the later of the
original issuance of the Bonds or the sale thereof by an affiliate of
the Issuer (computed in accordance with paragraph (d) of Rule 144
under the 0000 Xxx) or if such holder was at the date of such
transfer or during the three months preceding such date of transfer an
affiliate of the Issuer, the Bonds may not be reoffered, resold,
pledged or otherwise transferred except in compliance with any
applicable securities laws of any state of the United States and only
(1) to the Issuer or the Initial Purchaser, (2) pursuant to Rule 144A,
to a person who the holder reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the 1933 Act
purchasing for its own account or the account of another qualified
institutional buyer to whom notice is given that the transfer is being
made in reliance on Rule 144A, (3) outside the United States in
compliance with Rule 903 or Rule 904 of Regulation S under the 1933
Act, or (4) to an Institutional Accredited Investor, but only if, in
connection with any transfer pursuant to clause (4) and certain other
transfers as specified in the Indenture, a Transferee Agreement is
delivered by the transferee to the Indenture Trustee, and (B) it will
give the transferee notice of these restrictions on resale of the
Bonds.
(iv) Each holder of a Bond described in clause (i)(A) and
(i)(B) above understands that each such Bond, unless the Issuer
determines otherwise consistent with applicable law, will bear a
legend to the following effect:
THIS BOND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS BOND, AGREES FOR THE BENEFIT OF THE ISSUER
AND THE INDENTURE TRUSTEE THAT THIS BOND MAY NOT BE RESOLD, PLEDGED,
OR OTHERWISE TRANSFERRED (X) WITHIN THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE HEREOF OR THE SALE HEREOF BY AN AFFILIATE OF THE
ISSUER (COMPUTED IN ACCORDANCE WITH PARAGRAPH (d) OF RULE 144 UNDER
THE 1933 ACT) OR (Y) BY AN AFFILIATE OF THE ISSUER OR BY ANY HOLDER
THAT WAS AN AFFILIATE OF THE ISSUER AT ANY TIME DURING THE THREE
MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN
IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND ONLY (1) TO THE ISSUER OR THE INITIAL PURCHASER, (2)
PURSUANT TO RULE 144A, TO A PERSON WHO THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE 1933 ACT PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER
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IS BEING MADE IN RELIANCE ON RULE 144A, (3) OUTSIDE THE UNITED STATES
IN COMPLIANCE WITH RULE 903 OR RULE 000 XX XXXXXXXXXX X XXXXX XXX 0000
XXX OR (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE 1933 ACT; AND IN CONNECTION WITH ANY TRANSFER
PURSUANT TO CLAUSE (4) AND CERTAIN OTHER TRANSFERS AS SPECIFIED IN THE
INDENTURE, A TRANSFEREE AGREEMENT IN THE APPROPRIATE FORM PROVIDED IN
THE INDENTURE MUST BE DELIVERED TO THE INDENTURE TRUSTEE.
(v) Each holder of a Bond described in subclause (i)(C)
above understands that any offers, sales or deliveries of the Bonds
purchased by it in the United States or to U.S. persons prior to the
date that is 40 days after the later of the commencement of the
offering and the date of issuance of the Bonds may constitute a
violation of United States law.
(vi) Each holder of a Bond described in subclause (i)(C)
above understands that each such Bond, unless the Issuer determines
otherwise consistent with applicable law, will bear a legend to the
following effect:
THIS BOND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "1933 ACT") AND PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE
OFFERING AND THE CLOSING DATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
1933 ACT.
(vii) It acknowledges that (A) it has been afforded an
opportunity to request from the Issuer and to review, and it has
received, all additional information considered by it to be necessary
to verify the accuracy of the information herein and (B) no person has
been authorized to give any information or to make any representation
concerning the Bonds other than those contained in this Memorandum
and, if given or made, such other information or representation should
not be relied upon as having been authorized by the Issuer.
(viii) It has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks
of purchasing the Bonds, and is, and the owner of any account for
which it is acting is, able to bear the economic risk of its
investment.
(ix) It understands that the Issuer, the Indenture
Trustee, the Initial Purchaser and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations and
agreements and agrees that if any of the acknowledgments,
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representations, or warranties deemed to have been made by it by its
purchase of the Bonds are no longer accurate, it shall promptly notify
the Issuer. If it is acquiring any Bonds as fiduciary or agent for
one or more investor accounts, it represents that it has sole
investment discretion with respect to each such account and that it
has full power to make the foregoing acknowledgments, representations
and agreements on behalf of such account.
SECTION 2.13. TRANSFERS OF BONDS FROM ONE FORM TO ANOTHER.
(a) Global to Definitive or IAI Bonds. If a Bond Owner who holds
a beneficial interest in a Rule 144A Global Bond or Regulation S Permanent
Global Bond proposes to transfer a Bond (i) within the United States otherwise
than pursuant to Rule 144A and the date of such proposed transfer is prior to
three years after the later of the date of original issuance of the Bonds (or
any predecessor of such Bond) or the sale of such Bond (or any predecessor of
such Bond) by the Issuer or an Affiliate of the Issuer, or (ii) the proposed
transferee wishes to hold such Bond in definitive, certificated form, then such
Bond Owner must obtain the consent of the Indenture Trustee to the transfer.
The Indenture Trustee shall consent to such transfer if the proposed transferor
provides a transfer certificate substantially in the form of Exhibit H hereto
and the transferee delivers an executed Transferee Agreement to the Indenture
Trustee no later than 30 days prior to the date on which the transfer is to be
effectuated and reflected in the Bond Register. After approval of the
transfer, the Issuer will cause the requested IAI Bonds (in the case of clause
(i) above) or Definitive Bonds (in the case of clause (ii) above), to be
prepared for execution and delivery, and the Indenture Trustee shall
authenticate such Bond in accordance with this Indenture. Subject to DTC's
customary procedures, the Bond Owner's interest in the Bonds held by DTC will
be reduced in an amount equal to the aggregate principal amount of the Bond
being transferred (and the Rule 144A Global Bond or the Regulation S Permanent
Global Bond, as applicable, held by DTC will be modified or substituted for
accordingly) and a Definitive Bond or IAI Bond in an equal aggregate principal
amount registered in the name of the transferee shall be delivered to such
transferee. Thereafter, such transferee shall be recognized as a Bondholder
under the Indenture. In all cases, Definitive Bonds or IAI Bonds delivered in
exchange for any beneficial interests therein will be registered in the names,
and issued in any approved denominations, requested by DTC.
Regulation S Temporary Global Bonds may not be exchanged for, or
transferred to a Person who takes delivery in the form of, IAI Bonds or
Definitive Bonds.
(b) Definitive or IAI to Global Bonds. If a Bondholder that holds
a Definitive Bond or an IAI Bond wishes to transfer such Bond pursuant to Rule
144A and the proposed transferee is a QIB that wishes to hold such Bond through
DTC, then, upon written request of such Bondholder 30 days in advance,
accompanied by a certificate in the form of Exhibit I hereto (the "Rule 144A
Certificate"), and subject to the rules and procedures of DTC, the Indenture
Trustee shall arrange for such Bond to be represented by a Rule 144A Global
Bond registered to DTC. If a Bondholder that holds a Definitive Bond or IAI
Bond wishes to transfer such Bond pursuant to Regulation S and the proposed
transferee is a Person other than a U.S. Person that wishes to
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hold such Bond through DTC, then, upon written request (by presentation of a
transfer certificate in the form of Exhibit H) of such Bondholder 30 days in
advance, subject to the rules and procedures of DTC and, if applicable,
Euroclear or CEDEL, the Indenture Trustee shall arrange for such Bond to be
represented by a Regulation S Permanent Global Bond (or, if the Regulation S
Temporary Global Bond has not been exchanged for the Regulation S Permanent
Global Bond, a Regulation S Temporary Global Bond) registered in the name of
DTC or a nominee thereof.
(c) Global to Another Global. A beneficial interest in a
Regulation S Permanent Global Bond may be transferred to a person who takes
delivery in the form of an interest in a Rule 144A Global Bond, subject to the
rules and procedures of DTC and Euroclear or CEDEL and upon receipt by the
Indenture Trustee of a transfer certificate in the form of Exhibit H from the
transferor. A beneficial interest in a Rule 144A Global Bond may be
transferred to a person who takes delivery in the form of an interest in a
Regulation S Temporary Global Bond or, after the 40-day restricted period
described in 903(c)(3) of Regulation S, Regulation S Permanent Global Bond,
subject to the rules and procedures of DTC and upon receipt by the Indenture
Trustee of a transfer certificate in the form of Exhibit H.
A beneficial interest in a Regulation S Temporary Global Bond may not
be transferred to a person who takes delivery in the form of an interest in a
Rule 144A Global Bond. A Regulation S Temporary Global Bond may be exchanged
for a Regulation S Permanent Bond in accordance with Section 2.10(d).
Any beneficial interest in one of the Global Bonds that is transferred
to a person who takes delivery in the form of an interest in another Global
Bond will, upon transfer, cease to be an interest in such Global Bond and
become an interest in the other Global Bond and, accordingly, will thereafter
be subject to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Bond for as long as it remains such
an interest.
SECTION 2.14. NO OBLIGATION TO MONITOR COMPLIANCE.
Neither the Indenture Trustee nor the Bond Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction on transfer or exchange of Bonds or any interest therein under this
Article II or under applicable law other than to require delivery of the
agreements, certificates and/or opinions described in this Article II. Other
than as with respect to the obligations set forth in the preceding sentence,
the Indenture Trustee and the Bond Registrar shall have no liability for
transfers of Bonds including transfers made through the book-entry facilities
of DTC or between or among any DTC participants or Bond Owners, made in
violation of applicable restrictions.
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ARTICLE III.
COVENANTS
SECTION 3.01. PAYMENT OF BONDS.
The Issuer shall pay or cause to be duly and punctually paid the
principal of, and interest and other amounts on, the Bonds in accordance with
the terms of the Bonds and this Indenture. The Bonds shall be non-recourse
obligations of the Issuer and shall be limited in right of payment to amounts
available from the Trust Estate as provided in this Indenture and neither the
Issuer nor any other Person shall otherwise be liable for payments on the Bonds
except as expressly provided under the Loan Documents. If any other provision
of this Indenture conflicts or is deemed to conflict with the provisions of
this Section 3.01, the provisions of this Section 3.01 shall control.
SECTION 3.02. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer shall cause the Indenture Trustee to maintain an office or
agency as a location where Bonds may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Bonds and this Indenture may be served. The Indenture Trustee
has appointed its Corporate Trust Office, or in the alternative, its New York
Presenting Office as the presenting agent for such purpose and for the purpose
of presentment or surrender for payment of the Bonds and such agency shall be
maintained at the Indenture Trustee's expense.
The Issuer may also from time to time at its own expense designate one
or more other offices or agencies (in or outside the City of New York) where
the Bonds may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that (i) no
such designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York, the State of New York, for the purposes set forth in the
preceding paragraph, (ii) presentations or surrenders of Bonds for payment may
be made only in the City of New York, the State of New York and (iii) any
designation of an office or agency for payment of Bonds shall be subject to
Section 3.03. The Issuer will give prompt written notice to the Indenture
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 3.03. MONEY FOR BOND PAYMENTS TO BE HELD IN TRUST.
(a) All payments of amounts due and payable with respect to any
Bonds which are to be made from amounts withdrawn from the Collateral Proceeds
Account pursuant to Section 8.02(c) or 8.02(d) or Section 5.08 shall be made on
behalf of the Issuer by the Indenture Trustee or by a Paying Agent, and no
amounts so withdrawn from the Collateral Proceeds Account for
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payments of Bonds shall be paid over to the Issuer under any circumstances
except as provided in this Section 3.03 or in Section 5.08 or 8.02(e).
(b) If the Issuer shall have a Paying Agent that is not also the
Bond Registrar, it shall furnish, or cause the Bond Registrar to furnish, no
later than each Record Date, a list, in such form as such Paying Agent may
reasonably require, of the names and addresses of the Holders of Bonds and of
the Class and principal balance of the Bonds held by each such Holder.
(c) Whenever the Issuer shall have a Paying Agent other than the
Indenture Trustee, it will, on or before the Business Day next preceding each
Payment Date (or Special Payment Date) direct the Indenture Trustee to deposit
with such Paying Agent an aggregate sum sufficient to pay the amounts then
becoming due (to the extent funds are then available for such purpose in the
Collateral Proceeds Account), such sum to be held in trust for the benefit of
the Persons entitled thereto. Any moneys deposited with a Paying Agent in
excess of an amount sufficient to pay the amounts then becoming due on the
Bonds with respect to which such deposit was made shall, upon Issuer Order, be
paid over by such Paying Agent to the Indenture Trustee for application in
accordance with Article VIII.
(d) Any Paying Agent other than the Indenture Trustee shall be
appointed by Issuer Order and at the expense of the Issuer. The Issuer shall
not appoint any Paying Agent (other than the Indenture Trustee) which is not,
at the time of such appointment, a depository institution or trust company
whose obligations would be Permitted Investments pursuant to clause (b) of the
definition of the term "Permitted Investments." The Issuer will cause each
Paying Agent other than the Indenture Trustee to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent shall agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby
so agrees), subject to the provisions of this Section, that such Paying Agent
will:
(i) allocate all sums received for payment to the Holders
of Bonds on each Payment Date (and Special Payment Date) among such
Holders in the proportion specified in the applicable Payment Date
Statement, in each case to the extent permitted by applicable law;
(ii) hold all sums held by it for the payment of amounts
due with respect to the Bonds in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(iii) if such Paying Agent is not the Indenture Trustee,
immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of the
Bonds if at any time it ceases to meet the standards set forth above
required to be met by a Paying Agent at the time of its appointment;
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(iv) if such Paying Agent is not the Indenture Trustee, at
any time during the continuance of any Default by the Issuer, upon the
written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent; and
(v) comply with all requirements of the Code, and all
regulations thereunder, with respect to the withholding of taxes from
any payments made by it on any Bonds of any applicable withholding
taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith; provided, however, that with
respect to withholding and reporting requirements applicable to
original issue discount (if any) on any of the Bonds, the Issuer has
provided the calculations pertaining thereto to the Paying Agent.
(e) The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or any other purpose, by Issuer
Order direct any Paying Agent, if other than the Indenture Trustee, to pay to
the Indenture Trustee all sums held in trust by such Paying Agent, such sums to
be held by the Indenture Trustee upon the same trusts as those upon which such
sums were held by such Paying Agent; and upon such payment by any Paying Agent
to the Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
(f) Any money held by the Indenture Trustee or any Paying Agent in
trust for the payment of any amount due with respect to any Bond and remaining
unclaimed for two and one-half years after such amount has become due and
payable to the Holder of such Bond (or if earlier, three months before the date
on which such amount would escheat to a governmental entity under applicable
law) shall be discharged from such trust and paid to the Issuer; and the Holder
of such Bond shall thereafter, as an unsecured general creditor, look only to
the Issuer for payment thereof (but only to the extent of the amounts so paid
to the Issuer), and all liability of the Indenture Trustee or such Paying Agent
with respect to such trust money shall thereupon cease. The Indenture Trustee
may adopt and employ, at the expense of the Issuer, any reasonable means of
notification of such repayment (including, but not limited to, mailing notice
of such repayment to Holders whose right to interest in moneys due and payable
but not claimed is determinable from the records of the Indenture Trustee or
any Agent, at the last address of record for each such Holder).
SECTION 3.04. PROTECTION OF TRUST ESTATE.
(a) The Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other
instruments, and will take such other action as may be necessary or advisable
to:
(i) Grant more effectively all or any portion of the
Trust Estate;
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(ii) maintain or preserve the lien of this Indenture or
carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the validity of
any Grant made or to be made by this Indenture; or
(iv) preserve and defend title to the Trust Estate and the
rights of the Indenture Trustee, and of the Bondholders, in the
Mortgages and the other property held as part of the Trust Estate
against the claims of all Persons and parties.
The Issuer hereby designates the Indenture Trustee its agent
and attorney-in-fact to execute any financing statement, continuation statement
or other instrument required pursuant to this Section 3.04; provided, however,
that such designation shall not be deemed to create a duty in the Indenture
Trustee to monitor the compliance of the Issuer with the foregoing covenants;
and provided further, however, that the duty of the Indenture Trustee to
execute any instrument required pursuant to this Section 3.04 shall arise only
if the Indenture Trustee has knowledge pursuant to Section 6.01(d) of the
occurrence of a failure of the Issuer to comply with the provisions of this
Section 3.04.
(b) The Indenture Trustee shall not remove any portion of the
Trust Estate that consists of money or is evidenced by an instrument,
certificate or other writing from the jurisdiction in which it was held, or to
which it is intended to be removed, as described in the Opinion of Counsel
delivered at the Closing Date pursuant to Section 2.09(b), or cause or permit
ownership or the pledge of any portion of the Trust Estate that consists of
book-entry securities to be recorded on the books of a Person located in a
different jurisdiction from the jurisdiction in which such ownership or pledge
was recorded at such time unless the Indenture Trustee shall have first
received an Opinion of Counsel (at the Issuer's expense) to the effect that the
lien and security interest created by this Indenture with respect to such
property will continue to be maintained after giving effect to such action or
actions.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
(a) This Indenture shall cease to be of further effect except as
to (i) rights of registration of transfer and exchange, (ii) substitution of
mutilated, destroyed, lost or stolen Bonds, (iii) the rights of Bondholders to
receive payments of principal thereof and interest thereon, (iv) the rights,
obligations and immunities of the Indenture Trustee and the Fiscal Agent
hereunder and (v) the rights of Bondholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee and payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments
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acknowledging satisfaction and discharge of this Indenture whenever the
following conditions shall have been satisfied:
(i) either
(1) all Bonds theretofore authenticated and
delivered (other than (i) Bonds which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 2.05, and (ii) Bonds for whose payment
money has theretofore been deposited in trust and thereafter
repaid to the Issuer, as provided in Section 3.03) have been
delivered to the Indenture Trustee for cancellation; or
(2) all Bonds not theretofore delivered to the
Indenture Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at the
Stated Maturity within one year,
and the Issuer, in the case of clauses (2)(A) or (2)(B) above, has
deposited or caused to be deposited with the Indenture Trustee, in
trust for such purpose, cash or government securities (as such term is
defined under Section 2(16) of the Investment Company Act of 1940, as
amended) sufficient to pay and discharge the entire indebtedness on
such Bonds not theretofore delivered to the Indenture Trustee for
cancellation, for principal and interest to the Maturity of the Bonds
and in the case of Bonds that were not paid at their Stated Maturity,
for all overdue principal and all interest payable on such Bonds to
the next succeeding Payment Date therefor; and
(ii) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(iii) the Issuer has delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel satisfactory in form
and substance to the Indenture Trustee each stating that all
conditions precedent herein providing for the satisfaction and
discharge of this Indenture have been complied with;
then this Indenture and the lien, rights and interests created hereby and
thereby shall cease to be of further effect, and the Indenture Trustee and each
co-trustee, if any, then acting as such hereunder shall, at the expense of the
Issuer, execute and deliver all such instruments as may be necessary to
acknowledge the satisfaction and discharge of this Indenture and shall pay, or
assign or transfer and deliver, to the Issuer or upon Issuer Order all cash,
securities and other property held by it as part of the Trust Estate remaining
after satisfaction of the conditions set forth in clauses (i), (ii) and (iii)
above.
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(b) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer under Section 6.07 and the obligations
of the Indenture Trustee to the Holders of Bonds under Section 4.02 shall
survive.
SECTION 4.02. APPLICATION OF TRUST MONEY.
All cash or government securities and proceeds therefrom deposited
with the Indenture Trustee pursuant to Sections 3.03 and 4.01 shall be held in
trust and applied by it, in accordance with the provisions of the Bonds and
this Indenture, to the payment, either directly or through any Paying Agent, as
the Indenture Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment such cash or government securities and
proceeds therefrom has been deposited with the Indenture Trustee.
ARTICLE V.
DEFAULTS AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Bonds issued
hereunder, shall have the meaning ascribed to the term in the Glossary attached
hereto as Annex I.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default occurs and is continuing, then and in
every such case the Indenture Trustee or the Holders of Bonds representing not
less than 25% of the principal balance of the Outstanding Bonds may declare the
Bonds to be immediately due and payable by a notice in writing to the Issuer
(and to the Indenture Trustee if given by Bondholders), and upon any such
declaration, the Bonds, in an amount equal to the principal balance of the
Outstanding Bonds, together with accrued and unpaid interest and any other
amounts due thereon to the date of such acceleration, shall become immediately
due and payable.
(b) At any time after such a declaration of acceleration of
Maturity of the Bonds pursuant to paragraph (a) of this Section 5.02 has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article provided, the
Holders of Bonds representing more than 50% of the principal balance of the
Outstanding Bonds, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) (A) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:
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(1) all payments of principal of, and
interest (including any accrued and unpaid Excess
Interest and interest accrued thereon) on, all Bonds
and all other amounts that would then be due
hereunder or upon all Bonds if the Event of Default
giving rise to such acceleration had not occurred;
and
(2) all unreimbursed Advances by the
Fiscal Agent, the Indenture Trustee and the Servicer
under the Servicing Agreement (together with Advance
Interest thereon) and all amounts due the Indenture
Trustee pursuant to Section 6.07(a) and all amounts
due the Servicer under the Servicing Agreement; and
(B) all Events of Default, other than the
nonpayment of the principal of Bonds that have become due
solely by such acceleration, have been cured or waived as
provided in Section 5.15; or
(ii) an election is made to act in accordance with the
provisions of Section 5.05 with respect to the Event of Default that
gave rise to such declaration.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY INDENTURE TRUSTEE.
Subject to the provisions of Section 3.01 and the following sentence,
if an Event of Default occurs and is continuing, the Indenture Trustee (or the
Servicer on its behalf) may in its discretion, subject to Section 5.05, proceed
to protect and enforce its rights and the rights of the Bondholders by any
Proceedings the Indenture Trustee (or the Servicer on its behalf) deems
appropriate to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or enforce any other proper remedy. Any
Proceedings brought by the Indenture Trustee (or the Servicer on its behalf) on
behalf of the Bondholders or any Bondholder against the Issuer shall be limited
to the preservation, enforcement and foreclosure of the liens, assignments,
rights and security interests under the Indenture and the Mortgages and the
other Loan Documents and no attachment, execution or other unit or process
shall be sought, issued or levied upon any assets, properties or funds of the
Issuer, other than the Trust Estate, except as otherwise expressly provided in
the Loan Documents. If there is a foreclosure of any such liens, assignments,
rights and security interests, by private power of sale or otherwise, no
judgment for any deficiency upon the indebtedness represented by the Bonds may
be sought or obtained by the Indenture Trustee or any Bondholder against the
Issuer, except as otherwise expressly provided in the Loan Documents. The
Indenture Trustee shall be entitled to recover the costs and expenses expended
by it pursuant to this Section 5.03, including reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and the Servicer
and their respective agents and counsel.
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In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Holders of the Bonds, and it shall not be necessary
to make any Holders of the Bonds parties to any such Proceedings.
SECTION 5.04. REMEDIES.
If an Event of Default shall have occurred and be continuing and the
Bonds have been declared due and payable and such declaration and its
consequences have not been rescinded and annulled, the Indenture Trustee (or
the Servicer on its behalf) may do one or more of the following:
(a) institute Proceedings for the collection of all
amounts then payable on the Bonds, or under this Indenture, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer moneys adjudged due, subject in all cases to the
provisions of Sections 3.01 and 5.03;
(b) subject to the rights of the Bondholders under this
Indenture, exercise such remedies under Section 6 of the Mortgages as
the Indenture Trustee deems advisable to protect and enforce its
rights against the Borrower and in and to the Mortgaged Property;
(c) take any actions pursuant to the Mortgages to cause
the foreclosure of one or more of the Mortgaged Properties, and effect
the sales of the related Foreclosed Properties called and conducted in
any manner permitted by law; and
(d) exercise any remedies of a secured party under the
Uniform Commercial Code and take any other appropriate action to
protect and enforce the rights and remedies of the Indenture Trustee
or the Holders of the Bonds hereunder.
SECTION 5.05. OPTIONAL PRESERVATION OF TRUST ESTATE.
If (i) an Event of Default shall have occurred and be continuing and
(ii) no Bonds have been declared due and payable or such declaration and its
consequences are to be annulled and rescinded pursuant to Section 5.02, the
Indenture Trustee may in conclusive reliance on the Servicer's determination
that it is in the best interests of such Holders, and upon request from the
Holders of more than 50% of the principal balance of the Outstanding Bonds
shall, elect (by giving written notice of such election to the Issuer) to
refrain from commencing foreclosure or other Proceedings to sell or liquidate
the Mortgaged Properties and retain the Trust Estate securing the Bonds intact,
collect or cause the collection of the proceeds thereof and make and apply all
payments and deposits and maintain all accounts in respect of such Bonds in
accordance with the provisions of Articles Two, Three and Eight. If the
Indenture Trustee is unable to give or is stayed from giving such notice to the
Issuer for any reason whatsoever, such election shall be effective as of the
time of such determination or request, as the case may be, notwithstanding any
failure to give such notice, and the Indenture Trustee shall give such notice
upon the
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removal or cure of such inability or stay (but shall have no obligation to
effect such removal or cure). Any such election may be rescinded with respect
to any portion of the Trust Estate securing the Bonds remaining at the time of
such rescission by written notice to the Indenture Trustee and the Issuer from
the Holders of more than 50% of the principal balance of the Outstanding Bonds.
SECTION 5.06. INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, composition or other
judicial Proceeding relative to the Issuer or any other obligor upon any of the
Bonds or the property of the Issuer or of such other obligor or their
creditors, the Indenture Trustee (irrespective of whether the Bonds shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any demand on the
Issuer for the payment of any overdue principal or interest) shall be entitled
and empowered, by intervention in such Proceeding or otherwise to:
(i) file and prove a claim for the whole amount of
principal and interest (including accrued and unpaid Excess Interest
and interest accrued thereon) owing and unpaid in respect of the Bonds
and file such other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, the Fiscal Agent
and the Servicer, and their respective agents and counsel, in each
case to the extent such amounts are otherwise payable under this
Indenture or the Servicing Agreement) and of the Bondholders allowed
in such Proceeding, and
(ii) collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, or sequestrator (or
other similar official) in any such Proceeding is hereby authorized by
each Bondholder to make such payments to the Indenture Trustee and, in
the event that the Indenture Trustee shall consent to the making of
such payments directly to the Bondholders, to pay to the Indenture
Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee, the
Fiscal Agent and the Servicer, and their respective agents and
counsel, in each case to the extent such amounts are otherwise payable
under this Indenture or the Servicing Agreement, and any other amounts
due the Indenture Trustee under Section 6.07 and due the Servicer
under Section 2.02 of the Servicing Agreement.
(b) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or accept or adopt on behalf of
any Bondholder any plan of reorganization, arrangement, adjustment or
composition affecting any of the Bonds or the rights of any Holder thereof, or
to authorize the Indenture Trustee to vote in respect of the claim of any
Bondholder in any such Proceeding.
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SECTION 5.07. INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF BONDS.
All rights of action and claims under this Indenture or any of the
Bonds may be prosecuted and enforced by the Indenture Trustee without the
possession of any of the Bonds or the production thereof in any Proceeding
relating thereto, and any such Proceeding instituted by the Indenture Trustee
or its designee shall be brought in the name of the Indenture Trustee as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of reasonable compensation, expenses, disbursements
or advances of the Indenture Trustee, the Fiscal Agent and the Servicer and
their respective agents and counsel, in each case to the extent such amounts
are otherwise payable under this Indenture or the Servicing Agreement, be for
the benefit of the Holders of the Bonds in accordance with their rights under
this Indenture.
SECTION 5.08. APPLICATION OF MONEY COLLECTED.
If the Bonds have been declared due and payable following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, any Liquidation Proceeds (net of Liquidation Expenses) or other money
collected by the Indenture Trustee with respect to such Bonds pursuant to this
Article or otherwise and any other monies that may then be held or thereafter
received by the Indenture Trustee as security for such Bonds shall be applied
in the following order, at the date or dates fixed by the Indenture Trustee
and, in case of the distribution of the entire amount due on account of
principal of, and interest (including accrued and unpaid Excess Interest and
interest accrued thereon) on, such Bonds, plus any Yield Maintenance Premium
due thereon, upon presentation and surrender thereof:
First: To pay the Indenture Trustee, all accrued but
unpaid Indenture Trustee Fees and fees payable to any co-trustee, and
to the Servicer, all accrued but unpaid Servicing Fees (in that order
of priority), and to the extent of any remaining Liquidation Proceeds
(which proceeds shall be applied to pay the foregoing fees only after
any other amounts collected by the Indenture Trustee have been
applied), any accrued and unpaid Default Servicing Fees with interest
thereon at the Advance Rate and Disposition Fees payable therefrom to
the Servicer pursuant to the Servicing Agreement;
Second: To pay (or reimburse the Indenture Trustee or the
Servicer, in that order of priority) any Trust Estate Expenses;
Third: To pay the amount necessary to reimburse the
Fiscal Agent, the Indenture Trustee and the Servicer (in that order of
priority) first, for any Property Protection Advances (and Advance
Interest thereon) and second, any P&I Advances (and Advance Interest
thereon), to the extent not previously reimbursed;
Fourth: To the payment of amounts then due and unpaid
upon the Class A Bonds for scheduled interest on the principal balance
of the Outstanding Class A Bonds to the date on which payment is made
at the Class A Interest Rate;
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Fifth: To the payment of the Class A Bonds, the
principal balance of the Outstanding Class A Bonds;
Sixth: To the payment of amounts then due and unpaid
upon the Class B Bonds for scheduled interest on the principal balance
of the Outstanding Class B Bonds to the date on which payment is made
at the Class B Interest Rate;
Seventh: To the payment of the Class B Bonds, the
principal balance of the Outstanding Class B Bonds;
Eighth: To the payment of amounts then due and unpaid
upon the Class C Bonds for scheduled interest on the principal balance
of the Outstanding Class C Bonds to the date on which payment is made
at the Class C Interest Rate;
Ninth: To the payment of the Class C Bonds, the
principal balance of the Outstanding Class C Bonds;
Tenth: To the payment of accrued and unpaid Excess
Interest and interest accrued thereon, sequentially to the Class A,
Class B and Class C Bonds until each such Class has been paid such
amounts in full, with interest accrued on Excess Interest on a Class
of Bonds payable prior to the accrued and unpaid Excess Interest on
such Class of Bonds;
Eleventh: To pay an amount equal to the Yield Maintenance
Premium (unless such Event of Default shall have been declared during
the Prepayment Window) first with respect to the Class A Bonds, then
with respect to the Class B Bonds, and then with respect to the Class
C Bonds, based on the amount of principal being applied on such Class
of Bonds to the extent such principal is received prior to the date
such principal otherwise was scheduled to be received;
Twelfth: To the payment of any unpaid Default Servicing
Fees (with interest thereon at the Advance Rate) due the Servicer; and
Thirteenth: To the payment of the remainder, if any, to the
Issuer.
SECTION 5.09. LIMITATION ON SUITS.
(a) No Holder of a Bond shall have any right to institute any
Proceedings, judicial or otherwise, with respect to this Indenture or the
Servicing Agreement, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless:
(i) such Holder has previously given written notice to
the Indenture Trustee of a continuing Event of Default;
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(ii) the Holders of Bonds representing not less than 25%
of the principal balance of the Outstanding Bonds shall have made
written request to the Indenture Trustee to institute Proceedings in
respect of such Event of Default in its own name as Indenture Trustee
hereunder;
(iii) such Holder or Holders have offered to the Indenture
Trustee indemnity acceptable to the Indenture Trustee in full against
the costs, expenses and liabilities to be incurred in compliance with
such request;
(iv) the Indenture Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to institute
any such Proceeding; and
(v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day period by
the Holders of Bonds representing more than 50% of the principal
balance of the Outstanding Bonds;
it being understood and intended that no one or more Holders of Bonds shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Bonds or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all the
Holders of Bonds.
(b) In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Holders of
Bonds, each representing less than 50% of the principal balance of the
Outstanding Bonds, the Indenture Trustee in its sole discretion may take such
action, if any, as otherwise permitted under this Indenture. In taking or
refraining from taking such action, the Indenture Trustee shall not be required
to take into account any such requests.
SECTION 5.10. UNCONDITIONAL RIGHTS OF BONDHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST.
Subject to the provisions in this Indenture (including Sections 3.01
and 5.03) limiting the right to recover amounts due on a Bond to recovery from
amounts in the Trust Estate, and subject to Section 5.09, the Holder of any
Bond shall have the right, to the extent permitted by applicable law, which
right is absolute and unconditional, to receive payment of principal of and
interest on such Bond as such principal and interest becomes due and payable
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder.
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SECTION 5.11. RESTORATION OF RIGHTS AND REMEDIES.
If the Indenture Trustee or any Bondholder has instituted any
Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Indenture Trustee or to such Bondholder, then and
in every such case the Issuer, the Indenture Trustee and the Bondholders shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee and the Bondholders shall continue as though
no such Proceeding had been instituted.
SECTION 5.12. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Indenture
Trustee or to the Bondholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 5.13. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Indenture Trustee or of any Holder of any
Bond to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Indenture Trustee or to the Bondholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Bondholders, as the case may be.
SECTION 5.14. CONTROL BY BONDHOLDERS.
The Holders of Bonds representing more than 50% of the principal
balance of the Outstanding Bonds on the applicable Record Date shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee or exercising any trust or power
conferred on the Indenture Trustee under this Indenture or any of the Loan
Documents; provided that:
(a) such direction shall not be in conflict with any rule
of law or with this Indenture; and
(b) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee which is not inconsistent with
such direction; provided, however, that, subject to Section 6.01, the
Indenture Trustee need not take any action which it determines might
involve it in liability or be unjustly prejudicial to the Bondholders
not consenting.
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SECTION 5.15. WAIVER OF PAST DEFAULTS.
(a) Subject to Section 5.02(b), the Holders of Bonds representing
more than 50% of the principal balance of the Outstanding Bonds on the
applicable Record Date may on behalf of the Holders of all the Bonds waive any
past Default hereunder and its consequences, except a Default:
(i) in the payment of any installment of principal of, or
interest (including accrued and unpaid Excess Interest and interest
accrued thereon) on, any Bonds; or
(ii) in respect of a covenant or provision hereof which
under Section 9.02 cannot be modified or amended without the consent
of the Holder of each Outstanding Bond affected.
(b) Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 5.16. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Bond by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Indenture Trustee for any
action taken, suffered or omitted by it as Indenture Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Indenture Trustee (or the Servicer on its behalf), to any
suit instituted by any Bondholder, or group of Bondholders, holding in the
aggregate Bonds representing more than 10% of the principal balance of the
Outstanding Bonds, or to any suit instituted by any Bondholder for the
enforcement of the payment of the principal of or the interest (including
accrued and unpaid Excess Interest and interest accrued thereon) due on any
Bond on or after the Stated Maturity thereof.
SECTION 5.17. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension of law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants in, or the performance of, this Indenture; and the Issuer (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to
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the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.18. RIGHTS UPON A NONRECOVERABLE ADVANCE DETERMINATION.
Notwithstanding anything herein to the contrary, if in connection with
any Event of Default the Servicer has recommended the commencement of
foreclosure or any Proceedings or actions which relate to the realization
against the Mortgaged Properties, or the Servicer has recommended the sale or
liquidation of any Foreclosed Property, and, in either case, the requisite
Bondholders have not approved such action pursuant to this Indenture, the
Servicer shall be entitled to commence such foreclosure, Proceedings or actions
and sell or liquidate such Foreclosed Property, as the case may be, in
accordance with Accepted Servicing Practices, upon any determination by the
Servicer or the Indenture Trustee that any previously made and unreimbursed
Advances with Advance Interest thereon constitute Nonrecoverable Advances.
SECTION 5.19. ACTION ON BONDS.
The Indenture Trustee's right to seek and recover judgment under this
Indenture shall not be affected by the seeking, obtaining or application of any
other relief under or with respect to this Indenture. Neither the lien of this
Indenture nor any rights or remedies of the Indenture Trustee or the Holders of
Bonds shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Issuer or by the levy of any execution under such judgment
upon any portion of the Trust Estate.
SECTION 5.20. NO RECOURSE TO OTHER ASSETS OF THE ISSUER.
The Trust Estate Granted to the Indenture Trustee as security for the
Bonds serves as security only for the Bonds. Except as expressly provided in
the Loan Documents, Holders of the Bonds shall have no recourse against any
other assets of the Issuer and no judgment against the Issuer for any amount
due with respect to the Bonds may be enforced against any other assets of the
Issuer, nor may any prejudgment lien or other attachment be sought against any
other assets of the Issuer.
SECTION 5.21. FRANCHISE AGREEMENTS, ALLOCATION AFFIDAVITS, ETC..
On the Closing Date, the Indenture Trustee and/or the Servicer on
behalf of the Indenture Trustee shall be authorized to enter into one or more
comfort letters, letter agreements or similar agreements substantially in the
form attached as Exhibit J to this Indenture (each, a "Comfort Letter") with
the franchisors under Franchise Agreements relating to the Mortgaged Properties
for the purpose of establishing certain procedures in the event a franchisee
has been terminated due to a default under a Franchise Agreement.
Notwithstanding any rights the Indenture Trustee and/or the Servicer may have
under a Comfort Letter with respect to a Franchise Agreement relating to a
Mortgaged Property, so long as no Event of Default has occurred and is
continuing,
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neither the Indenture Trustee nor the Servicer shall exercise such rights and
shall subordinate and/or assign any such rights to the Issuer.
The Indenture Trustee shall be authorized to enter into an allocation
affidavit substantially in the form of Exhibit K to this Indenture with respect
to the Mortgaged Property located in Georgia.
ARTICLE VI.
THE INDENTURE TRUSTEE
SECTION 6.01. DUTIES OF INDENTURE TRUSTEE.
(a) Upon any Default, the Indenture Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(b) Subject to Section 6.01(a):
(i) The Indenture Trustee need perform only those duties
that are specifically set forth in this Indenture and no others and no
implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) In the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture. The Indenture
Trustee shall, however, examine such certificates and opinions to
determine whether they conform on their face to the requirements of
this Indenture.
(c) The Indenture Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
subsection (b) of this Section 6.01;
(ii) The Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless
it is proved that the Indenture Trustee was negligent in ascertaining
the pertinent facts; and
(iii) The Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
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Section 5.14 or exercising any trust or power conferred upon the
Indenture Trustee under this Indenture.
(d) For all purposes under this Indenture, the Indenture Trustee
shall not be deemed to have notice or knowledge of any Default (other than an
Issuer Payment Default) unless a Responsible Officer of the Indenture Trustee
has actual knowledge thereof or unless written notice of any event which is in
fact such an Event of Default or Default is received by a Responsible Officer
of the Indenture Trustee at the Corporate Trust Office, and such notice
references the Bonds generally, the Issuer, the Trust Estate or this Indenture.
(e) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. In determining that such
repayment or indemnity is not reasonably assured to it, the Indenture Trustee
must consider not only the likelihood of repayment or indemnity by or on behalf
of the Issuer but also the likelihood of repayment or indemnity from amounts
payable to it from the Trust Estate pursuant to Sections 6.07 and 8.02(c).
(f) Every provision of this Indenture that in any way relates to
the Indenture Trustee is subject to the provisions of this Section.
(g) Notwithstanding any extinguishment of all right, title and
interest of the Issuer in and to the Trust Estate following an Event of Default
and a consequent declaration of acceleration of the Maturity of the Bonds,
whether such extinguishment occurs through foreclosures of the Mortgages, the
acquisition of the Mortgaged Properties by the Indenture Trustee or otherwise,
the rights, powers and duties of the Indenture Trustee with respect to the
Trust Estate (or the proceeds thereof) and the Bondholders and the rights of
Bondholders shall continue to be governed by the terms of this Indenture.
SECTION 6.02. NOTICE OF DEFAULT.
Within 90 days after the occurrence of any Default known to the
Indenture Trustee, the Indenture Trustee shall transmit by mail to all Holders
of Bonds notice of each such Default, unless such Default shall have been cured
or waived; provided, however, that, except in the case of an Issuer Payment
Default, the Indenture Trustee shall be protected in withholding such notice if
and so long as the Responsible Officers of the Indenture Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of the Bonds. Concurrently with the mailing of any such notice to the
Holders of the Bonds, the Indenture Trustee shall transmit by mail a copy of
such notice to the Rating Agency.
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SECTION 6.03. RIGHTS OF INDENTURE TRUSTEE.
(a) The Indenture Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Indenture Trustee need not investigate any fact or matter stated in any such
document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel (at the Issuer's
expense) reasonably satisfactory in form and substance to the Indenture
Trustee. The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on any such Certificate or Opinion.
(c) The Indenture Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF BONDS.
The recitals contained herein and in the Bonds, except the
certificates of authentication on the Bonds, shall be taken as the statements
of the Issuer, and the Indenture Trustee assumes no responsibility for their
correctness. The Indenture Trustee makes no representations with respect to
the Trust Estate or as to the validity or sufficiency of this Indenture or of
the Bonds. The Indenture Trustee shall not be accountable for the use or
application by the Issuer of the Bonds or the proceeds thereof or any money
paid to the Issuer or upon Issuer Order pursuant to the provisions hereof.
SECTION 6.05. MAY HOLD BONDS.
The Indenture Trustee, the Fiscal Agent, any Agent, or any other agent
of the Issuer, in its individual or any other capacity, may become the owner or
pledgee of Bonds and may otherwise deal with the Issuer or any Affiliate of the
Issuer with the same rights it would have if it were not Indenture Trustee, the
Fiscal Agent, any Agent or such other agent.
SECTION 6.06. MONEY HELD IN TRUST.
Money held by the Indenture Trustee in trust hereunder need not be
segregated from other funds except to the extent required by this Indenture or
by law. The Indenture Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Issuer or
provided herein and except to the extent of income or other gain on investments
that are obligations of the Indenture Trustee, in its commercial capacity, and
income or other gain actually received by the Indenture Trustee on investments
that are obligations of others and that are not, as expressly provided herein,
for the account of the Indenture Trustee.
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SECTION 6.07. COMPENSATION, REIMBURSEMENT AND INDEMNIFICATION.
(a) The Issuer agrees:
(i) to pay to the Indenture Trustee the Indenture Trustee
Fee on a monthly basis, which Indenture Trustee Fee shall be payable
from amounts deposited in the Central Account pursuant to the
Servicing Agreement, for all services rendered by the Indenture
Trustee hereunder;
(ii) to pay to any co-trustee appointed hereunder its
reasonable and customary fee not to exceed the Indenture Trustee Fee,
which fee shall be payable from amounts deposited in the Central
Account pursuant to the Servicing Agreement;
(iii) except as otherwise expressly provided herein, to
reimburse the Indenture Trustee upon its request for all reasonable
expenses and disbursements incurred or made by the Indenture Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the negligence or bad faith of the Indenture
Trustee; and
(iv) to indemnify the Indenture Trustee, its directors,
officers, employees, agents and "control" persons within the meaning
of the 1933 Act for, and to hold them harmless against, any loss,
liability or expense (including reasonable attorney fees) incurred
without negligence or bad faith on their part, arising out of, or in
connection with, the acceptance or administration of this trust
(including action taken by the Indenture Trustee at the direction of
any Bondholders pursuant to this Indenture, at the direction of the
Servicer pursuant to Section 2.05(a) of the Servicing Agreement and
pursuant to the provisions of any Loan Document) including the costs
and expenses of defending themselves against any claim in connection
with the exercise or performance of any of their powers or duties
hereunder, provided that:
(1) with respect to any such claim, the Indenture
Trustee shall have given the Issuer written notice thereof
promptly after the Indenture Trustee shall have knowledge
thereof; provided that failure to give such notice shall not
affect the Indenture Trustee's right to indemnification
hereunder, unless the Issuer's defense of such claim is
materially prejudiced thereby;
(2) while maintaining absolute control over its
own defense, the Indenture Trustee shall cooperate and consult
fully with the Issuer in preparing such defense; and
(3) notwithstanding anything to the contrary in
this Section 6.07(a)(iv), the Issuer shall not be liable for
settlement of any such claim by the Indenture Trustee entered
into without the prior consent of the Issuer.
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(b) To the extent the fees and expenses itemized in Section
6.07(a) hereof are not otherwise paid, the Indenture Trustee may pay such fees
and expenses pursuant to Section 8.02(c)(ii) hereof from moneys on deposit in
the Collateral Proceeds Account.
(c) As security for the payment obligations of the Issuer pursuant
to the foregoing provisions of this Section 6.07, the Issuer hereby Grants to
the Indenture Trustee a lien ranking at all times senior to the lien of the
Bonds with respect to which any claim of the Indenture Trustee under this
Section arose and senior to all other liens, if any, upon all property and
funds held or collected as part of the Trust Estate for such Bonds by the
Indenture Trustee in its capacity as such. The Indenture Trustee shall not (i)
exercise or enforce such senior lien in any manner, or (ii) institute any
Proceeding against the Issuer for any payments, reimbursements, or
indemnifications to the Indenture Trustee or to enforce such lien, in either
case unless (i) the Bonds have been declared due and payable following an Event
of Default pursuant to Section 5.02, (ii) such acceleration of Maturity and its
consequences have not been rescinded and annulled, and (iii) moneys collected
by the Indenture Trustee are being applied in accordance with Section 5.08.
(d) Subject to the last sentence of Section 6.07(c), nothing in
this Section 6.07 shall be construed to limit (except as otherwise expressly
provided in subsection (c) of this Section 6.07) the exercise by the Indenture
Trustee of any right or remedy permitted under the Indenture or otherwise in
the event of the Issuer's failure to pay the amounts due the Indenture Trustee
pursuant to this Section 6.07.
SECTION 6.08. ELIGIBILITY: DISQUALIFICATION.
This Indenture shall always have an Indenture Trustee who (i) shall be
a corporation, national bank or national banking association organized and
doing business under the laws of the United States or of any state or territory
or the District of Columbia which (A) is authorized under such law to exercise
corporate trust powers and (B) is subject to supervision or examination by
federal, state, territorial or District of Columbia authority and (ii) shall
not be an affiliate of the Issuer. The Indenture Trustee shall always have a
combined capital and surplus as stated in Section 6.09.
SECTION 6.09. INDENTURE TRUSTEE'S CAPITAL AND SURPLUS.
The Indenture Trustee shall at all times have a combined capital and
surplus of at least $50,000,000 or shall be a member of a bank holding company
system, the aggregate combined capital and surplus of which is at least
$50,000,000; provided, however, that the Indenture Trustee's separate capital
and surplus shall at all times be at least $150,000. If at any time the
Indenture Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.09, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
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SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Indenture
Trustee under Section 6.11.
(b) The Indenture Trustee may resign at any time by giving written
notice thereof to the Issuer and the Servicer. If an instrument of acceptance
by a successor Indenture Trustee shall not have been delivered to the Indenture
Trustee within 30 days after the giving of such notice of resignation, the
resigning Indenture Trustee may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee.
(c) The Indenture Trustee may be removed at any time by Act of the
Holders representing more than 50% of the principal balance of the Outstanding
Bonds delivered to the Indenture Trustee and to the Issuer.
(d) If at any time the Indenture Trustee shall cease to be
eligible under Section 6.09 or shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Indenture Trustee or of
its property shall be appointed, or any public officer shall take charge or
control of the Indenture Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such case, the
Issuer by an Issuer Order may remove the Indenture Trustee, and the Issuer
shall join with the Indenture Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint a
successor Indenture Trustee and to vest in such successor Indenture Trustee any
property, title, right or power deemed necessary or desirable, subject to the
other provisions of this Indenture; provided, however, if the Issuer does not
join in such appointment within fifteen (15) days after the receipt by it of a
request to do so, or in case an event of default has occurred and is
continuing, the Indenture Trustee may petition a court of competent
jurisdiction to make such appointment.
(e) If the Indenture Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Indenture
Trustee for any cause, the Issuer, by an Issuer Order shall promptly appoint a
successor Indenture Trustee. If within one year after such resignation,
removal or incapability or the occurrence of such vacancy a successor Indenture
Trustee shall be appointed by Act of the Holders of Bonds representing more
than 50% of the principal balance of the Outstanding Bonds delivered to the
Issuer and the retiring Indenture Trustee, the successor Indenture Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Indenture Trustee and supersede the successor Indenture Trustee
appointed by the Issuer. If no successor Indenture Trustee shall have been so
appointed by the Issuer or Bondholders and shall have accepted appointment in
the matter hereinafter provided, any Bondholder who has been a bona fide Holder
of a Bond for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
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(f) The Issuer shall give notice of each resignation and each
removal of the Indenture Trustee and each appointment of a successor Indenture
Trustee to the Holders of Bonds and the Servicer. Each notice shall include
the name of the successor Indenture Trustee and the address of its Corporate
Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Indenture Trustee and successor Fiscal Agent
appointed hereunder shall execute, acknowledge and deliver to the Issuer and
the retiring Indenture Trustee and retiring Fiscal Agent, respectively, an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Indenture Trustee and retiring Fiscal Agent, respectively,
shall become effective and such successor Indenture Trustee and successor
Fiscal Agent, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Indenture
Trustee and retiring Fiscal Agent, respectively. Notwithstanding the
foregoing, on request of the Issuer or the successor Indenture Trustee, such
retiring Indenture Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Indenture Trustee all the
rights, powers and trusts of the retiring Indenture Trustee, and shall duly
assign, transfer and deliver to such successor Indenture Trustee all property
and money held by such retiring Indenture Trustee hereunder subject
nevertheless to its lien, if any, provided for in Section 6.07. Upon request
of any such successor Indenture Trustee, the Issuer shall execute and deliver
any and all instruments for more fully and certainly vesting in and confirming
to such successor Indenture Trustee all such rights, powers and trusts.
(b) No successor Indenture Trustee shall accept its appointment
unless at the time of such acceptance such successor Indenture Trustee shall be
qualified and eligible under this Article.
SECTION 6.12. MERGER OR CONSOLIDATION OF THE INDENTURE TRUSTEE AND
THE FISCAL AGENT.
Any Person into which the Indenture Trustee or the Fiscal Agent, as
the case may be, may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Indenture Trustee or the Fiscal Agent shall be a
party, or any Person succeeding to the business of the Indenture Trustee or the
Fiscal Agent, shall be the successor of the Indenture Trustee or the Fiscal
Agent, respectively, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided that with respect to the Indenture
Trustee such Person shall be eligible under the provisions of Section 6.08 and
Section 6.09.
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SECTION 6.13. CO-TRUSTEES AND SEPARATE INDENTURE TRUSTEES.
(a) At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Trust Estate may at the
time be located, the Issuer and the Indenture Trustee shall have power to
appoint one or more Persons to act as co-trustee, jointly with the Indenture
Trustee, of all or any part of the Trust Estate.
(b) The Issuer shall for such purpose join with the Indenture
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to appoint such co-trustee. If the Issuer does
not join in such appointment within 15 days after the receipt by it of a
request to do so, or in case an Event of Default has occurred and is
continuing, the Indenture Trustee alone shall have power to make such
appointment. All fees and expenses of any co-trustee or separate trustee shall
be payable by the Issuer.
(c) Should any written instrument from the Issuer be required by
any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Issuer.
(d) Every co-trustee shall, to the extent permitted by law, but to
such extent only, be appointed subject to the following terms:
(i) The Bonds shall be authenticated and delivered and
all rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Indenture Trustee
hereunder, shall be exercised, solely by the Indenture Trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Indenture Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such
co-trustee jointly, as shall be provided in the instrument appointing
such co-trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the
Indenture Trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties and obligations shall
be exercised and performed by such co-trustee.
(iii) The Indenture Trustee at any time, by an instrument
in writing executed by it, with the concurrence of the Issuer
evidenced by an Issuer Order, may accept the resignation of or remove
any co-trustee appointed under this Section, and, in case an Event of
Default has occurred and is continuing, the Indenture Trustee shall
have power to accept the resignation of, or remove, any such
co-trustee without the concurrence of the Issuer. Upon the written
request of the Indenture Trustee, the Issuer shall join with the
Indenture Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor
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to any co-trustee so resigned or removed may be appointed in the
manner provided in this Section.
(iv) No co-trustee hereunder shall be personally liable by
reason of any act or omission of the Indenture Trustee, or any other
such trustee hereunder. The Indenture Trustee shall not be liable by
reason of any act or omission of a co-trustee to the extent such
co-trustee is appointed in good faith and with due care.
(v) Except in the case of any conflicts between Classes,
any Act of Bondholders delivered to the Indenture Trustee shall be
deemed to have been delivered to each such co-trustee.
(vi) Any co-trustee must meet the eligibility requirements
of Section 6.08 hereof.
SECTION 6.14. SERVICING AGREEMENT AND CERTAIN DOCUMENTS.
(a) Each of the Indenture Trustee and the Fiscal Agent is hereby
authorized to execute and shall execute (i) the Servicing Agreement to provide
for the servicing of the Secured Obligations and such other matters provided
for therein and (ii) such other documents or agreements contemplated hereby and
by the Servicing Agreement; and the Indenture Trustee is hereby authorized to
execute and shall execute (i) the Subordination Agreement to provide for
certain matters relating to the Leases and the Lessee and such other matters
provided for therein and (ii) such other documents or agreements contemplated
by the Subordination Agreement. Each of the Indenture Trustee and Fiscal Agent
shall perform its duties and satisfy its obligations under the Servicing
Agreement, the Subordination Agreement (if applicable) and such other
documents, including its obligations to make Advances in certain circumstances
pursuant to Section 4.03 of the Servicing Agreement. The Indenture Trustee
shall take or cause to be taken such action as may be appropriate to enforce
its rights under the Servicing Agreement, the Subordination Agreement and such
other documents or agreements referred to above.
(b) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, the rights and powers of the Servicer with
respect thereto shall vest in the Indenture Trustee, and the Indenture Trustee
shall be the successor in all respects to the Servicer in its capacity as
Servicer under the Servicing Agreement until the Indenture Trustee shall have
appointed, with the consent of the Rating Agency, a new servicer to serve as
successor to the Servicer under the Servicing Agreement. Upon appointment of a
successor Servicer, the Indenture Trustee, the Fiscal Agent and such Servicer
shall enter into a new servicing agreement in a form substantially similar to
the Servicing Agreement. In connection with any such appointment, the
Indenture Trustee may make such arrangements for the compensation of such
successor as it and such successor shall agree, but in no event shall such
compensation of the successor Servicer (including the Indenture Trustee) be in
excess of that payable to the original Servicer under the Servicing Agreement
without confirmation from the Rating Agency that such
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compensation will not cause a qualification, withdrawal or downgrading of the
ratings then maintained by the Rating Agency with respect to the Bonds.
(c) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, the Indenture Trustee shall promptly
notify the Rating Agency. As soon as any successor Servicer is appointed, the
Indenture Trustee shall notify the Rating Agency, specifying in such notice the
name and address of such successor Servicer.
SECTION 6.15 REVIEW OF MORTGAGE FILES.
By execution and delivery of this Indenture, the Indenture Trustee
acknowledges receipt of the Mortgage Files in good faith and without actual
notice or knowledge of any adverse claim pertaining to the Mortgaged
Properties. The Indenture Trustee agrees, for the benefit of the Holders of
the Bonds, to review the Mortgage Files within 90 days after the Closing Date.
The Indenture Trustee's review shall be limited to a determination that all
documents referred to in the definition of the term Mortgage Files have been
delivered with respect to each such Mortgaged Property, that all such documents
have been executed, and that all such documents relate to the Mortgaged
Properties. In performing such review the Indenture Trustee may rely upon the
purported genuineness and due execution of any such document and on the
purported genuineness of any signature thereon. If the Indenture Trustee
discovers any defect or omission in the Mortgage Files or that any document
required to be delivered to it has not been delivered or that any document so
delivered does not relate to any of the Mortgaged Properties, it shall promptly
notify in writing the Issuer and the Servicer of such defect, omission or
error, and the Issuer shall cure or correct such defect, omission or error
within 90 days of receipt of such written notice.
ARTICLE VII.
BONDHOLDERS' LISTS AND REPORTS
SECTION 7.01. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND
ADDRESSES OF BONDHOLDERS.
(a) Upon the reasonable request of the Indenture Trustee, the
Issuer shall furnish or cause to be furnished to the Indenture Trustee a list,
in such form as the Indenture Trustee may reasonably require, of the names and
addresses of the Holders of Bonds as of a date not more than 10 days prior to
the time such list is furnished; provided, however, that so long as the
Indenture Trustee is the Bond Registrar, no such list shall be required to be
furnished.
(b) In addition to furnishing to the Indenture Trustee the
Bondholder lists, if any, required under subsection (a), the Issuer shall also
furnish all Bondholder lists, if any, required under Section 3.03 at the times
required by said Section 3.03.
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SECTION 7.02. PRESERVATION OF INFORMATION: COMMUNICATIONS TO
BONDHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Holders of Bonds
contained in the most recent list, if any, furnished to the Indenture Trustee
as provided in Section 7.01 and the names and addresses of the Holders of Bonds
received by the Indenture Trustee in its capacity as Bond Registrar. The
Indenture Trustee may destroy any list furnished to it as provided in Section
7.01 upon receipt of a new list so furnished.
(b) Three or more Bondholders (each of whom has owned a Bond for
at least six months) may, by written request to the Indenture Trustee, obtain
access to the list of all Bondholders maintained by the Indenture Trustee for
the purpose of communicating with other Bondholders with respect to their
rights under the Indenture. The Indenture Trustee may elect not to afford the
requesting Bondholders access to the list of Bondholders if it agrees to mail
the desired communication or proxy, on behalf of the requesting Bondholders, to
all Bondholders.
SECTION 7.03. REPORTS BY INDENTURE TRUSTEE.
Within a reasonable time after the first of each year after the
issuance of the Bonds the Indenture Trustee shall mail to all Holders a brief
report dated as of such date that, to the extent not set forth in the Payment
Date Statement pursuant to Section 2.06(e) or in the statement pursuant to
Section 2.06(h), sets forth the information required to be reported in Form
1099. In addition, the Indenture Trustee shall furnish to any Bondholder;
during the term of the Indenture, such information requested by the Bondholder
for purposes of preparing its tax returns or any other regulatory filings or
reports to the extent such information is in the possession of the Indenture
Trustee or is producible without undue effort or expense; provided, that the
Indenture Trustee shall be entitled to be reimbursed by such Bondholder for the
Indenture Trustee's actual expenses incurred in providing such information if
such information is not producible in the ordinary course of the Indenture
Trustee's business.
SECTION 7.04. REPORTS BY ISSUER.
For so long as the Bonds constitute "restricted securities" within the
meaning of Rule 144(a)(3) under the 1933 Act, the Issuer, upon the request of
any Bondholder, shall provide, or cause to be provided to, such Bondholder the
information required to be delivered pursuant to Rule 144A(d)(4) under the 1933
Act to permit resales of the Bonds in transactions meeting the requirements of
Rule 144A, as determined in the Issuer's sole discretion.
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ARTICLE VIII.
ACCOUNTS, PAYMENTS OF INTEREST AND
PRINCIPAL, AND RELEASES
SECTION 8.01. COLLECTION OF MONEYS.
(a) Except as otherwise expressly provided herein, the Indenture
Trustee may demand payment or delivery of, and shall receive and collect,
directly and without intervention or assistance of any intermediary, all money
and other property payable to or receivable by the Indenture Trustee pursuant
to this Indenture. The Indenture Trustee shall hold all such money and
property received by it as part of the Trust Estate and shall apply it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if a default occurs in the making of any payment or performance
required under the Servicing Agreement, any Required Insurance Policy or any
Loan Document, the Indenture Trustee may, and upon the request of the Holders
of Bonds representing more than 50% of the principal balance of the Outstanding
Bonds shall, take such action as may be appropriate to enforce such payment or
performance including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim
a Default or Event of Default under this Indenture and to proceed thereafter as
provided in Article V.
SECTION 8.02. COLLATERAL PROCEEDS ACCOUNT.
(a) On or before the Closing Date, the Indenture Trustee shall
open at the Corporate Trust Office one or more segregated accounts, each of
which must be an Eligible Account, and must be maintained in the name of
"LaSalle National Bank, as Indenture Trustee for Holders of EQI Financing
Partnership I, L.P., Commercial Mortgage Bonds, Series 1997-1 - Collateral
Proceeds Account." The Indenture Trustee shall promptly deposit in the
Collateral Proceeds Account (i) all Remittances received by it from the
Servicer pursuant to the Servicing Agreement, (ii) any P&I Advances paid
pursuant to the Servicing Agreement, (iii) all Prepayments and any related
Yield Maintenance Premiums thereon received from or on behalf of the Issuer,
and (iv) all other amounts received for deposit in the Collateral Proceeds
Account. All amounts that are deposited from time to time in the Collateral
Proceeds Account, and all Permitted Investments, if any, made with such moneys
shall be held by the Indenture Trustee in the Collateral Proceeds Account as
part of the Trust Estate as herein provided, subject to withdrawal by the
Indenture Trustee for the purposes set forth in subsections (c) and (d) of this
Section 8.02. All funds withdrawn from the Collateral Proceeds Account
pursuant to subsection (c) of this Section 8.02 for the purpose of making
payments to the Holders of Bonds shall be applied in accordance with Section
3.03.
(b) Amounts in the Collateral Proceeds Account may be invested
and reinvested by the Indenture Trustee in one or more Permitted Investments as
the Indenture Trustee may determine. Any and all income or other gain from
such investments shall be retained by the Indenture Trustee as additional
compensation. The Indenture Trustee shall not in any way be
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held liable by reason of any insufficiency in the Collateral Proceeds Account
resulting from any loss on any Permitted Investments other than any loss
resulting from the negligence or intentional misconduct by the Indenture
Trustee.
(c) Unless the Bonds have been declared due and payable pursuant
to Section 5.02 and moneys collected by the Indenture Trustee are being applied
in accordance with Section 5.08, on each Payment Date the Indenture Trustee
shall withdraw from the Collateral Proceeds Account, in the amounts required,
for application as follows:
(i) first, the amount necessary to pay all accrued but
unpaid Indenture Trustee Fees (and any fees payable to any co-trustee
appointed hereunder) and any accrued but unpaid Servicing Fees (in
that order of priority);
(ii) second, the amount necessary to pay (or reimburse the
Indenture Trustee or the Servicer, in that order of priority) any
Trust Estate Expenses;
(iii) third, the amount necessary to reimburse the Fiscal
Agent, the Indenture Trustee and the Servicer (in that order of
priority) for first, any Property Protection Advances (and Advance
Interest thereon) and second, any P&I Advances (and Advance Interest
thereon), previously made, to the extent not previously reimbursed,
and either shall retain or remit to the Fiscal Agent or the Servicer
such amounts as appropriate;
(iv) fourth, the amount necessary to pay Required Debt
Service Payments on the Bonds, to be paid as provided in Section 2.01;
(v) fifth, the amount necessary to pay Yield Maintenance
Premiums payable with respect to such Payment Date, to be paid on the
Bonds as provided in Section 2.01(e);
(vi) sixth, the amount necessary to pay any Prepayments
(including Excess Principal Payments) made with respect to such
Payment Date, to be paid as provided in Section 2.01;
(vii) seventh, the amount necessary to pay accrued and
unpaid Excess Interest on the Bonds, and interest accrued on such
Excess Interest, to the extent payable on the Bonds, to be paid as
provided in Section 2.01; and
(viii) eighth, the amount necessary to pay accrued but
unpaid Default Servicing Fees (with interest thereon at the Advance
Rate).
Each of the foregoing amounts shall be the amount set forth in the applicable
Payment Date Statement.
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(d) On each Special Payment Date, the Indenture Trustee shall
withdraw from the Collateral Proceeds Account all amounts deposited in the
Collateral Proceeds Account in connection with any Prepayments to be made on
such Special Payment Date and shall apply such amounts (i) first, to pay all
items set forth in clauses (i) through (iii) of Section 8.02(c); (ii) second,
to pay all accrued and unpaid interest with respect to the Prepayment, to be
paid as provided in Section 2.01; and (iii) third, to pay the Prepayment made
with respect to such Special Payment Date, to be paid as provided in Section
2.01(e).
(e) On or after each Payment Date, so long as the Indenture
Trustee shall have prepared a Payment Date Statement in respect of such Payment
Date and shall have made the payments required pursuant to Section 8.02(c) and
(d) and required to be made as indicated in such Payment Date Statement, any
amounts remaining in the Collateral Proceeds Account (other than Prepayments
(and related accrued interest) deposited therein and payable on a subsequent
Payment Date and any income or other gain from amounts in the Collateral
Proceeds Account invested in Permitted Investments) shall be withdrawn from the
Collateral Proceeds Account by the Indenture Trustee and remitted to the
Servicer for deposit in the Central Account for application in accordance with
the Servicing Agreement.
SECTION 8.03. GENERAL PROVISIONS REGARDING THE COLLATERAL
PROCEEDS ACCOUNT.
(a) The Collateral Proceeds Account shall relate solely to the
Bonds and to the Mortgaged Properties, Permitted Investments and other property
securing the Bonds. Funds and other property in the Collateral Proceeds
Account shall not be commingled with any other moneys or property of the Issuer
or any Affiliate thereof. Notwithstanding the foregoing, the Indenture Trustee
may hold any funds or other property received or held by it as part of the
Collateral Proceeds Account in collective accounts maintained by it in the
normal course of its business and containing funds or property held by it for
other Persons (which may include the Issuer or an Affiliate), provided that
such accounts are under the sole control of the Indenture Trustee and the
Indenture Trustee maintains adequate records indicating the ownership of all
such funds or property and the portions thereof held for credit to the
Collateral Proceeds Account.
(b) If any amounts are needed for disbursement from the Collateral
Proceeds Account and sufficient uninvested funds are not available therein to
make such disbursement, the Indenture Trustee shall cause to be sold or
otherwise converted to cash a sufficient amount of the investments in the
Collateral Proceeds Account.
(c) The Indenture Trustee shall, at all times while any Bonds are
Outstanding, maintain in its possession, or in the possession of an agent whose
actions with respect to such items are under the sole control of the Indenture
Trustee, all certificates or other instruments, if any, evidencing any
investment of funds in the Collateral Proceeds Account. The Indenture Trustee
shall relinquish possession of such items, or direct its agent to do so, only
for purposes of collecting the final payment receivable on such investment or
certificate or, in connection with
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the sale of any investment held in the Collateral Proceeds Account, against
delivery of the amount receivable in connection with any sale.
SECTION 8.04. CENTRAL ACCOUNT
(a) On or before each Payment Date occurring in a month in which
Percentage Rent is due under the Leases, the Issuer shall deposit, or cause to
be deposited, an amount equal to the FF&E Quarterly Installment into the
Central Account for allocation by the Servicer pursuant to the Servicing
Agreement to the FF&E Reserve Sub-Account.
(b) The Issuer shall cause the Lessee to deposit all Rents due and
owing after the Closing Date into the Central Account to be allocated by the
Servicer in accordance with the Servicing Agreement.
(c) The Issuer may direct the Servicer to invest and reinvest the
funds in the Central Account in one or more Permitted Investments in such
manner as the Issuer shall direct in writing from time to time, or if the
Issuer fails to give any such directions or upon an Event of Default that is
continuing, as the Servicer may determine pursuant to the Servicing Agreement.
Earnings on Permitted Investments of amounts in the Central Account shall be
applied or disbursed in accordance with the Servicing Agreement.
SECTION 8.05. REPORTS BY INDENTURE TRUSTEE TO BONDHOLDERS;
ACCESS TO CERTAIN INFORMATION.
(a) On each Payment Date and Special Payment Date, the Indenture
Trustee shall deliver the Payment Date Statement and Special Payment Date
Statement, respectively, in accordance with Section 2.06(e) and Section
2.06(f). Any Bondholder that does not receive information through DTC or a
Participant may request that Payment Date Statements, Special Payment Date
Statements and other Indenture Trustee reports required to be delivered under
this Indenture be mailed directly to it by written request to the Indenture
Trustee (accompanied by verification of such Bondholder's ownership interest)
at the Indenture Trustee's Corporate Trust Office.
(b) The Indenture Trustee shall make available at its Corporate
Trust Office, during normal business hours, for review by any Bondholder or any
person identified by the Issuer or a Bondholder to the Indenture Trustee as a
prospective Bondholder, originals or copies of the following items: (a) the
Indenture and any amendments thereto, (b) all Payment Date Statements and
Special Payment Date Statements delivered since the Closing Date, (c) any
Officers' Certificates and any Officers' Certificate of the Servicer delivered
to the Indenture Trustee since the Closing Date as described in the Indenture,
(d) any Accountants' reports delivered to the Indenture Trustee since the
Closing Date as required under the Servicing Agreement, (e) the most recent
property inspection report prepared by or on behalf of the Servicer in respect
of each Mortgaged Property and delivered to the Indenture Trustee, (f) the most
recent annual operating statement, if any, collected by or on behalf of the
Servicer and delivered to the
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Indenture Trustee with respect to each Mortgaged Property, (g) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer and delivered to the Indenture Trustee, and (h) any and
all Officers' Certificates of the Servicer and other evidence delivered to the
Indenture Trustee to support the Servicer's determination that any Advance was
not or, if made, would not be recoverable. Copies of any and all of the
foregoing items will be available from the Indenture Trustee upon request;
however, the Indenture Trustee will be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing such copies.
SECTION 8.06. RELEASE OF TRUST ESTATE.
(a) The Indenture Trustee may, and when required by the provisions
of this Indenture shall, execute such instruments or powers of attorney as are
prepared and delivered to it by the Servicer to release property from the lien
of this Indenture and the other Loan Documents, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances which are
not inconsistent with the provisions of this Indenture. No party relying upon
an instrument executed by the Indenture Trustee as provided in this Article
VIII shall be bound to ascertain the Indenture Trustee's authority, inquire
into the satisfaction of any conditions precedent or see to the application of
any moneys.
(b) The Indenture Trustee shall, at such time as there are no
Bonds Outstanding, release all of the Trust Estate to the Issuer (other than
any cash held for the payment of the Bonds pursuant to Section 3.03 or 4.02),
subject, however, to the payment and reimbursement of any unpaid or
unreimbursed Servicing Fees, Indenture Trustee Fees, Disposition Fees, Default
Servicing Fees (with interest thereon at the Advance Rate) and Advances with
Advance Interest thereon owed to the Servicer, the Indenture Trustee or the
Fiscal Agent.
SECTION 8.07. AMENDMENT TO SERVICING AGREEMENT.
The Indenture Trustee may, without the consent of any Holder, enter
into or consent to any amendment or supplement to the Servicing Agreement,
subject to the requirements therein.
SECTION 8.08. APPOINTMENT OF SERVICER.
In order to facilitate the servicing of the Bonds and the Collateral
therefor, the Servicer has been appointed by the Indenture Trustee to, among
other things, retain, in accordance with the provisions of the Servicing
Agreement and this Indenture, all Remittances prior to the time they are
deposited into the Collateral Proceeds Account.
SECTION 8.09. TERMINATION OF SERVICER.
If the Servicer materially breaches or fails to perform or observe any
obligations or conditions in the Servicing Agreement, the Indenture Trustee may
terminate the Servicer in accordance with the Servicing Agreement. If the
Indenture Trustee terminates the Servicer, the
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Indenture Trustee shall pursuant to Section 5.03 of the Servicing Agreement
assume the duties of the Servicer or appoint a successor servicer acceptable to
the Issuer and the Rating Agency and meeting the requirements set forth in the
Servicing Agreement.
SECTION 8.10. APPOINTMENT OF CUSTODIANS.
The Indenture Trustee may, at no additional cost to the Issuer, with
the consent of the Issuer, appoint one or more Custodians to hold all or a
portion of the Mortgage Files as agent for the Indenture Trustee. Each
Custodian shall (i) be a financial institution supervised and regulated by the
Comptroller of the Currency, the Board of Governors of the Federal Reserve
System, the Office of Thrift Supervision, or the Federal Deposit Insurance
Corporation; (ii) have combined capital and surplus of at least $10,000,000;
(iii) be equipped with secure, fireproof storage facilities, and, have adequate
controls on access to assure the safety and security of the Mortgage Files;
(iv) utilize in its custodial function employees who are knowledgeable in the
handling of mortgage documents and of the functions of a mortgage document
custodian; and (v) satisfy any other reasonable requirements that the Indenture
Trustee may from time to time deem necessary to protect the interests of
Bondholders in the Mortgage Files. Each Custodian shall be subject to the same
obligations and standard of care as would be imposed on the Indenture Trustee
hereunder assuming the Indenture Trustee retained the Mortgage Files directly.
The appointment of one or more Custodians shall not relieve the Indenture
Trustee from any of its obligations hereunder, and the Indenture Trustee shall
remain responsible for all acts and omissions of any Custodian. If the
Servicer is appointed as a Custodian in accordance with this Section 8.11, it
shall fulfill its servicing and custodial duties and obligations through
separate departments and, if it maintains a trust department, shall fulfill its
custodial duties and obligations through such trust department.
SECTION 8.11. THE FISCAL AGENT.
(a) All fees and expenses of the Fiscal Agent (other than interest
owed to the Fiscal Agent in respect of unreimbursed Advances or deposits)
incurred by the Fiscal Agent in connection with the transactions contemplated
by this Indenture or the Servicing Agreement shall be borne by the Indenture
Trustee and neither the Indenture Trustee nor the Fiscal Agent shall be
entitled to reimbursement therefor from any of the Trust Estate or the Issuer.
(b) The obligations of the Fiscal Agent set forth herein and in
the Servicing Agreement shall exist for so long as the initial Indenture
Trustee shall act as Indenture Trustee hereunder. The obligations of the
Fiscal Agent set forth herein and in the Servicing Agreement shall cease to
exist to the extent that the initial Indenture Trustee is no longer acting as
Indenture Trustee hereunder.
(c) Any notice to the Indenture Trustee shall be deemed a notice
to the Fiscal Agent.
(d) The Fiscal Agent shall be entitled to be indemnified to the
same extent provided herein with respect to the Indenture Trustee.
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ARTICLE IX.
SUPPLEMENTAL INDENTURES AND
MODIFICATIONS OF OTHER LOAN DOCUMENTS
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
BONDHOLDERS.
Without the consent of the Holders of any Bonds, the parties hereto at
any time and from time to time, may enter into one or more indentures
supplemental hereto, or modification or amendment to any other Loan Document,
in form satisfactory to the Indenture Trustee, for any of the following
purposes:
(a) to correct or amplify the description of any property
at any time subject to the lien of this Indenture and the related
Mortgage, or better to assure, convey and confirm unto the Indenture
Trustee any property subject or required to be subjected to the lien
of this Indenture and the related Mortgage, or to subject to the lien
of this Indenture additional property;
(b) to add to the conditions, limitations and
restrictions on the authorized amount, terms and purposes of the
issuance, authentication and delivery of any Bonds, as herein set
forth, additional conditions, limitations and restrictions thereafter
to be observed;
(c) to evidence the succession of another Person to the
Issuer to the extent expressly permitted under the Loan Documents and
the Partnership Agreement or Certificate of Limited Partnership of the
Issuer, and the assumption by any such successor of the covenants of
the Issuer herein and in the Bonds contained;
(d) to add to the covenants of the Issuer, for the
benefit of the Holders of all Bonds or to surrender any right or power
herein conferred upon the Issuer; and
(e) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to amend any other provisions with respect to
matters or questions arising under this Indenture, which shall not be
inconsistent with the provisions of this Indenture provided that such
action shall not adversely affect in any material respect the
interests of the Holders of the Bonds, as evidenced by a letter from
the Rating Agency that the amendment will not cause a qualification,
withdrawal or downgrading of the ratings then maintained by the Rating
Agency with respect to the Bonds.
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SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF BONDHOLDERS.
(a) With the consent of the Holders of Bonds representing not less
than 66 2/3% of the principal balance of the Outstanding Bonds by Act of said
Holders delivered to the Issuer and the Indenture Trustee, the parties hereto
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to, or changing in any manner or eliminating any of
the provisions of, this Indenture or of modifying in any manner the rights of
the Holders of the Bonds under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Bond affected thereby:
(i) change the Stated Maturity of the Bonds or the
installment of interest on the Bonds, reduce the principal amount of
the Bonds, the Class Interest Rate on the Bonds, Excess Interest that
may accrue or be payable on the Bonds or the Yield Maintenance Premium
payable with respect to certain Prepayments on the Bonds or change the
terms under which such Yield Maintenance Premiums are required to be
paid, or change any place of payment where, or the coin or currency in
which, any Bond or any interest thereon is payable, or impair the
right to institute suit for the enforcement of the payment of the
principal of or interest on any Bond on or after the Stated Maturity
thereof;
(ii) reduce the percentage of the principal balance of the
Outstanding Bonds, the consent of the Holders of which is required for
any such supplemental indenture, or the consent of the Holders of
which is required for any waiver of compliance with provisions of this
Indenture or Defaults hereunder and their consequences provided for in
this Indenture;
(iii) modify any of the provisions of this Section or
Section 5.14, except to increase any percentage specified therein or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Bond affected thereby;
(iv) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(v) permit the creation of any lien other than the lien
of this Indenture with respect to any part of the Trust Estate (except
for Permitted Liens) or terminate the lien of this Indenture on any
property at any time subject hereto or deprive the Holder of any Bond
of the security afforded by the lien of this Indenture; or
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the Scheduled Payment for
any Payment Date (including the calculation of any of the individual
components of such Scheduled Payment).
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(b) The Indenture Trustee may determine whether or not any Bonds
would be affected by any supplemental indenture in reliance upon an Opinion of
Counsel or confirmation from the Rating Agency that such supplemental indenture
will not cause a qualification, withdrawal or downgrading of the ratings then
maintained by the Rating Agency with respect to the Bonds and any such
determination shall be conclusive upon the Holders of all Bonds, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
(c) It shall not be necessary for any Act of Bondholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
(d) Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Holders of the Bonds to which such supplemental
indenture relates a notice prepared by the Issuer setting forth in general
terms the substance of such supplemental indenture. Any failure of the
Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Indenture Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture far all purposes; and every
Holder of Bonds to which such supplemental indenture relates which have
theretofore been or thereafter are authenticated and delivered hereunder shall
be bound thereby.
Notwithstanding any provision of this Article IX to the contrary, any
modification, amendment or supplement to this Indenture that is adverse to the
interests of the Servicer in any material respect shall not be binding upon the
Servicer without the Servicer's prior written consent.
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SECTION 9.05. REFERENCE IN BONDS TO SUPPLEMENTAL INDENTURES .
Bonds authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and if required by the
Indenture Trustee shall, bear a notation in form approved by the Indenture
Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Bonds so modified as to conform, in the opinion
of Indenture Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Bonds.
SECTION 9.06. AMENDMENTS TO LOAN DOCUMENTS.
(a) With the consent of the Issuer and the Holders of Bonds
representing at least 66 2/3% of the principal balance of the Outstanding Bonds
by Act of said Holders delivered to the Issuer and the Indenture Trustee, the
Issuer and the Indenture Trustee may enter into a modification of any Loan
Document (other than the Indenture or the Bonds) for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, such Loan Document or of modifying in any manner the rights of the Holders
of the Bonds under such Loan Document; provided, however, that no such
modification shall, without the consent of the Holder of each Outstanding Bond
affected thereby, have any of the results enumerated in Section 9.02(a) (i)
through (vi).
(b) The Indenture Trustee may determine whether or not any Bonds
would be affected by any modification of a Loan Document in reliance upon an
Opinion of Counsel or confirmation from the Rating Agency that the modification
will not cause a qualification, withdrawal or downgrading of the ratings then
maintained by the Rating Agency with respect to the Bonds and any such
determination shall be conclusive upon the Holders of all Bonds, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith. The
Indenture Trustee may, but shall not be obligated to, enter into any such
modification of a Loan Document that affects the Indenture Trustee's own
rights, duties or immunities under this Indenture or otherwise.
(c) It shall not be necessary for any Act of Bondholders under
this Section to approve the particular form of any proposed modification, but
it shall be sufficient if such Act shall approve the substance thereof.
(d) The Indenture Trustee shall deposit in the related Mortgage
File an original counterpart of the agreement relating to such modification,
waiver or amendment promptly following the execution thereof, except to the
extent such documents have been submitted to the applicable recording office,
in which event the Indenture Trustee shall place a copy of such document in the
related Mortgage File and shall place an original counterpart therein when the
original is returned from the recording office.
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SECTION 9.07. AMENDMENTS TO GOVERNING DOCUMENTS.
(a) The Indenture Trustee shall, upon Issuer Request,
consent to any proposed amendment to the Issuer's or the General Partner's
governing documents, or an amendment to or waiver of any provision of any other
document relating to the Issuer's or General Partner's governing documents,
such consent to be given without the necessity of obtaining the consent of the
Holders of any Bonds upon receipt by the Indenture Trustee of:
(i) an Opinion of Counsel to the effect that such
amendment or waiver will not adversely affect the interests of the
Holders of the Bonds and that all conditions precedent to such consent
specified in this Section 9.07 have been satisfied;
(ii) an Officers' Certificate, to which such proposed
amendment or waiver shall be attached, stating that such attached copy
is a true copy of the proposed amendment or waiver and that all
conditions precedent to such consent specified in this Section 9.07
have been satisfied; and
(iii) written confirmation from the Rating Agency that the
implementation of the proposed amendment or waiver will not cause a
qualification, withdrawal or downgrading of the ratings then
maintained by the Rating Agency with respect to the Bonds.
(b) Notwithstanding the foregoing, the Indenture Trustee may
decline to consent to a proposed waiver or amendment that adversely affects its
own rights, duties or immunities under this Indenture or otherwise.
(c) Nothing in this Section 9.07 shall be construed to require
that any Person obtain the consent of the Indenture Trustee to any amendment or
waiver or any provision of any document where the making of such amendment or
the giving of such waiver without obtaining the consent of the Indenture
Trustee is not prohibited by this Indenture or by the terms of the document
that is the subject of the proposed amendment or waiver.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01. COMPLIANCE CERTIFICATES.
Upon any application or request by the Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, the Issuer shall
furnish to the Indenture Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by
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any provision of this Indenture relating to such particular application or
request, no additional certificate need be furnished.
SECTION 10.02. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
(a) In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of the Issuer may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any Opinion of Counsel may be based on the written opinion of other
counsel, in which event such Opinion of Counsel shall be accompanied by a copy
of such other counsel's opinion and shall include a statement to the effect
that such counsel believes that such counsel and the Indenture Trustee may
reasonably rely upon the opinion of such other counsel.
(c) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
(d) Wherever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's compliance with any term hereof, it
is intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the case
may be), of the facts and opinions stated in such document shall in such case
be conditions precedent to the right of the Issuer to have such application
granted or to the sufficiency of such certificate or report. The foregoing
shall not, however, be construed to affect the Indenture Trustee's right to
rely upon the truth and accuracy of any statement or opinion contained in any
such document as provided in Section 6.01(b)(2).
(e) Whenever in this Indenture it is provided that the absence of
the occurrence and continuation of a Default or Event of Default is a condition
precedent to the taking of any action by the Indenture Trustee at the request
or direction of the Issuer, then, notwithstanding that the satisfaction of such
condition is a condition precedent to the Issuer's right to make such request
or direction, the Indenture Trustee shall be protected in acting in accordance
with such request or direction if it does not have knowledge of the occurrence
and continuation of such Default or Event of Default as provided in Section
6.01(d).
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SECTION 10.03. ACTS OF BONDHOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Bondholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Bondholders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Bondholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Whenever such execution is by an officer of a corporation or a member
of a partnership on behalf of such corporation or partnership, such certificate
or affidavit shall also constitute sufficient proof of his authority.
(c) The ownership of Bonds shall be proved by the Bond Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Bonds shall bind the
Holder of every Bond issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Indenture Trustee or the Issuer in reliance thereon,
whether or not, notation of such action is made upon such Bonds.
SECTION 10.04. NOTICES TO INDENTURE TRUSTEE AND ISSUER.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Bondholders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Indenture Trustee by any Bondholder or by the
Issuer shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with and received by the Indenture
Trustee at its Corporate Trust Office; or
(b) the Issuer by the Indenture Trustee or by any
Bondholder shall be sufficient for every purpose hereunder (except for
certain Events of Default as provided in the definition of Event of
Default) if in writing and mailed, first-class postage prepaid, to the
Issuer addressed to it at 0000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx
Xxxxxx,
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Tennessee 38117, or at any other address previously furnished in
writing to the Indenture Trustee by the Issuer.
SECTION 10.05. NOTICES AND REPORTS TO BONDHOLDERS; WAIVER OF
NOTICES.
(a) Where this Indenture provides for notice to Bondholders of any
event or the mailing of any report to Bondholders, such notice or report shall
be sufficiently given (unless otherwise herein expressly provided) if mailed,
first-class postage prepaid, to each Bondholder affected by such event or to
whom such report is required to be mailed, at the address of such Bondholder as
it appears on the Bond Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice or the
mailing of such report. In any case where a notice or report to Bondholders is
mailed in the manner provided above, neither the failure to mail such notice or
report, nor any defect in any notice or report so mailed, to any particular
Bondholder shall affect the sufficiency of such notice or report with respect
to other Bondholders, and any notice or report which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or
provided.
(b) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Bondholders shall be filed with the
Indenture Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
(c) In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Bondholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 10.06. RULES BY INDENTURE TRUSTEE.
The Indenture Trustee may make reasonable rules for any meeting of Bondholders.
SECTION 10.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 10.08. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer shall
bind its successors and assigns, whether so expressed or not.
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SECTION 10.09. SEPARABILITY.
In case any provision in this Indenture or in the Bonds shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Bonds, expressed or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, any separate trustee or co-trustee appointed under Section 6.14, the
Servicer and the Bondholders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 10.11. LEGAL HOLIDAYS.
Except as otherwise provided herein or in the Glossary, in any case
where the date of any Payment Date, Special Payment Date or any other date on
which principal of or interest on any Bond is proposed to be paid shall not be
a Business Day, then (notwithstanding any other provision of the Bonds or this
Indenture) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of any such Payment Date, Special Payment Date or other date for
the payment of principal of or interest on any Bond and no interest shall
accrue for the period from and after any such nominal date, provided such
payment is made in full on such next succeeding Business Day.
SECTION 10.12. GOVERNING LAW.
IN VIEW OF THE FACT THAT BONDHOLDERS MAY RESIDE IN MANY STATES AND
OUTSIDE THE UNITED STATES AND THE DESIRE TO ESTABLISH WITH CERTAINTY THAT THIS
INDENTURE WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAW OF A STATE HAVING A WELL-DEVELOPED BODY OF COMMERCIAL AND FINANCIAL LAW
RELEVANT TO TRANSACTIONS OF THE TYPE CONTEMPLATED HEREIN, THIS INDENTURE AND
EACH BOND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
SECTION 10.13. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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SECTION 10.14. ISSUER OBLIGATION.
Except as expressly provided in the Loan Documents, no recourse may be
taken, directly or indirectly, against any organizer, General Partner or the
Indenture Trustee or of any predecessor or successor of the Issuer or the
Indenture Trustee with respect to the Issuer's obligations with respect to the
Bonds or the obligations of the Issuer or the Indenture Trustee under this
Indenture or any certificate or other writing delivered in connection herewith
or therewith.
SECTION 10.15. USURY.
The amount of interest payable or paid on any Bond under the terms of
this Indenture shall be limited to the Highest Lawful Amount. In the event any
payment of interest on any Bond exceeds the Highest Lawful Amount, the Issuer
stipulates that such excess amount will be deemed to have been paid as a result
of an error on the part of both the Indenture Trustee, acting on behalf of the
Holder of such Bond, and the Issuer, and the Holder receiving such excess
payment shall promptly, upon discovery of such error or upon notice thereof
from the Issuer or the Indenture Trustee, refund the amount of such excess or,
at the option of the Indenture Trustee, apply the excess to the payment of
principal of such Bond, if any, remaining unpaid. In addition, all sums paid
or agreed to be paid to the Indenture Trustee for the benefit of Holders of
Bonds for the use, forbearance or detention of money shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such Bonds.
SECTION 10.16 XXXXXX ACT.
Any provisions required to be contained in this Indenture by Section
126 and Section 130-k of Article 4-A of the New York Real Property Law are
hereby incorporated, and such provisions shall be in addition to those
conferred or imposed by this Indenture, provided, however, that to the extent
that such Section 126 or Section 130-k shall not apply to this Indenture, said
Section 126 or Section 130-k should at any time be repealed or cease to apply
to this Indenture, or be construed by judicial decision to be inapplicable,
said Section 126 or Section 130-k as the case may be shall cease to have any
further effect upon the provisions of this Indenture. In case of a conflict
between the provisions of this Indenture and any mandatory provisions of
Article 4-A of the New York Real Property Law, such mandatory provisions of
said Article 4-A shall prevail, provided that if said Article 4-A shall not
apply to this Indenture, should at any time be repealed, or cease to apply to
this Indenture, or be construed by judicial decision to be inapplicable, such
mandatory provisions of such Article 4-A shall cease to have any further effect
upon the provisions of this Indenture.
SECTION 10.17 USE OF SCHEDULE C.
Schedule C has been attached hereto for certain purposes set forth in
the Mortgages.
62
69
*****
[SIGNATURES TO FOLLOW]
63
70
IN WITNESS WHEREOF, the Issuer, acting through its duly authorized
general partner, the Indenture Trustee and the Fiscal Agent have caused this
Indenture to be duly executed by officers thereunto duly authorized, all as of
the day and year first above written.
EQI FINANCING PARTNERSHIP I, L.P.,
a Tennessee limited partnership
By: EQI FINANCING CORPORATION,
a Tennessee corporation,
its duly authorized general partner
By:
------------------------------------------
LASALLE NATIONAL BANK,
as Indenture Trustee
By:
------------------------------------------
ABN AMRO BANK N.V.,
as Fiscal Agent
By:
-------------------------------------------
71
SCHEDULE A
MORTGAGED PROPERTIES AND INITIAL ALLOCATED LOAN AMOUNTS
MORTGAGED INITIAL ALLOCATED
PROPERTY LOAN AMOUNTS
----------- -----------------
Hampton Inn $3,026,413
00 Xxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx
Hampton Inn 4,650,885
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx
Hampton Inn 3,167,496
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx
Hampton Inn 3,102,815
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx
Hampton Inn 3,781,071
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx
Hampton Inn 3,560,486
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx
Hampton Inn 4,418,818
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx
Hampton Inn 4,769,033
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx
Hampton Inn 4,060,556
0000 Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx
Hampton Inn 4,291,658
000 Xxxxxxx Xxx
Xxx Xxxxx, Xxxxxxxx
Hampton Inn 3,443,491
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxxx
X-0
00
Xxxxxxx Xxx 4,421,997
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx
Hampton Inn 3,581,889
00000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxx
Hampton Inn 2,972,370
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx (Xxxxx), Xxxxxxxxx
Hampton Inn 4,863,879
0000 XX-00X
Xxxxxx, Xxxxx
Hampton Inn 3,703,488
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxxxx, Xxxxx
Hampton Inn 3,735,332
00000 Xxxx XX Xxxxxxx
Xxxxxx (Xxxxxxx), Xxxxx
Hampton Inn 2,905,519
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxx
Holiday Inn 3,337,956
0000 Xxxxxxxxx Xxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx
Holiday Inn 5,786,610
000 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx (Xx. Xxxxxxxx), Xxxxx Xxxxxxxx
Residence Inn 2,396,017
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxxx
Residence Inn 2,522,541
000 X'Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx
Comfort Inn 5,499,680
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx Xxxxx, Xxxxxxx
S-2
73
SCHEDULE B
AMORTIZATION SCHEDULE
[To be provided by Xxxxx Xxxxxx upon pricing]
S-3
74
SCHEDULE C
SCHEDULE OF SURVEYS, PROPERTY CONDITION REPORTS
AND ENVIRONMENTAL REPORTS
SCHEDULE OF SURVEYS
1. Hampton Inn 4. Xxxxxxx Xxx
000 Xxxxxx Xxxx 0000 X. Xxxxxxx Xxxxx
XXXXXXX, XX 00000 XXXXXXXX, XX 00000
XXXXXXXXXX, O'BYMACHOW & XXXX XXXXX ENGINEERING ASSOCIATES INC.
00 Xxxxxxxxxx Xxxxxx 0000 Xxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx Attn: Mr. Xxxx Xxxxx
Telephone: 203/000-0000 Telephone: (000) 000-0000
Telecopier: 203/924-2660 Telecopier: (000) 000-0000
SURVEY DATE: 8/17/94 SURVEY DATE: 2/24/94
2. Hampton Inn 5. Hampton Inn (Knoxville)
00 Xxx Xxxxxx 000 Xxxxxxxxxxxxx Xxxxx
XXXXXXX, XX 00000 XXXXX, XX 00000
XXXXXXX & XXXXXX BENCHMARK SURVEYING CO.
0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxx, Xxxxx X
Xxxxxxxx, Xxxxxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxxxx Attn: Xxxxx Xxxxxxx
Telephone: 203/000-0000 Telephone: 423/000-0000
Telecopier: 203/272-0316 Telecopier: 423/
SURVEY DATE: 9/16/94 SURVEY DATE: 2/16/96
3. Hampton Inn 6. Hampton Inn
0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxxx Xxxx
XXXXXXXXXXXX, XX 00000 XXXXXXXX, XX 00000
SUNSHINE STATE SURVEYORS, INC. JORDAN, XXXXX AND XXXXXXXX, INC.
0000 Xx. Xxxxx Xxxxx Xxxx Engineers and Planners
Xxxxxxxxxxxx, XX 00000 0000 Xxxxx Xxxx, #000
Xxxx: Xxxxxx Xxxxxxxxxxxx, Xxxxxxxx, Xxxxxxx 00000
Vice President Attn: Xx. Xxxxx X. Xxxx
Telephone: (000) 000-0000 Telecopier: 706-324-3213
Telecopier: (000) 000-0000
SURVEY DATE: 1/11/94
SURVEY DATE: 8/11/95
S-4
75
7. Hampton Inn 11. Hampton Inn
00000 Xxxxxxx Xxxx 0000 Xxxxx Xxxxxx
XXXXXXXX, XX 00000 XXXXXX, XX 00000
XXXXX ASSOCIATES, INC. XXXXXXX CONSULTING, LTD.
Consulting Engineers 000 Xxxxxxxxx Xxxxxxx
0000 Xxxx Xxxxxx Xxxx Xxxxxx Xxxxx, Xxxxxxxx 00000
Xxxxx, Xxxx 00000 Attn: Xx. Xxxx X. Xxxx
Telephone: 216/000-0000 Telephone: 708/000-0000
Telecopier: 708/634-0095
SURVEY DATE: 2/21/94 SURVEY DATE: 5/16/94
8. Hampton Inn 12. Hampton Inn
0000 Xxxxxxx Xxxx 0000 Xxxxx Xxxx
XXXXXXXX, XX 00000 XXXXXXXXXX, XX 00000
TRIAD ENGINEERING MID AMERICA SURVEY COMPANY
000 Xxxxxxx Xxx Xxxx 000 Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxxx or Attn: Xx. Xxxxx Xxxx or
Onas Xxxxx Xxxx Bronstadt
Telephone: 304/000-0000 Telephone: 708/000-0000
Telecopier: 304/296-8739 Telecopier: 708/690-3735
SURVEY DATE: 11/15/94 SURVEY DATE: 12/7/94
9. Hampton Inn 13. Hampton Inn
0000 Xxxxx Xxxxx Xxxx 000 Xxxxxx'x Xxx
XXXXXXXXXXXX, XX 00000 ANN ARBOR, MI
XXXXXXX, XXXXX & XXXXXXX Washtinaw Engineering
Post Office Box 53774 0000 Xxxx Xxxxxxx Xxxx
000 Xxxxxxxxx Xxxxxx Xxx Xxxxx, XX 00000
Xxxxxxxxxxxx, XX 00000 Telephone: 313/000-0000
Attn: Xx. Xxxxxxx Xxxxxxx
Telephone: 910/000-0000 SURVEY DATE: 3/30/94
Telecopier: 910/484-0388
14. Hampton Inn
SURVEY DATE 8/95 0000 XX-00 Xxxxx
XXXXXX, XX 00000
10. Hampton Inn
0000 Xxxxxxx Xxxxxx Xxxx. XXXX XXXXX LAND SURVEYORS, P.C.
XXXXXXXXXX, XX 00000 0000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
XXXXX-XXXXXXXX & ASSOCIATES Attn: Xx. Xxxx Xxxxx, R.P.L.S.
0000 Xxxxxx Xxxxx, Xxxxx 000 Telephone:
Xxxxxxxxxx, Xxxxxxxx 00000 Telecopier:
Attn: Mr. C. Xxxxxx Xxxxxxxx
Telephone: 502/000-0000 SURVEY DATE: 12/19/95
SURVEY DATE: 3/29/94
X-0
00
00. Hampton Inn 19. Holiday Inn (Mt. Pleasant)
00000 X. Xxxxxxxxx Xxxxxxx 000 Xxxxxxx Xxxxx Xxxx.
XXXXXX, XX 00000 XXXXXXXXXX, XX 00000
XXXXXX AND XXXXXXX TRICO Environmetrics, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxx 000
Xxxxxx, Xxxxx 00000 0000 Xxxxx Xxxxx Xxxxx
Xxxx: Xx. Xxxx Xxxxxxxx, R.P.L.S. X. Xxxxxxxxxx, XX 00000
Telephone: 214/000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SURVEY DATE 6/29/95
SURVEY DATE 8/15/95
16. Hampton Inn
0000 Xxxxxx Xxxx 20. Holiday Inn
FT. XXXXX, XX 00000 0000 Xxxxxxxxx Xxxx
XXXXXXX-XXXXX, XX 00000
XXXXXXX & ASSOCIATES
0000 Xxxxx Xxxx, Xxx. 0 International Land Services, Inc.
Xxxxxx, Xxxxx 00000 000 00xx Xxxxxx X.X., Xxxxx X
Xxxx: Xxxx Xxxxxxx Xxxxxx, Xxxxxxxx 00000
Telephone: 214/000-0000 Telephone: 405/000-0000
Telecopier: 214/702-9832 Telecopier: 405/321-2438
SURVEY DATE: 2/20/94 21. Residence Inn
000 X'Xxxxxxx Xxxxx
17. Xxxxxxx Xxx XXXXXXX, XX 00000
0000 Xxxx 00xx Xxxxxx
XXXXXXXXXXXX, XX 00000 XXXXXX & X'XXXXXXXX
000 Xxxxxxx Xxxxx
MSE CORPORATION Xxxxxxx, Xxxxxxxxx 00000
000 Xxxxx Xxxxxxxx Xxxxxx Attn: Xx. Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000 Telephone: 608/000-0000
Attn: Xxxxx X. Xxxxxxx Telecopier: 608/271-7284
Telephone: 314/000-0000
Telecopier: 317/634-3576 SURVEY DATE
SURVEY DATE: 8/17/95 22. Residence Inn
0000 Xxxxx Xxxxxx
00. Xxxxxxx Xxx XXXXX, XX 00000
000 Xxxxx Xxxxxx Xxxxx
XXXXXXX XXXXXXX, XX 00000
XXXXX ENGINEERING & SURVEYING LAMP, XXXXXXXXX & ASSOCIATES
X. X. Xxxxx, R.P.L.S. 00000 Xxxxxxxxxx Xxxxxx
0000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxx 00000
X.X. Xxx 0000 Attn: Xx. Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000 Telephone: 402/000-0000
Telephone: (000)000-0000 Telecopier: 402/496-2730
SURVEY DATE: 3/1/94 SURVEY DATE: 11/11/95
S-6
77
23. Comfort Inn
0000 Xxxxx Xxxxx Xxxxxx
XXXXXXXXXXXX XXXXX, XX 00000
XXXXXXX AND ASSOC.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Telephone: 904/
Telecopier: 904/346-2625
SURVEY DATE: 10/10/95
S-7
78
SCHEDULE OF ENVIRONMENTAL AND PROPERTY CONDITION REPORTS
Environmental and Prepared By Date
Franchise Location Property Condition
Reports
x. Xxxxxxx Inn Meriden, CT Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/22/95
Executive Summary
ii. Hampton Inn Milford, CT Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/23/95
Executive Summary
iii. Hampton Inn Jacksonville, FL Phase I Environmental Site EMG 11/7/95
Assessment
Property Condition EMG 10/24/95
Executive Summary
iv. Hampton Inn Sarasota, FL Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/27/95
Executive Summary
S-8
79
SCHEDULE OF ENVIRONMENTAL AND PROPERTY CONDITION REPORTS
Environmental and Prepared By Date
Franchise Location Property Condition
Reports
x. Xxxxxxx Inn Columbus, GA Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
vi. Hampton Inn Chicago, IL (Gurnee) Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
vii. Hampton Inn Chicago, IL (Naperville) Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
viii. Hampton Inn Indianapolis, IN Phase I Environmental Site EMG 11/8/95
Assessment
Property Condition EMG 10/24/95
Executive Summary
ix. Hampton Inn Louisville, KY Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
S-9
80
SCHEDULE OF ENVIRONMENTAL AND PROPERTY CONDITION REPORTS
Environmental and Prepared By Date
Franchise Location Property Condition
Reports
x. Xxxxxxx Inn Ann Arbor, MI Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
xi. Hampton Inn Fayetteville, NC Phase I Environmental Site EMG 11/7/95
Assessment
Property Condition EMG 10/24/95
Executive Summary
xii. Hampton Inn Gastonia, NC Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/22/95
Executive Summary
xiii. Hampton Inn Cleveland, OH (Westlake) Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
xiv. Hampton Inn Knoxville, TN Phase I Environmental Site EMG 9/23/96
Assessment
Property Condition Survey EMG 9/24/96
S-10
81
SCHEDULE OF ENVIRONMENTAL AND PROPERTY CONDITION REPORTS
Environmental and Prepared By Date
Franchise Location Property Condition
Reports
xv. Hampton Inn Austin, TX Phase I Environmental Site O'Brien & Xxxx Engineers 12/95
Assessment
Property Condition Survey EMG 1/29/96
xvi. Hampton Inn College Station, TX Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
xvii. Hampton Inn Dallas, TX (Garland) Phase I Environmental Site O'Brien & Xxxx Engineers 2/96
Assessment
Property Condition Survey EMG 2/6/96
xviii. Hampton Inn Fort Worth, TX Phase I Environmental Site EMG 9/26/95
Assessment
Property Condition EMG 9/26/95
Executive Summary
xix. Holiday Inn Winston-Salem, NC Phase I Environmental Site IVI Environmental 8/9/96
Assessment
Property Condition IVI International 8/13/96
Assessment
S-11
82
SCHEDULE OF ENVIRONMENTAL AND PROPERTY CONDITION REPORTS
Environmental and Prepared By Date
Franchise Location Property Condition
Reports
xx. Holiday Inn Charleston, SC (Mt. Pleasant) Phase I Environmental Site EMG 11/7/95
Assessment
Property Condition EMG 10/30/95
Executive Summary
xxi. Residence Inn Omaha, NE Environmental Site EMG 5/11/95
(Alcoa) Assessment
Property Condition Survey EMG 2/12/96
xxii. Residence Inn Madison, WI Phase I Environmental Site EMG 9/24/96
Assessment
Property Condition Survey EMG 9/26/96
xxiii. Comfort Inn Jacksonville Beach, FL Environmental Site Apex Environmental 2/22/96
Assessment
Property Condition Survey EMG 2/12/96
S-12
83
EXHIBIT A
FORM OF CLASS A BOND
[copy to come]
A-1
84
EXHIBIT B
FORM OF CLASS B BOND
[copy to come]
B-1
85
EXHIBIT C
FORM OF CLASS C BOND
[copy to come]
C-1
86
EXHIBIT D
REQUEST FOR EXCHANGE OF
REGULATION S TEMPORARY GLOBAL BOND
FOR REGULATION S PERMANENT GLOBAL BOND
(Bond Owner)
EQI FINANCING PARTNERSHIP I, L.P.
COMMERCIAL MORTGAGE BONDS, SERIES 1997-1, CLASS _
_______________
(DATE)
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE AS
OPERATOR OF THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities Trust Services Group
EQI Financing Partnership I, L.P.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Silver
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of January __, 1997
(the "Indenture") among EQI Financing Partnership I, L.P., as Issuer, LaSalle
National Bank, as Indenture Trustee and ABN AMRO Bank, N.V., as Fiscal Agent.
Capitalized terms used but not defined herein shall have the meanings given
them in the "Glossary" attached as Annex I to the Indenture.
This certificate relates to U.S. $_____________________ aggregate
principal amount of Class _ Bonds (the "Bonds") which are held in the form of
the Regulation S Temporary Global Bond (CINS No. _________) with the Depositary
in the name of ___________________ [name of transferor] (the "Transferor") to
effect the transfer of the beneficial interest in such Regulation
D-1
87
S Temporary Global Bond for a beneficial interest in an equivalent aggregate
principal amount in the Regulation S Permanent Global Bond.
In connection with such request, and in respect of such Bonds the
Transferor confirms that:
1. It is either not a U.S. person (as defined below) or
it has purchased its beneficial interest in the above referenced
Regulation S Temporary Global Bond in a transaction that is exempt
from the registration requirements under the 1933 Act.
2. It is delivering this certificate in connection with
obtaining a beneficial interest in the Regulation S Permanent Global
Bond in exchange for its beneficial interest in the Regulation S
Temporary Global Bond.
For purposes of this certificate, "U.S. person" means (i) any
individual resident in the United States, (ii) any partnership or corporation
organized or incorporated under the laws of the United States, (iii) any estate
of which an executor or administrator is a U.S. person (other than an estate
governed by foreign law and of which at least one executor or administrator is
a non-U.S. person who has sole or shared investment discretion with respect to
it assets), (iv) any trust of which any trustee is a U.S. person (other than a
trust of which at least one trustee is a non-U.S. person who has sole or
shared investment discretion with respect to its assets and no beneficiary of
the trust (and no settlor if the trust is revocable) is a U.S. person), (v) any
agency or branch of a foreign entity located in the United States, (vi) any
non-discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary for the benefit or account of a U.S. person, (vii)
any discretionary or similar account (other than an estate or trust) held by a
dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States (other than such an account held for the benefit
or account of a non-U.S. person), (viii) any partnership or corporation
organized or incorporated under the laws of a foreign jurisdiction and formed
by a U.S. person principally for the purpose of investing in securities not
registered under the 1933 Act (unless it is organized or incorporated, and
owned, by accredited investors within the meaning of Rule 501(a) under the 1933
Act who are not natural persons, estates or trusts); provided, however, that
the term "U.S. person" shall not include (A) a branch or agency of a U.S.
person that is located and operating outside the United States for valid
business purposes as a locally regulated branch or agency engaged in the
banking or insurance business, (B) any employee benefit plan established and
administered in accordance with the law, customary practices and documentation
of a foreign country and (C) the international organizations set forth in
Section 902(o)(7) of Regulation S under the 1933 Act and any other similar
international organizations, and their agencies, affiliates and pension plans.
D-2
88
The undersigned Transferor irrevocably authorizes you to produce this
certificate or a copy hereof to any interested party in any administrative or
other proceedings with respect to the matters covered by this certificate.
Very truly yours,
[TRANSFEROR]
Dated: By:
-------------------------------
Name:
Title:
To be completed by the account holder as, or as agent for, the
beneficial owner(s) of the Bonds to which this certificate relates.
D-3
89
EXHIBIT E
REQUEST FOR EXCHANGE OF
REGULATION S TEMPORARY GLOBAL BOND
FOR REGULATION S PERMANENT GLOBAL BOND
(Euroclear or Cedel)
EQI FINANCING PARTNERSHIP I, L.P.
COMMERCIAL MORTGAGE BONDS, SERIES 1997-1, CLASS _
_______________
(DATE)
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities Trust Services Group
EQI Financing Partnership I, L.P.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Silver
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of February 6, 1997
(the "Indenture") among EQI Financing Partnership I, L.P., as Issuer, LaSalle
National Bank, as Indenture Trustee and ABN AMRO Bank, N.V., as Fiscal Agent.
Capitalized terms used but not defined herein shall have the meanings given
them in the "Glossary" attached as Annex I to the Indenture.
This certificate relates to U.S. $____________________ aggregate
principal amount of Class _ Bonds (the "Bonds") which are held in the form of
the Regulation S Temporary Global Bond (CINS No. ______________) with the
Depositary to effect the transfer of the beneficial interest in such Regulation
S Temporary Global Bond for a beneficial interest in an equivalent aggregate
principal amount of the Regulation S Permanent Global Bond.
In connection with such request, this is to certify that, based solely
on certificates we have received in writing, by tested telex or by electronic
transmission from member organizations appearing in our records as persons
being entitled to a portion of the principal amount of the Regulation S
Temporary Global Bond set forth above (our "Member Organizations")
substantially to the effect set forth in the Indenture, U.S.
$__________________ aggregate principal amount of the Bonds is owned by persons
that are not citizens or residents
X-0
00
xx xxx Xxxxxx Xxxxxx, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States federal income
taxation regardless of its source or any other person deemed a "U.S. person"
under Regulation S under the Securities Act of 1933, as amended.
We further certify (i) that we are not making available herewith for
exercise (or if relevant, exercise of any rights of collection of any interest)
any portion of the Regulation S Global Bond excepted in such certificates and
(ii) that, as of the date hereof, we have not received any notification from
any of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise or any rights of collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain laws, and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced
or threatened in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Very truly yours,
[XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE AS
OPERATOR OF THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
By:
-------------------------------------
Name:
Title:
X-0
00
XXXXXXX X
LETTER AGREEMENT
(TO THE DEPOSITORY TRUST COMPANY)
F-1
92
EXHIBIT G
FORM OF TRANSFEREE AGREEMENT
EQI FINANCING PARTNERSHIP I, L.P.
COMMERCIAL MORTGAGE BONDS, SERIES 1997-1, CLASS _
--------------------
[Name of Transferee]
---------------
(DATE)
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities Trust Services Group
EQI Financing Partnership I, L.P.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Silver
Ladies and Gentlemen:
The undersigned (the "Transferee") proposes to purchase all or some of
the Class ___ Bonds (the "Bonds"), issued by EQI Financing Partnership I, L.P.
pursuant to an Indenture dated as of February 6, 1997 (the "Indenture"), among
EQI Financing Partnership I, L.P., as Issuer, LaSalle National Bank, as
Indenture Trustee and ABN AMRO Bank, N.V., as Fiscal Agent. Capitalized terms
used but not defined herein shall have the meanings given them in the
"Glossary" attached as Annex I to the Indenture.
1. Representations and Warranties. The Transferee represents and
warrants:
(a) It is purchasing the Bonds for its own account or an
account with respect to which it exercises sole investment discretion,
and it or the owner is an Institutional Accredited Investor, and it is
acquiring such Bonds for investment and not with a view to, or for
offer and sale in connection with, any distribution (within the
meaning of the 0000 Xxx) or fractionalization thereof or with any
intention of reselling the Bonds or any part thereof, subject to any
requirement of law that the disposition of its property or the
property of such investor account or accounts be at all times within
its or their control and subject to its or their ability to resell
such Bonds pursuant to Rule 144A, Regulation S, or other exemption
from registration available under the 1933 Act.
G-1
93
(b) It understands that each Bond, unless the Issuer
determines otherwise consistent with applicable law, will bear a
legend to the following effect:
THIS BOND HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS BOND, AGREES FOR THE BENEFIT OF THE ISSUER
AND THE INDENTURE TRUSTEE THAT THIS BOND MAY NOT BE RESOLD, PLEDGED,
OR OTHERWISE TRANSFERRED (X) WITHIN THREE YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE HEREOF OR THE SALE HEREOF BY AN AFFILIATE OF THE
ISSUER (COMPUTED IN ACCORDANCE WITH PARAGRAPH (D) OF RULE 144 UNDER
THE 1933 ACT) OR (Y) BY AN AFFILIATE OF THE ISSUER OR BY ANY HOLDER
THAT WAS AN AFFILIATE OF THE ISSUER AT ANY TIME DURING THE THREE
MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN
IN COMPLIANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND ONLY (1) TO THE ISSUER OR THE INITIAL PURCHASER, (2)
PURSUANT TO RULE 144A, TO A PERSON WHO THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE 1933 ACT PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 903 OR RULE 000 XX XXXXXXXXXX X
XXXXX XXX 0000 XXX OR (4) TO AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE 1933 ACT; AND IN CONNECTION WITH ANY
TRANSFER PURSUANT TO CLAUSE (4) AND CERTAIN OTHER TRANSFERS AS
SPECIFIED IN THE INDENTURE, A TRANSFEREE AGREEMENT IN THE APPROPRIATE
FORM PROVIDED IN THE INDENTURE MUST BE DELIVERED TO THE INDENTURE
TRUSTEE.
(c) It acknowledges that (i) it has been afforded an
opportunity to request from the Issuer and to review, and it has
received, all additional information considered by it to be necessary
to verify the accuracy of the information herein and (ii) no person
has been authorized to give any information or to make any
representation concerning the Bonds other than those contained in this
Memorandum and, if given or made, such other information or
representation should not be relied upon as having been authorized by
the Issuer.
(d) It has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks
of purchasing the Bonds and is, and any account or which it is acting
is, able to bear the economic risk of its investment.
(e) It understands that the Issuer, the Indenture
Trustee, the Initial Purchaser and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations and
agreements and agrees that if any of the acknowledgments,
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representations, or warranties deemed to have been made by it by its
purchase of the Bonds are no longer accurate, it shall promptly notify
the Issuer. If it is acquiring any Bonds as fiduciary or agent for
one or more investor accounts, it represents that it has sole
investment discretion with respect to each such account and that it
has full power to make the foregoing acknowledgments, representations
and agreements on behalf of such account.
(f) If it proposes that the Bonds being purchased by it
are to be registered in the name of a nominee on its behalf, it has
identified such nominee below, and has caused such nominee to complete
the Nominee Acknowledgment set forth below.
2. Transfer of the Bonds.
(a) The Transferee acknowledges that the Bonds have not
been and will not be registered under the 1933 Act or any state
securities law and may not be offered, resold or otherwise transferred
except as permitted above.
(b) It agrees that (i) within three years after the later
of the original issuance of the Bonds or the sale thereof by an
affiliate of the Issuer (computed in accordance with paragraph (d) of
Rule 144 under the 0000 Xxx) or if such holder was at the date of such
transfer or during the three months preceding such date of transfer an
affiliate of the Issuer, the Bonds may not be resold, pledged or
otherwise transferred except in compliance with any applicable
securities laws of any state of the United States and only (A) to the
Issuer or the Initial Purchaser, (B) pursuant to Rule 144A, to a
person who the holder reasonably believes is a qualified institutional
buyer within the meaning of Rule 144A under the 1933 Act purchasing
for its own account or the account of another qualified institutional
buyer to whom notice is given that the transfer is being made in
reliance on Rule 144A, (C) outside the United States in compliance
with Rule 903 or Rule 904 of Regulation S under the 1933 Act, or (D)
to an Institutional Accredited Investor, but only if, in connection
with any transfer pursuant to clause (D) and certain other transfers
as specified in the Indenture, a Transfer Certificate in the
appropriate form attached as an exhibit to the Indenture is delivered
by the transferee to the Indenture Trustee, and (ii) it will give the
transferee notice of these restrictions on resale of the Bonds.
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Name of Nominee (if any):
Very truly yours,
[TRANSFEREE]
By:
---------------------------
Name:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that all Bonds being
registered in its name pursuant to the foregoing Transferee Agreement are and
shall be held by the undersigned as nominee for the Transferee identified above
and for no other person.
By:
-----------------------------
Duly Authorized
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EXHIBIT H
TRANSFER CERTIFICATE
EQI FINANCING PARTNERSHIP I, L.P.
COMMERCIAL MORTGAGE BONDS, SERIES 1997-1, CLASS _
_______________, 1997
(DATE)
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Asset-Backed Securities Trust Services Group
EQI Financing Partnership I, L.P.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Silver
Ladies and Gentlemen:
Reference is hereby made to the Indenture dated as of February 6, 1997
(the "Indenture") between EQI Financing Partnership I, L.P., as Issuer, LaSalle
National Bank, as Indenture Trustee and ABN AMRO Bank, N.V., as Fiscal Agent.
Capitalized terms used but not defined herein shall have the meanings given
them in the "Glossary" attached as Annex I to the Indenture.
This letter relates to U.S. $____________________ aggregate principal
amount of Class ____ Bonds (the "Bonds"), which are held in the form of the
following (check one):
[ ] the Regulation S Permanent Global Bond with the Depositary (CINS
No. _____________);
[ ] the Rule 144A Global Bond (CUSIP No. ________________) with the
Depositary;
[ ] Definitive Bond (CUSIP No. __________); or
[ ] IAI Bond (CUSIP No. __________).
Such Bonds are held in the name of _____________________ [name of transferor]
(the "Transferor"), who intends to effect the transfer of such Bonds in
exchange for an equivalent aggregate principal amount in the form of the
following (check one):
[ ] the Regulation S Temporary Global Bond (CINS No. ________);
[ ] the Regulation S Permanent Global Bond (CINS No. ________);
[ ] Rule 144A Global Bond (CUSIP No. ________);
[ ] Definitive Bond (CUSIP No. _______); or
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[ ] IAI Bond (CUSIP No. _______).
In connection with such request, the Transferor does hereby certify
that such transfer has been effected in accordance with (i) the transfer
restrictions set forth in the Indenture and (ii) in accordance with applicable
securities laws of any state of the United States or any other jurisdiction.
With respect to transfers made otherwise than pursuant to Rule 144A,
the Transferor further certifies that the Bonds are being transferred to a
transferee that the Transferor reasonably believes is an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act of 1933) and is acquiring at least
$100,000 principal amount of Bonds for its own account or for one or more
accounts as to which the transferee exercises sole investment discretion, and a
Transferee Agreement, signed by such transferee, is attached hereto.
With respect to transfers made in reliance on Rule 144A, the
Transferor further certifies that the Bonds are being transferred to a
transferee that the Transferor reasonably believes is purchasing the Bonds for
its own account or an account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with
applicable securities laws of any state of the United States or any other
jurisdiction. A Rule 144A Certificate, signed by the transferee, is attached
hereto.
With respect to transfers made in reliance on Regulation S, the
Transferor does certify that:
(i) the offer of the Bonds was not made to a person in
the United States;
(ii) either (i) at the time that the buy order was
originated, the buyer was outside the United States, or the seller and
any person acting on the seller's behalf believed that the buyer was
outside the United States, or (ii) the transaction was executed in, on
or through the facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its behalf knows
that the transaction was pre-arranged with a buyer in the United
States;
(iii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(iv) the transaction is not part of a plan or scheme to
evade the registration requirements of the United States Securities
Act of 1933 (the "1933 Act");
If the sale is being made in reliance on Regulation S during the
40-day restricted period specified in Rule 903(c)(3) of Regulation S, then the
undersigned believes that the purchaser is not a U.S. person. For purposes of
this certificate, "U.S. person" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of the United States, (iii) any estate or which an executor or
administrator is a U.S. person (other than an estate governed by foreign law
and of which at least one executor or
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administrator is a non-U.S. person who has sole or shared investment discretion
with respect to its assets), (iv) any trust of which any trustee is a U.S.
person (other than a trust of which at least one trustee is a non-U.S. person
who has sole or shared investment discretion with respect to its assets and no
beneficiary of the trust (and no settlor if the trust is revocable) is a U.S.
person), (v) any agency or branch of a foreign entity located in the United
States, (vi) any non-discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a U.S.
person, (vii) any discretionary or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States (other than such an account held for
the benefit or account of a non-U.S. person), (viii) any partnership or
corporation organized or incorporated under the laws of a foreign jurisdiction
and formed by a U.S. person principally for the purpose of investing in
securities not registered under the 1933 Act (unless it is organized or
incorporated, and owned, by accredited investors within the meaning of Rule
501(a) under the 1933 Act who are not natural persons, estates or trusts);
provided, however, that the term "U.S. person" shall not include (A) a branch
or agency of a U.S. person that is located and operating outside the United
States for valid business purposes as a locally regulated branch or agency
engaged in the banking or insurance business, (B) any employee benefit plan
established and administered in accordance with the law, customary practices
and documentation of a foreign country and (C) the international organizations
set forth in Section 902(o)(7) of Regulation S under the 1933 Act and any other
similar international organizations, and their agencies, affiliates and pension
plans.
In addition, if the sale is being made pursuant to Regulation S during
a restricted period and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of
Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1),
as the case may be.
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You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
[Name of Transferor]
By:
----------------------------
Name:
Title:
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RULE 144A CERTIFICATE EXHIBIT I
EQI FINANCING PARTNERSHIP I, L.P.
COMMERCIAL MORTGAGE BONDS, SERIES 1997-1, CLASS _
_______________, 1997
(DATE)
To: LaSalle National Bank, as Indenture Trustee
000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
In connection with our acquisition, pursuant to Rule 144A under the
Securities Act of 1933 (the "Act"), of the Series 1997-1, Class _ Commercial
Mortgage Bonds (the "Bonds") issued by EQI Financing Partnership I, L.P. , we
certify that we are a qualified institutional buyer in that we satisfy the
requirements of one or more of paragraphs (i) through (v) hereof (check
applicable boxes).
[ ] (i) We are an entity referred to in sub-paragraphs (A) through (G)
hereof and in the aggregate owned and invested on a discretionary
basis, for our own account and the accounts of other qualified
institutional buyers, at least the amount of securities specified
below (not less than $100 million), calculated as provided in Rule
144A, as of the date specified below:
[ ] (A) Corporation, etc. A corporation (other than a bank
savings and loan or similar institution referred to in (ii)
below), partnership, Massachusetts or similar business trust,
organization described in Section 501(c)(3) of the Internal
Revenue Code, small business investment company licensed by
the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958, or business
development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940; or
[ ] (B) Insurance Company. An insurance company as defined in
Section 2(13) of the Act; or
[ ] (C) ERISA Plan. An employee benefit plan within the meaning
of Title I of the Employee Retirement Income Security Act of
1974; or
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[ ] (D) State or Local Plan. A plan established and maintained
by a state, its political subdivisions, or any agency or
instrumentality of a state or its political subdivisions, for
the benefit of its employees; or
[ ] (E) Trust Fund. A trust fund, whose trustee is a bank or
trust, whose participants are exclusively plans specified in
sub-paragraph (C) or (D) above (but not including trust funds
having IRAs or Xxxxx plans as participants); or
[ ] (F) Investment Company. An investment company registered
under the Investment Company Act of 1940 or any business
development company as defined in Section 2(a)(48) of that
Act; or
[ ] (G) Investment Advisor. An investment adviser registered
under the investment Advisers Act of 1940.
[ ] (ii) Bank or Savings and Loan. We are a bank as defined in Section
3(a)(2) of the Act, a savings and loan association or other
institution referenced in Section 3(a)(5)(A) of the Act, or a foreign
bank or savings and loan association or equivalent institution that in
the aggregate owned and invested on a discretionary basis, for our own
account and the accounts of other persons, at least the amount of
securities specified below (not less than $100 million), calculated as
provided in Rule 144A, as of the date specified below and had an
audited net worth of at least $25 million as of the end of our most
recent fiscal year. (This paragraph does not include bank commingled
funds, except as noted in (i)(E) above.)
[ ] (iii) One of a Family of Investment Companies. We are an investment
company registered under the Investment Company Act of 1940 that is
part of a "family of investment companies", as defined in Rule 144A,
that owned in the aggregate at least the amount of securities
specified below (not less than $100 million), calculated as provided
in Rule 144A, as of the date specified below.
[ ] (iv) We are a dealer registered under Section 15 of the Securities
Exchange Act of 1934, and we are one of the following.
[ ] (A) Dealer/QIB. We owned or invested on a discretionary
basis, for our own account and the accounts of other qualified
investment buyers, at least the amount of securities specified
below (not less than $10 million), calculated as provided in
Rule 144A, as of the date specified below.
[ ] (B) Dealer/Riskless Principal or Agent. We are acting either
on a riskless principal basis for simultaneous resale to a
qualified institutional buyer or as agent for one or more
qualified institutional buyers.
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[ ] (v) Entity Owned By Qualified Buyers. We are an entity, all of the
equity owners of which are qualified institutional buyers (each
satisfying one or more of (i) through (iv) above including, as
applicable, the $100 million test).
In calculating the amount of securities owned or invested by an entity
as provided in Rule 144A: (a) repurchase agreements, securities owned but
subject to repurchase agreements, currency, interest rate and commodity swaps,
bank deposit instruments, loan participations, securities of affiliates and
dealers' unsold allotments are excluded; and (b) securities are valued at cost,
except that they may be valued at market if they are reported in financial
statements at market and no current cost information is published.
Each entity, including a parent or subsidiary, must separately meet
the requirements to be a qualified institutional buyer under Rule 144A.
Securities owned by any subsidiary are included as owned or invested by its
parent entity for purposes of Rule 144A only if (1) the subsidiary is
consolidated in the parent entity's financial statements and (2) the
subsidiary's investments are managed under the parent entity's direction
(except that a subsidiary's securities are not included if the parent entity is
itself a majority-owned consolidated subsidiary of another enterprise and is
not a reporting company under the Securities Exchange Act of 1934).
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We further certify that we will purchase Bonds only for our own
account or for the account of another entity that is a qualified institutional
buyer including, if we are an insurance company, our separate accounts. We
will not purchase Bonds for another entity under Rule 144A unless it satisfies
one or more of paragraphs (i) through (v) above including, as applicable, the
$100 million test. We agree to notify you of any change in the certifications
herein, and each purchase by us of Bonds under Rule 144A from or through you
will constitute a reaffirmation of the certifications herein (as modified by
any such notice) as of the time of such purchase.
--------------------------------------------------------------
[Name of Entity (Print or Type)]
Amount of Securities $ By:
---------------------------- ----------------------------------------------------------
(specific amount owned/invested - may be
approximate, but not range or minimum) Name:
--------------------------------------------------------
(Print or Type)
Most Recent Fiscal Year-End: Title:
--------------------- -------------------------------------------------------
(Print or Type)
Date Owned/Invested: Address of Entity:
----------------- -------------------------------------------
(Complete only if this date is after most (Print or Type)
recent fiscal year-end)
Complete blanks as indicated
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ANNEX I
GLOSSARY
ANNEX-1
