Exhibit 4.3
EXECUTION COPY
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INDENTURE
by and between
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-2,
as the Issuer,
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but solely in its capacity
as the Indenture Trustee
Dated as of October 30, 2002
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CapitalSource Commercial Loan Trust 2002 - 2 Asset Backed Notes, Series 2002 - 2
Class A, Class B, Class C, Class D and Class E Notes
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ................................................................... 2
Section 1.01 Definitions ....................................................... 2
Section 1.02 Rules of Construction ............................................. 8
ARTICLE II THE NOTES ..................................................................... 9
Section 2.01 Form .............................................................. 9
Section 2.02 Execution, Authentication and Delivery ............................ 9
Section 2.03 Opinions of Counsel ............................................... 10
ARTICLE III COVENANTS ..................................................................... 10
Section 3.01 Collection of Payments on Loans; Trust Accounts ................... 10
Section 3.02 Maintenance of Office or Agency ................................... 11
Section 3.03 Money for Payments To Be Held in Trust; Paying Agent .............. 11
Section 3.04 Existence ......................................................... 12
Section 3.05 Payment of Principal and Interest ................................. 13
Section 3.06 Protection of Indenture Collateral ................................ 13
Section 3.07 Opinions as to Indenture Collateral ............................... 14
Section 3.08 Furnishing of Rule 144A Information ............................... 14
Section 3.09 Performance of Obligations; Sale and Servicing Agreement .......... 15
Section 3.10 Negative Covenants ................................................ 15
Section 3.11 Annual Statement as to Compliance ................................. 16
Section 3.12 Recording of Assignments .......................................... 16
Section 3.13 Representations and Warranties Concerning the Loans ............... 17
Section 3.14 Indenture Trustee's Review of Loan Files .......................... 17
Section 3.15 Indenture Collateral; Related Documents ........................... 17
Section 3.16 Amendments to Sale and Servicing Agreement ........................ 17
Section 3.17 Servicer as Agent and Bailee of Indenture Trustee ................. 18
Section 3.18 Investment Company Act ............................................ 18
Section 3.19 Issuer May Consolidate, etc., Only on Certain Terms ............... 18
Section 3.20 Successor or Transferee ........................................... 20
Section 3.21 No Other Business ................................................. 20
Section 3.22 No Borrowing ...................................................... 20
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TABLE OF CONTENTS
(continued)
PAGE
Section 3.23 Guarantees, Loans, Advances and Other Liabilities ................. 20
Section 3.24 Capital Expenditures .............................................. 21
Section 3.25 Representations and Warranties of the Issuer ...................... 21
Section 3.26 Restricted Payments ............................................... 23
Section 3.27 Notice of Events of Default ....................................... 23
Section 3.28 Further Instruments and Acts ...................................... 23
Section 3.29 Statements to Noteholders ......................................... 24
Section 3.30 Grant of Substitute Loans ......................................... 24
Section 3.31 Determination of Note Interest Rate ............................... 24
Section 3.32 Covenants of the Issuer Relating to Xxxxxx ........................ 24
Section 3.33 Payments from Obligor Lock-Boxes and Obligor Lock-Box
Accounts .......................................................... 26
Section 3.34 [Reserved] ........................................................ 27
ARTICLE IV THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE ............................ 27
Section 4.01 The Notes ......................................................... 27
Section 4.02 Registration of Transfer and Exchange of Notes .................... 27
Section 4.03 Mutilated, Destroyed, Lost or Stolen Notes ........................ 36
Section 4.04 Payment of Principal and Interest; Defaulted Interest ............. 37
Section 4.05 Tax Treatment ..................................................... 38
Section 4.06 Satisfaction and Discharge of Indenture ........................... 39
Section 4.07 Application of Trust Money ........................................ 39
Section 4.08 Repayment of Moneys Held by Paying Agent .......................... 40
ARTICLE V REMEDIES ...................................................................... 40
Section 5.01 Events of Default ................................................. 40
Section 5.02 Acceleration of Maturity; Rescission and Annulment ................ 41
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee ................................................. 42
Section 5.04 Remedies; Priorities .............................................. 44
Section 5.05 Optional Preservation of the Indenture Collateral ................. 46
Section 5.06 Limitation of Suits ............................................... 46
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.07 Unconditional Rights of Noteholders To Receive Principal
and Interest ...................................................... 47
Section 5.08 Restoration of Rights and Remedies ................................ 47
Section 5.09 Rights and Remedies Cumulative .................................... 48
Section 5.10 Delay or Omission Not a Waiver .................................... 48
Section 5.11 Control by Noteholders ............................................ 48
Section 5.12 Waiver of Past Defaults ........................................... 49
Section 5.13 Undertaking for Costs ............................................. 50
Section 5.14 Waiver of Stay or Extension Laws .................................. 50
Section 5.15 Sale of Indenture Collateral ...................................... 50
Section 5.16 Action on Notes ................................................... 52
Section 5.17 Performance and Enforcement of Certain Obligations ................ 52
ARTICLE VI THE INDENTURE TRUSTEE ......................................................... 53
Section 6.01 Duties of Indenture Trustee ....................................... 53
Section 6.02 Rights of Indenture Trustee ....................................... 54
Section 6.03 Individual Rights of Indenture Trustee ............................ 55
Section 6.04 Indenture Trustee's Disclaimer .................................... 55
Section 6.05 Notice of Event of Default ........................................ 55
Section 6.06 Reports by Indenture Trustee to Holders ........................... 55
Section 6.07 Compensation and Indemnity ........................................ 55
Section 6.08 Replacement of Indenture Trustee .................................. 56
Section 6.09 Successor Indenture Trustee by Merger ............................. 57
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee ................................................. 58
Section 6.11 Eligibility; Disqualification ..................................... 59
Section 6.12 [Reserved] ........................................................ 59
Section 6.13 Representations, Warranties and Covenants of Indenture
Trustee ........................................................... 59
Section 6.14 Directions to Indenture Trustee ................................... 60
Section 6.15 Conflicts ......................................................... 61
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS ................................................ 61
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TABLE OF CONTENTS
(continued)
PAGE
Section 7.01 Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders .................................................... 61
Section 7.02 Preservation of Information; Communications to
Noteholders ....................................................... 61
Section 7.03 Fiscal Year ....................................................... 62
ARTICLE VIII TRUST ACCOUNTS, DISBURSEMENTS AND RELEASES .................................... 62
Section 8.01 Collection of Money ............................................... 62
Section 8.02 Trust Accounts .................................................... 62
Section 8.03 Opinion of Counsel ................................................ 63
Section 8.04 Termination Upon Distribution to Noteholders ...................... 63
Section 8.05 Release of Indenture Collateral ................................... 63
Section 8.06 Surrender of Notes Upon Final Payment ............................. 64
ARTICLE IX SUPPLEMENTAL INDENTURES ....................................................... 64
Section 9.01 Supplemental Indentures Without Consent of Noteholders ............ 64
Section 9.02 Supplemental Indentures With Consent of Noteholders ............... 65
Section 9.03 Execution of Supplemental Indentures .............................. 67
Section 9.04 Effect of Supplemental Indenture .................................. 67
Section 9.05 [Reserved] ........................................................ 67
Section 9.06 Reference in Notes to Supplemental Indentures ..................... 67
ARTICLE X [RESERVED] .................................................................... 68
ARTICLE XI MISCELLANEOUS ................................................................. 68
Section 11.01 Compliance Certificates and Opinions, etc ......................... 68
Section 11.02 Form of Documents Delivered to Indenture Trustee .................. 69
Section 11.03 Acts of Noteholders ............................................... 70
Section 11.04 Notices, etc., to Indenture Trustee and Others .................... 70
Section 11.05 Notices to Noteholders; Waiver .................................... 71
Section 11.06 Alternate Payment and Notice Provisions ........................... 72
Section 11.07 [Reserved] ........................................................ 72
Section 11.08 Effect of Headings ................................................ 72
Section 11.09 Successors and Assigns ............................................ 72
Section 11.10 Severability ...................................................... 72
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TABLE OF CONTENTS
(continued)
PAGE
Section 11.11 Benefits of Indenture ............................................. 72
Section 11.12 Legal Holidays .................................................... 72
Section 11.13 GOVERNING LAW ..................................................... 73
Section 11.14 Counterparts ...................................................... 73
Section 11.15 [Reserved] ........................................................ 73
Section 11.16 Issuer Obligation ................................................. 73
Section 11.17 No Petition ....................................................... 73
Section 11.18 Inspection; Confidentiality ....................................... 74
Section 11.19 Limitation of Liability ........................................... 74
Section 11.20 Disclaimer and Subordination ...................................... 74
EXHIBITS
Exhibit A-1 -- Form of Class A Note
Exhibit A-2 -- Form of Class B Note
Exhibit A-3 -- Form of Class C Note
Exhibit A-4 -- Form of Class D Note
Exhibit A-5 -- Form of Class E Note
Exhibit B -- List of Loans
Exhibit C -- Form of Wiring Instructions
Exhibit D-1 -- Form of Transferee Letter [Non-Rule 144A]
Exhibit D-2 -- Form of Rule 144A Certification
Exhibit E -- Form of Transfer Certificate for Rule 144A Global Note to
Regulation S Global Note during Restricted Period
Exhibit F -- Form of Transfer Certificate for Rule 144A Global Note to
Regulation S Global Note after Restricted Period
Exhibit G -- Form of Transfer Certificate for Regulation S Global Note to
Rule 144A Global Note during Restricted Period
Exhibit H -- Form of Transfer Certificate for Regulation S Global Note
during Restricted Period
Exhibit I -- Form of Investor Certification
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INDENTURE
THIS INDENTURE, dated as of October 30, 2002 (as amended, modified,
restated, supplemented or waived from time to time, the "Indenture"), is by and
between CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-2, a Delaware statutory
trust, as the issuer (together with its successors and assigns in such capacity,
the "Issuer"), and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, not in its
individual capacity but solely in its capacity as the indenture trustee
(together with its successors and assigns, in such capacity, the "Indenture
Trustee").
Each party hereto agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Issuer's Notes and the
Hedge Counterparties.
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee, on behalf of and for
the benefit of the Holders of the Notes and the Hedge Counterparties, without
recourse, subject to the terms of this Indenture and the other Transaction
Documents, a continuing security interest in and lien on all of its right, title
and interest in and to all accounts, cash and currency, chattel paper,
electronic chattel paper, tangible chattel paper, copyrights, copyright
licenses, equipment, fixtures, general intangibles, instruments, commercial tort
claims, deposit accounts, inventory, investment property, letter of credit
rights, software, supporting obligations, accessions, and other property
consisting of, arising out of, or related to (i) the Loans and all other assets
included or to be included from time to time in the Loan Assets, whether now
existing or hereafter arising or acquired, other than the Retained Interest, if
any, as it may exist from time to time, (ii) all payments under any Xxxxxx, and
(iii) all present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts,
insurance proceeds, condemnation awards, rights to payment of any and every kind
and other forms of obligations and receivables, instruments and other property
which at any time constitute all or part of or are included in the proceeds of
any of the foregoing (collectively, the "Indenture Collateral").
The foregoing Grant is made in trust to secure (x) the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes and all other sums owing by the Issuer hereunder or under any other
Transaction Document or under any Hedge Transaction, and (y) to secure
compliance with the covenants and agreement in this Indenture, the Hedge and the
other Transaction Documents.
The Indenture Trustee, on behalf of the Noteholders and on behalf of the
Hedge Counterparties (1) acknowledges such Grant, and (2) accepts the trusts
under this Indenture in accordance with this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Noteholders and Hedge Counterparties may be adequately and
effectively protected.
1
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
Certain defined terms used throughout the Indenture are defined above or
in this Section 1.01. In addition, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms used but not
otherwise defined herein shall have the meanings given to such terms in the Sale
and Servicing Agreement (as defined below), which are incorporated by reference
herein.
"Accredited Investors" shall have the meaning specified in Rule 501(a)(1)-(3)
or (7) under the Securities Act.
"Aggregate Notional Amount" means, on any date, the aggregate notional amount in
respect of the payment obligations of the relevant Hedge Counterparty that is
outstanding on that date under all Hedge Transactions or any group thereof, as
the context requires.
"Applicable Procedures" has the meaning given to such term in subsection
4.02(j)(i).
"Authorized Newspaper" means a newspaper of general circulation in the Borough
of Manhattan, The City of New York, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays.
"Authorized Officer" means, with respect to any Person, any person who is
authorized to act for such Person in matters relating to the Transaction
Documents and whose action is binding upon such Person. With respect to the
Issuer, any officer of the Owner Trustee who is authorized to act for the Owner
Trustee in matters relating to the Issuer. With respect to the Trust Depositor
or the Servicer, initially those individuals the names of whom appear on the
lists of Authorized Officers delivered on the Closing Date (as such list may be
modified or supplemented from time to time thereafter). With respect to the
Indenture Trustee, the Chairman or Vice President of the Board of Directors or
Trustees, the Chairman or Vice Chairman of the Executive or Standing Committee
of the Board of Directors or Trustees, the President, the Chairman of the
Committee on Trust Matters, any vice president, any assistant vice president,
the Secretary, any assistant secretary, the Treasurer, any assistant treasurer,
the Cashier, any assistant cashier, any trust officer, the Controller and any
assistant controller or any other officer of the Indenture Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with particular subject.
"Beneficial Owner" means, with respect to a Note, the Person who is the
beneficial owner of such Note, as reflected on the books of the Depository or on
the books of a Person maintaining an account with such Depository (directly or
as an indirect participant, in accordance with the rules of such Depository), as
the case may be.
"CapitalSource" means CapitalSource Finance LLC, together with its successors
and assigns.
2
"Certificate Account" has the meaning given to such term in Section 5.01 of the
Trust Agreement.
"Certificate Registrar" means initially, the Indenture Trustee, and thereafter,
any successor appointed pursuant to the Trust Agreement.
"Class A Expected Maturity Date" means May 20, 2005.
"Class B Expected Maturity Date" means August 20, 2005.
"Class C Expected Maturity Date" means January 20, 2006.
"Class D Expected Maturity Date" means February 20, 2007.
"Clearstream" means Clearstream Banking, a societe anonyme, a limited liability
company organized under the laws of Luxembourg.
"Corporate Trust Office" means in the case of Owner Trustee: Wilmington Trust
Company, Xxx Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration and in the case of the Indenture Trustee: Xxxxx
Fargo Bank Minnesota, National Association, Sixth and Marquette Avenue, MAC
N9311-161, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services/Asset Backed Administration, or at such other address as the Owner
Trustee or the Indenture Trustee may designate from time to time by notice to
the Issuer, or the principal corporate trust officer of any successor Owner
Trustee or Indenture Trustee at the address designated by such successor by
notice to the Issuer.
"Credit Support Provider" means, in respect of a Hedge Counterparty, any Person
providing credit support on behalf of such Hedge Counterparty.
"Default" means any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
"Depository" means The Depository Trust Company or its successors or assigns.
"Depository Participant" means a Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited
with the Depository.
"Direct Participant" means any broker-dealer, bank or other financial
institution for whom the nominee of the Depository holds an interest in any
Note.
"DTC" means The Depository Trust Company, and its successors.
"DTC Custodian" means the Indenture Trustee as a custodian for DTC.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, or any successor legislation thereto and the regulations
promulgated and the rulings issued thereunder.
"Event of Default" has the meaning given to such term in Section 5.01.
3
"Fixed Rate Permitted Excess Amount" means, with respect to Fixed Rate Loans,
$250,000.
"Floating Prime Rate Permitted Excess Amount" means, with respect to Floating
Prime Rate Loans, $250,000.
"Global Note" means any Note registered in the name of the Depository or its
nominee, beneficial interests of which are reflected on the books of the
Depository or on the books of a Person maintaining any account with such
Depository (directly or as an indirect participant in accordance with the rules
of such Depository). The Global Note shall include the Rule 144A Global Notes
and the Regulation S Global Notes.
"Grant" means to mortgage, pledge, sell, bargain, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon and a security
interest in and right of set-off against, deposit, set over and confirm
pursuant to the Indenture. A Grant of Indenture Collateral or of any other
agreement or instrument shall include all rights, powers and options (but none
of the obligations) of the granting party thereunder, including the immediate
and continuing right to claim for, collect, receive and give receipt for
principal and interest payments in respect of such collateral or other agreement
or instrument and all other moneys payable thereunder, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring proceedings in the name of the
granting party or otherwise, and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with respect
thereto.
"Hedge" means each agreement between the Issuer and a Hedge Counterparty that
governs one or more Hedge Transactions, which agreement shall consist of a
"Master Agreement" in a form published by the International Swaps and
Derivatives Association, Inc., together with a "Schedule" and "Credit Support
Annex", and each "Confirmation" thereunder confirming the specific terms of each
such Hedge Transaction.
"Hedge Counterparty" means Wachovia Bank, National Association or any other
Qualified Hedge Counterparty that agrees that in the event that it or its Credit
Support Provider fails to maintain certain ratings as provided in the applicable
Hedge, then the Hedge Counterparty shall (i) transfer all of its rights and
obligations under the Hedge to a Substitute Hedge Counterparty as provided in
the Hedge or (ii) post collateral, as applicable, as provided in the Hedge.
"Hedge Transactions" has the meaning given to such term in the Sale and
Servicing Agreement.
"Indenture Collateral" has the meaning given to such term in the Granting
Clauses.
"Indenture Trustee" has the meaning given to such term in the Preamble.
"Indirect Participant" means any financial institution for whom any Direct
Participant holds an interest in any Note.
"Individual Note" means any Note registered in the name of a holder other than
the Depository or its nominee.
"Initial Purchaser" means Wachovia Securities, Inc., or any successor thereto.
4
"Institutional Accredited Investor" means any Person meeting the requirements of
Rule 501 (a) (1)-(3) or (7) of Regulation D under the Securities Act.
"Issuer Order" means a written order or request signed in the name of the Issuer
by any one of its Authorized Officers and delivered to the Indenture Trustee or
by the Servicer on behalf of the Issuer.
"Legal Final Maturity Date" means September 20, 2010.
"Letter of Representations" means the Letter of Representations, dated as of
October 30, 2002, by and among the Issuer, the Indenture Trustee and the
Depository.
"Note Register" has the meaning given to such term in subsection 4.02(a).
"Note Registrar" has the meaning given to such term in subsection 4.02(a).
"Outstanding" means as of the date of determination, all Notes theretofore
executed, authenticated and delivered under the Indenture except:
(i) Notes in exchange for or in lieu of which other Notes have been
executed, authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a holder in due course; and
(ii) Notes theretofore canceled by the Note Registrar or delivered
to the Indenture Trustee for cancellation.
"Owner" means each Holder of a Note.
"Owner Trustee" means Wilmington Trust Company, not in its individual capacity
but solely as owner trustee under the Trust Agreement, and any successor Owner
Trustee thereunder.
"Participant" means a Person that has an account with DTC.
"Paying Agent" means, with respect to the Notes, any paying agent or co - paying
agent appointed pursuant to Section 3.03 of the Indenture, which initially shall
be the Indenture Trustee. With respect to the Trust Certificates, any paying
agent or co - paying agent appointed pursuant to Section 3.09 of the Trust
Agreement which initially shall be Xxxxx Fargo Bank Minnesota, National
Association.
"Percentage Interest" means, with respect to a Class A Note, Class B Note, Class
C Note, Class D Note or Class E Note, the fraction, expressed as a percentage,
the numerator of which is the denomination represented by such Class A Note,
Class B Note, Class C Note, Class D Note or Class E Note and the denominator of
which is the Initial Class A Principal Balance, the Initial Class B Principal
Balance, the Initial Class C Principal Balance, the Initial Class D Principal
Balance or the Initial Class E Principal Balance, as the case may be. With
respect to a Trust Certificate, the percentage set forth on the face thereof.
"Plan" has the meaning given to such term in subsection 4.02(t).
5
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Qualified Institutional Buyer" has the meaning given to such term in Rule 144A
under the Securities Act.
"Qualified Hedge Counterparty" means a party that is a recognized dealer in
interest rate swaps and interest rate caps, organized under the laws of the
United States or a jurisdiction located therein (or another jurisdiction
reasonably acceptable to the Issuer and each Rating Agency), that with respect
to itself or its Credit Support Provider: (a) at the time it becomes a Hedge
Counterparty has a short-term rating of at least "A-1" by S&P (for so long as
any Class A Notes, Class B Notes or Class C Notes are deemed Outstanding
hereunder and are rated by S&P), and "F-1" by Fitch (for so long as any Class A
Notes, Class B Notes, Class C Notes or Class D Notes are deemed Outstanding
hereunder and are rated by Fitch) and either a long-term senior unsecured debt
rating of at least "Aa3" by Xxxxx'x (if such Person does not have a "P-1"
short-term debt rating by Xxxxx'x) or a long-term senior unsecured debt rating
of "A1" by Xxxxx'x (only if the short-term debt of such Person is rated "P-1" by
Xxxxx'x) (for so long as any Class A Notes, Class B Notes or Class C Notes are
deemed Outstanding hereunder and are rated by Xxxxx'x) and thereafter maintains
a short-term rating of at least "A-1" by S&P (for so long as any Class A Notes,
Class B Notes or Class C Notes are deemed Outstanding hereunder and are rated by
S&P), and "F-2" by Fitch (for so long as any Class A Notes, Class B Notes, Class
C Notes or Class D Notes are deemed Outstanding hereunder and are rated by
Fitch) and either a long-term senior unsecured debt rating of at least "A1" by
Xxxxx'x (if such Person does not have a "P-1" short-term debt rating by Xxxxx'x)
or a long-term senior unsecured debt rating of at least "A3" by Xxxxx'x (only if
the short-term debt of such Person is rated "P-1" by Xxxxx'x) (for so long as
any Class A Notes, Class B Notes or Class C Notes are deemed Outstanding
hereunder and are rated by Xxxxx'x); (b) legally and effectively accepts the
rights and obligations under the applicable Hedge, or, as the case may be,
alternate credit support arrangements pursuant to a written agreement reasonably
acceptable to the Issuer and (c) in connection with a Substitute Hedge
Counterparty, otherwise satisfies the Rating Agency Condition.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Notes" means the Notes sold in offshore transactions in
reliance on Regulation S and represented by one or more Global Notes deposited
with the Indenture Trustee as custodian for the Depository.
"Regulation S Investor" means, with respect to a transferee of a Regulation S
Global Note pursuant to Regulation S.
"Restricted Period" means the forty (40) day period prescribed by Regulation S
commencing on the later of (a) the date upon which Notes are first offered to
Persons other than the Initial Purchaser and any other distributor (as such term
is defined in Regulation S) of the Notes and (b) the Closing Date.
6
"Rule 144A Certification" means a letter substantially in the form attached to
the Indenture as Exhibit D-2.
"Rule 144A Global Notes" means the Notes sold within the United States to U.S.
Persons, initially issued to Qualified Institutional Buyers in the form of
beneficial interests in one or more Global Notes, deposited with the Indenture
Trustee as custodian for the Depository.
"Sale" has the meaning given to such term in Section 5.15.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement, dated as
of October 30, 2002, by and among CapitalSource Commercial Loan Trust 2002-2,
as the Trust, CapitalSource Commercial Loan LLC, 2002-2, as the Trust
Depositor, CapitalSource Finance LLC, as the Originator and as the Servicer, and
Xxxxx Fargo Bank Minnesota, National Association, as the Indenture Trustee and
the Backup Servicer.
"Securities Legend" "THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS
NOTE, AGREES THAT THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF
LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")
TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT
OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT
THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF RULE 501 (a)(1)-(3) OR (7) UNDER THE SECURITIES ACT) PURCHASING
FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN
EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE
INDENTURE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS OR IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION,
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANOTHER EXEMPTION
AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (5) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE
OF THIS NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT
IS NOT, AND IS NOT PURCHASING THIS NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO
TITLE I OF ERISA
7
AND/OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS DEFINED IN SECTION
3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA FOR WHICH
NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE) THAT IS SUBJECT TO
ANY FEDERAL, STATE, OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS
OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR (II) XXXX 00-00, XXXX
00-00, XXXX 00-00, XXXX 00-0, XXXX 84-14 OR SOME OTHER PROHIBITED TRANSACTION
EXEMPTION IS APPLICABLE TO THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE BY
THE ACQUIRER."
"Series" means 2002 - 2.
"Servicer's Certificate" means the certificate as defined in Section 9.02 of the
Sale and Servicing Agreement.
"Substitute Hedge Counterparty" means any substitute or replacement swap
counterparty under a Hedge.
"Termination Price" means the price calculated in accordance with Section 10.01
of the Sale and Servicing Agreement.
"Transfer" has the meaning given to such term in subsection 4.02(r).
"Transferee Letter" means the letter set forth in Exhibit D-1 to the
Indenture.
"Trust Certificate" means a certificate evidencing the beneficial interest of a
Certificateholder in the Issuer, substantially in the form of Exhibit A attached
to the Trust Agreement.
"Trust Company" means Wilmington Trust Company (and any successor thereto or
assign thereof), in its individual capacity, and any other Person who shall act
as Owner Trustee under the Trust Agreement, in its individual capacity.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as amended
from time to time, as in effect on any relevant date.
"U.S. Person" means a person that is a citizen or resident of the United
States, a corporation or partnership (except as provided in applicable Treasury
regulations) created or organized in or under the laws of the United States, any
State or the District of Columbia, including any entity treated as a corporation
or partnership for federal income tax purposes, an estate whose income is
subject to United States federal income tax regardless of its source, or a trust
if a court within the United States is able to exercise primary supervision over
the administration of such trust, and one or more such U.S. Persons have the
authority to control all substantial decisions of such trust (or, to the extent
provided as applicable Treasury regulations, certain trusts in existence on
August 20, 1996 which are eligible to elect to be treated as a U.S. Person).
SECTION 1.02 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
8
(i) a term has the meaning given to it;
(ii) an accounting term not otherwise defined has the meaning given
to it in accordance with generally accepted accounting principles as in
effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the plural
include the singular;
(vi) any pronouns shall be deemed to cover all genders; and
(vii) any agreement, instrument or statute defined or referred to
herein or in any instrument or certificate delivered in connection
herewith means such agreement, instrument or statute as from time to time
amended, modified, waived or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.
ARTICLE II
THE NOTES
SECTION 2.01 FORM.
The Notes, together with the Indenture Trustee's certificate of
authentication, shall be in substantially the forms set forth as Exhibits X-0,
X-0, X-0, X-0 and A-5 to this Indenture with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the appropriate Authorized Officers
executing such Notes, as evidenced by their execution of the Notes. Any portion
of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the Authorized Officers executing such Notes, as
evidenced by their execution of such Notes.
The terms of the Notes set forth in Exhibits X-0, X-0, X-0, X-0 and A-5
are part of the terms of this Indenture.
SECTION 2.02 EXECUTION, AUTHENTICATION AND DELIVERY.
The Notes shall be executed on behalf of the Issuer by any of its
Authorized Officers. The signature of any such Authorized Officer on the Notes
may be manual or facsimile.
9
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon receipt of an Issuer Order authenticate
and deliver Class A Notes for original issue in an aggregate amount equal to the
Initial Class A Principal Balance, Class B Notes for original issue in an
aggregate amount equal to the Initial Class B Principal Balance, Class C Notes
for original issue in an aggregate amount equal to the Initial Class C Principal
Balance, Class D Notes for original issue in an aggregate amount equal to the
Initial Class D Principal Balance and a Class E Note for original issue in an
aggregate amount equal to the Initial Class E Principal Balance.
Each Note shall be dated the date of its authentication. The Notes shall
be issuable as registered Notes in the minimum initial denominations of
$1,000,000 and in integral multiples of $1,000 in excess thereof; provided,
however, that one Note of each Class may be issued in a different denomination.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note 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 signatories,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.03 OPINIONS OF COUNSEL.
On the Closing Date, the Indenture Trustee shall have received: (i) an
Opinion of Counsel, with respect to securities law matters; (ii) an Opinion of
Counsel, with respect to the tax status of the arrangement created by this
Indenture and the tax treatment of the Class A Notes, the Class B Notes and the
Class C Notes; and (iii) an Opinion of Counsel to the Issuer, with respect to
the due authorization, valid execution and delivery of this Indenture and with
respect to its binding effect on the Issuer. In addition, prior to the transfer
of any Class D Notes by the initial Class D Noteholder thereof, the Indenture
Trustee shall have received an Opinion of Counsel regarding the treatment of
such Class D Notes as debt for federal income tax purposes.
ARTICLE III
COVENANTS
SECTION 3.01 COLLECTION OF PAYMENTS ON LOANS; TRUST ACCOUNTS.
The Servicer shall establish with the Indenture Trustee and cause to be
maintained each of the Trust Accounts specified in Section 7.01 of the Sale and
Servicing Agreement. The Indenture Trustee shall ensure that each of the Trust
Accounts is established and maintained as an Eligible Deposit Account with a
Qualified Institution. If any institution with which any of the Trust Accounts
established pursuant to subsection 7.01(a) of the Sale and Servicing Agreement
are established ceases to be a Qualified Institution, the Servicer, or if the
Servicer fails to do so, the Indenture Trustee (as the case may be) shall within
ten (10) Business Days establish a
10
replacement account at a Qualified Institution after notice of such event. The
Indenture Trustee shall make all payments of principal of and interest on the
Notes, subject to Section 3.03 and as provided in Section 3.05 herein from
moneys on deposit in the Note Distribution Account.
SECTION 3.02 MAINTENANCE OF OFFICE OR AGENCY.
The Issuer will maintain with the Indenture Trustee an office or agency
where, subject to satisfaction of conditions set forth herein, Notes may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially appoints the Indenture Trustee to serve as
its agent for the foregoing purposes. The Issuer will give prompt written notice
to the Indenture Trustee of the location, and of any change in the location, of
any such office or agency. If at any time the Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Indenture Trustee, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.03 MONEY FOR PAYMENTS TO BE HELD IN TRUST; PAYING AGENT.
As provided in Section 3.01, all payments of amounts due and payable with
respect to any Notes or Xxxxxx that are to be made from amounts withdrawn from
the Note Distribution Account pursuant to Section 3.01 shall be made on behalf
of the Issuer by the Indenture Trustee or by another Paying Agent, and no
amounts so withdrawn from the Note Distribution Account for payments of Notes or
any Xxxxxx shall be paid over to the Issuer except as provided in this Section
3.03.
On or before the Business Day immediately preceding each Remittance Date,
the Issuer shall deposit or cause to be deposited in the Note Distribution
Account an aggregate sum sufficient to pay the amounts then becoming due, such
sum to be held in trust for the benefit of the Persons entitled thereto and
(unless the Paying Agent is the Indenture Trustee) shall promptly notify the
Indenture Trustee in writing of its action or failure so to act.
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 3.03, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes or the Xxxxxx 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;
(ii) give the Indenture Trustee notice of any default by the Issuer
in the making of any payment required to be made with respect to the Notes
or the Xxxxxx;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
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(iv) immediately resign as Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes or
the Xxxxxx if at any time it ceases to meet the standards required to be
met by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes or the Xxxxxx of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent 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 the 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.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two (2)
years after such amount has become due and payable shall be discharged from such
trust and be paid to the Issuer on an Issuer Order; and the Holder of such Note
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; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
an Authorized Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than thirty (30) days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer. The Indenture Trustee shall also adopt
and employ, at the expense and direction of the Issuer, any other reasonable
means of notification of such repayment (including, but not limited to, mailing
notice of such repayment to Holders whose Notes have been called but have not
been surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Holder).
SECTION 3.04 EXISTENCE.
The Issuer will keep in full effect its existence, rights and franchises
as a statutory trust under the laws of the State of Delaware (unless it becomes,
or any successor Issuer hereunder is or becomes, organized under the laws of any
other state or of the United States, in which case the Issuer will keep in full
effect its existence, rights and franchises under the laws of such other
jurisdiction) and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Notes, the
Xxxxxx, the other Transaction Documents, the Indenture Collateral and each other
instrument or agreement included in the Indenture Collateral.
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SECTION 3.05 PAYMENT OF PRINCIPAL AND INTEREST.
The Issuer will duly and punctually pay (i) the principal of and interest
on the Notes in accordance with the terms of such Notes, this Indenture and the
Sale and Servicing Agreement and (ii) all amounts payable under the Xxxxxx in
accordance with the terms thereof. The Issuer will cause to be distributed all
amounts on deposit in the Note Distribution Account on a Remittance Date
deposited therein pursuant to the Sale and Servicing Agreement for the benefit
of the Notes, to the applicable Noteholders, and for the benefit of the Xxxxxx,
to the applicable Hedge Counterparties. Amounts properly withheld under the Code
or any applicable state law by any Person from a payment to any Noteholder of
interest and/or principal shall be considered as having been paid by the Issuer
to such Noteholder for all purposes of this Indenture.
SECTION 3.06 PROTECTION OF INDENTURE COLLATERAL.
(a) The Issuer intends the security interest Granted pursuant to this
Indenture in favor of the Indenture Trustee on behalf of the Noteholders and the
Hedge Counterparties to be prior to all other liens in respect of the Indenture
Collateral, and the Issuer shall take or shall cause the Servicer to take all
actions necessary to obtain and maintain, for the benefit of the Indenture
Trustee on behalf of the Noteholders and the Hedge Counterparties, a first lien
on and a first priority, perfected security interest in the Indenture
Collateral. In connection therewith, pursuant to Section 2.06 of the Sale and
Servicing Agreement, the Issuer shall cause to be delivered into the possession
of the Indenture Trustee as pledgee hereunder, indorsed in blank, any
"instruments" (within the meaning of the UCC), not constituting part of chattel
paper, evidencing any Loan which is part of the Indenture Collateral and all
other portions of the Loan Files. The Indenture Trustee acknowledges and agrees
that (i) it holds the Loan Assets delivered to it under the Sale Agreement for
the benefit of the Trust Depositor, (ii) it holds the Loan Assets delivered to
it under the Sale and Servicing Agreement for the benefit of the Trust, and
(iii) it holds the Indenture Collateral delivered to it pursuant to this
Indenture for the benefit of the Noteholders and the Hedge Counterparties. The
Indenture Trustee agrees to maintain continuous possession of such delivered
instruments and the Loan Files as pledgee hereunder until this Indenture shall
have terminated in accordance with its terms or until, pursuant to the terms
hereof or of the Sale and Servicing Agreement, the Indenture Trustee is
otherwise authorized to release such instrument from the Indenture Collateral.
The Servicer, on behalf of the Issuer, will from time to time prepare (or shall
cause to be prepared), 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
necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iii) enforce any of the Loans transferred to the Issuer as and to
the extent commercially reasonable; or
13
(iv) preserve and defend title to the Indenture Collateral and the
rights of the Indenture Trustee, the Noteholders and the Hedge
Counterparties in such Indenture Collateral against the claims of all
persons and parties.
(b) Except as otherwise provided in or permitted by the Sale and Servicing
Agreement or this Indenture, the Indenture Trustee shall not remove any portion
of the Indenture Collateral that consists of money or is evidenced by an
instrument, certificate or other writing from the jurisdiction in which it was
held at the date of the most recent Opinion of Counsel delivered pursuant to
Section 3.07 (or from the jurisdiction in which it was held as described in the
Opinion of Counsel delivered at the Closing Date pursuant to subsection 3.07(a),
if no Opinion of Counsel has yet been delivered pursuant to subsection 3.07(b))
unless the Indenture Trustee shall have first received an Opinion of Counsel 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.
The Issuer hereby designates the Indenture Trustee its agent and attorney
-in-fact to execute any financing statement, continuation statement or other
instrument required to be executed pursuant to this Section 3.06.
SECTION 3.07 OPINIONS AS TO INDENTURE COLLATERAL.
(a) On or before the Closing Date, the Issuer shall furnish to the
Indenture Trustee and Hedge Counterparties an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect to
the delivery of the Underlying Notes and any other requisite documents, and with
respect to the execution and filing of any financing statements and continuation
statements, as are necessary to perfect and make effective the lien and security
interest of this Indenture and reciting the details of such action, or stating
that, in the opinion of such counsel, no such action is necessary to make such
lien and security interest effective.
(b) On or before December 31 in each calendar year, beginning in 2002, the
Servicer on behalf of the Issuer will furnish to the Indenture Trustee and Hedge
Counterparties an Opinion of Counsel at the expense of the Issuer either stating
that, in the opinion of such counsel, such action has been taken with respect to
any other requisite documents and with respect to the execution and filing of
any financing statements and continuation statements as is necessary to maintain
the perfection of the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain the perfection of such lien and
security interest. Such Opinion of Counsel shall also describe any other
requisite documents and the execution and filing of any financing statements and
continuation statements that will, in the opinion of such counsel, be required
to maintain the lien and security interest of this Indenture until December 31
in the following calendar year.
SECTION 3.08 FURNISHING OF RULE 144A INFORMATION.
The Issuer will furnish, upon the written request of any Noteholder or of
any owner of a beneficial interest therein, such information as is specified in
paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder or
beneficial owner, (ii) to a prospective
14
purchaser of such Note or interest therein who is a Qualified Institutional
Buyer designated by such Noteholder or beneficial owner, or (iii) to the
Indenture Trustee for delivery to such Noteholder, beneficial owner or
prospective purchaser, in order to permit compliance by such Noteholder or
beneficial owner with Rule 144A in connection with the resale of such Note or
beneficial interest therein by such Noteholder or beneficial owner in reliance
on Rule 144A unless, at the time of such request, the Issuer is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, or exempt
from reporting pursuant to Rule 12g3-2(b) under the Exchange Act.
SECTION 3.09 PERFORMANCE OF OBLIGATIONS; SALE AND SERVICING AGREEMENT.
(a) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Transaction Documents and in the
instruments and agreements included in the Indenture Collateral.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, the Transaction Documents and in the
instruments and agreements included in the Indenture Collateral, and any
performance of such duties by a Person identified to the Indenture Trustee in an
Officer's Certificate of the Issuer shall be deemed to be action taken by the
Issuer. Initially, the Issuer has contracted with the Servicer to assist the
Issuer in performing its duties under this Indenture, the Transaction Documents
and in the instruments and agreements included in the Indenture Collateral.
(c) The Issuer will not take any action or permit any action to be taken
by others which would release any Person from any of such Person's covenants or
obligations under any of the documents relating to the Loans or under any
instrument included in the Indenture Collateral, or which would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any of the documents relating to the Loans or
any such instrument, except such actions as the Servicer is expressly permitted
to take in the Transaction Documents.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default, the Issuer shall promptly notify in writing the Indenture Trustee, each
Hedge Counterparty and the Rating Agencies thereof, and shall specify in such
notice the action, if any, the Issuer is taking in respect of such Servicer
Default. If such Servicer Default arises from the failure of the Servicer to
perform any of its duties or obligations under the Sale and Servicing Agreement
with respect to the Loans, the Issuer may remedy such failure. So long as any
such Servicer Default shall be continuing, the Indenture Trustee may exercise
its remedies set forth in Section 8.02 of the Sale and Servicing Agreement.
Unless granted or permitted by the Holders of the Notes and the Hedge
Counterparties to the extent provided above, the Issuer may not waive any such
Servicer Default or terminate the rights and powers of the Servicer under the
Sale and Servicing Agreement.
SECTION 3.10 NEGATIVE COVENANTS.
So long as any Notes are Outstanding, the Issuer shall not:
15
(i) except as expressly permitted by this Indenture or any other
Transaction Document, sell, transfer, exchange or otherwise dispose of the
Indenture Collateral, unless directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former Noteholder or Hedge
Counterparty by reason of the payment of the taxes levied or assessed upon
any part of the Indenture Collateral;
(iii) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person
to be released from any covenants or obligations with respect to the Notes
or Xxxxxx under this Indenture except as may be expressly permitted
hereby, permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance (other than the lien of this Indenture or
any other Transaction Document) to be created on or extend to or otherwise
arise upon or burden the Indenture Collateral or any part thereof or any
interest therein or the proceeds thereof or permit the lien of this
Indenture not to constitute a valid first priority security interest in
the Indenture Collateral; or
(iv) except as contemplated in the Transaction Documents, dissolve
or liquidate in whole or in part.
SECTION 3.11 ANNUAL STATEMENT AS TO COMPLIANCE.
The Issuer will deliver to the Indenture Trustee, the Hedge Counterparties
and the Rating Agencies, within ninety (90) days after the end of each calendar
year (commencing with the calendar year ending 2002), an Officer's Certificate
stating, as to the Person signing such Officer's Certificate, that:
(i) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under such Person's
supervision or direction; and
(ii) to the best of such Person's knowledge, based on such review,
the Issuer has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been such a default in
its compliance with any such condition or covenant, specifying each such
default known to such Person and the nature and status thereof.
SECTION 3.12 RECORDING OF ASSIGNMENTS.
The Issuer shall submit or cause to be submitted for recording all
Assignments of Mortgages within the time period set forth in the Sale and
Servicing Agreement.
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SECTION 3.13 REPRESENTATIONS AND WARRANTIES CONCERNING THE LOANS.
The Issuer has pledged to the Indenture Trustee for the benefit of the
Noteholders and the Hedge Counterparties all of its rights under the Sale
Agreement and the Sale and Servicing Agreement and the Indenture Trustee has the
benefit of the representations and warranties made by the Originator and the
Trust Depositor in such documents concerning the Loans transferred into the Loan
Assets and the right to enforce any remedy against the Originator and the Trust
Depositor provided in the Sale Agreement and the Sale and Servicing Agreement,
to the same extent as though such representations and warranties were made
directly to the Indenture Trustee.
SECTION 3.14 INDENTURE TRUSTEE'S REVIEW OF LOAN FILES.
The Indenture Trustee agrees, for the benefit of the Noteholders and the
Hedge Counterparties, to review the Loan Files as provided in Section 2.08 of
the Sale and Servicing Agreement.
SECTION 3.15 INDENTURE COLLATERAL; RELATED DOCUMENTS.
(a) When instructed to do so by the Issuer or the Servicer, the Indenture
Trustee shall execute instruments to release property from the lien of this
Indenture, 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 or the Sale and Servicing Agreement. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article III
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) In order to facilitate the servicing of the Loans, the Indenture
Trustee authorizes the Servicer in the name and on behalf of the Indenture
Trustee and the Issuer, to perform its respective duties and obligations under
the Sale and Servicing Agreement and the Indenture Trustee agrees to perform its
obligations thereunder in accordance with the terms thereof.
(c) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and after terminating of each Hedge and payment of all amounts
payable thereunder in connection with such termination, including Hedge Breakage
Costs, release all of the Indenture Collateral to the Issuer (other than any
cash held for the payment of the Notes or the Xxxxxx pursuant to Section 3.03 or
4.06), subject, however, to the rights of the Indenture Trustee under Section
6.07.
SECTION 3.16 AMENDMENTS TO SALE AND SERVICING AGREEMENT.
The Indenture Trustee may enter into any amendment or supplement to the
Sale and Servicing Agreement only in accordance with Section 13.01 of the Sale
and Servicing Agreement. The Indenture Trustee may, in its reasonable
discretion, decline to enter into or consent to any such supplement or amendment
if its own rights, duties or immunities shall be adversely affected in any
material respect.
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SECTION 3.17 SERVICER AS AGENT AND BAILEE OF INDENTURE TRUSTEE.
(a) Solely for purposes of perfection under Section 9-313 of the UCC or
other similar applicable law, rule or regulation of the state in which such
property is held by the Servicer, the Indenture Trustee hereby acknowledges that
the Servicer is acting as agent and bailee of the Indenture Trustee in holding
amounts on deposit in the Principal and Interest Accounts pursuant to Section
7.01 of the Sale and Servicing Agreement, as well as its agent and bailee in
holding any documents released to the Servicer pursuant to the Sale and
Servicing Agreement, and any other items constituting a part of the Indenture
Collateral which from time to time come into the possession of the Servicer. It
is intended that, by the Servicer's execution and delivery of the Sale and
Servicing Agreement, the Indenture Trustee, as a secured party, will be deemed
to have possession of such documents, such moneys and such other items for
purposes of Section 9 - 313 of the UCC of the state in which such property is
held by the Servicer.
(b) Solely for purposes of perfection under Section 9-313 of the UCC or
other similar applicable law, rule or regulation of the state in which such
property is held by the Indenture Trustee, if the transfer of the Loans and the
other assets in the Indenture Collateral by the Trust Depositor to the Issuer is
deemed to be a loan, the Indenture Trustee hereby acknowledges it is acting as
agent and bailee of the Issuer in holding items constituting a part of the
Indenture Collateral which from time to time come into the possession of the
Indenture Trustee.
SECTION 3.18 INVESTMENT COMPANY ACT.
The Issuer shall not be required to register as an "investment company"
under the Investment Company Act of 1940, as amended (or any successor or
amendatory statute).
SECTION 3.19 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States or any state or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee and each Hedge
Counterparty, in form satisfactory to the Indenture Trustee and the Hedge
Counterparties, the due and punctual payment of the principal of and
interest on all Notes and all amounts payable under the Xxxxxx and the
performance or observance of every agreement and covenant of this
Indenture, the Xxxxxx, the Trust Certificates and each other Transaction
Document on the part of the Issuer to be performed or observed, all as
provided herein and therein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
18
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee and the Hedge
Counterparties) to the effect that such transaction will not have any
material adverse tax consequence to the Issuer, any Noteholder, any Hedge
Counterparty and any Certificateholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee and
each Hedge Counterparty an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions precedent
herein provided for relating to such transaction have been complied with.
(b) Except as otherwise permitted hereunder or under the Transaction
Documents, the Issuer shall not convey or transfer all or substantially all of
its properties or assets, including those included in the Indenture Collateral,
to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall be a United States citizen or a Person organized
and existing under the laws of the United States or any state, expressly
assumes, by an indenture supplemental hereto, executed and delivered to
the Indenture Trustee and each Hedge Counterparty, in form and substance
reasonably satisfactory to the Indenture Trustee and the Hedge
Counterparties, the due and punctual payment of the principal of and
interest on all Notes, the amounts payable under the Xxxxxx and each other
Transaction Document, and the performance or observance of every agreement
and covenant of this Indenture and the Xxxxxx on the part of the Issuer to
be performed or observed, all as provided herein, expressly agrees by
means of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights of
the Holders of the Notes and the Hedge Counterparties, unless otherwise
provided in such supplemental indenture, expressly agrees to indemnify,
defend and hold harmless the Issuer against and from any loss, liability
or expense arising under or related to this Indenture and the Notes;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee and each Hedge
Counterparty) to the effect that such transaction will not have any
material adverse tax consequence to the Issuer, any Noteholder, any Hedge
Counterparty and any Certificateholder;
(v) any action that is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
19
(vi) the Issuer shall have delivered to the Indenture Trustee and
each Hedge Counterparty an Officer's Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such supplemental
indenture comply with this Article III and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 3.20 SUCCESSOR OR TRANSFEREE.
(a) Upon any consolidation or merger of the Issuer in accordance with
subsection 3.19(a), the Person formed by or surviving such consolidation or
merger (if other than the Issuer) shall succeed to, and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all or substantially all of the
assets and properties of the Issuer pursuant to subsection 3.19(b), the Issuer
will be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes or the
Xxxxxx immediately upon the delivery of written notice to the Indenture Trustee
stating that the Issuer is to be so released.
SECTION 3.21 NO OTHER BUSINESS.
The Issuer shall not engage in any business other than financing,
purchasing, owning, selling, managing and enforcing the Loans in the manner
contemplated by this Indenture and the Transaction Documents, issuing the Notes
and the Trust Certificates and entering into and performing its obligations
under the Xxxxxx and all activities incidental thereto.
SECTION 3.22 NO BORROWING.
The Issuer shall not issue, incur, assume, guarantee or otherwise become
liable, directly or indirectly, for any indebtedness except for the Notes, the
Xxxxxx and any other indebtedness permitted by the Transaction Documents. The
proceeds from the initial sale of the Notes and the Trust Certificates shall be
used exclusively to fund the Issuer's purchase of the Loans and other assets
specified in the Sale and Servicing Agreement, to fund the Reserve Fund and to
pay the transactional expenses of the Issuer.
SECTION 3.23 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES.
Except as contemplated by this Indenture or the other Transaction
Documents, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
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SECTION 3.24 CAPITAL EXPENDITURES.
The Issuer shall not make any expenditure (by long-term or operating
lease or otherwise) for capital assets (either realty or personalty).
SECTION 3.25 REPRESENTATIONS AND WARRANTIES OF THE ISSUER.
The Issuer represents and warrants as follows:
(a) Power and Authority. It has full power, authority and legal right to
execute, deliver and perform its obligations as Issuer under this Indenture and
the Notes (the foregoing documents, the "Issuer Documents") and under each of
the other Transaction Documents to which the Issuer is a party.
(b) Due Authorization and Binding Obligation. The execution and delivery
of the Issuer Documents and the Transaction Documents to which the Issuer is a
party, and the consummation of the transactions provided for therein have been
duly authorized by all necessary action on its part. Each of the Issuer
Documents and the other Transaction Documents to which the Issuer is a party
constitutes the legal, valid and binding obligation of the Issuer and is
enforceable in accordance with its terms, except as enforcement of such terms
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and by the availability of equitable
remedies.
(c) No Conflict. The execution and delivery of the Issuer Documents and
the other Transaction Documents to which the Issuer is a party, the performance
of the transactions contemplated thereby and the fulfillment of the terms
thereof will not conflict with, result in any breach of any of the materials
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Issuer is a party or by which it or any
of its property is bound.
(d) No Violation. The execution and delivery of the Issuer Documents and
the other Transaction Documents to which the Issuer is a party, the performance
of the transactions contemplated thereby and the fulfillment of the terms
thereof will not conflict with or violate, in any material respect, any
Requirements of Law applicable to the Issuer.
(e) All Consents Required. All approvals, authorizations, consents, orders
or other actions of any Person or any Governmental Authority required in
connection with the execution and delivery of the Issuer Documents and the other
Transaction Documents to which the Issuer is a party, the performance of the
transactions contemplated thereby and the fulfillment of the terms thereof have
been obtained.
(f) No Proceedings. No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending, or to the
knowledge of the Issuer, threatened, against the Issuer or any of its respective
properties or with respect to the Issuer Documents or any other Transaction
Document to which the Issuer is a party that, if adversely determined, would
have a material adverse effect on the business, properties, assets or condition
21
(financial or otherwise) of the Issuer or the transactions contemplated by the
Issuer Documents or any of the other Transaction Documents to which the Issuer
is a party.
(g) Organization and Good Standing. The Issuer is a statutory trust duly
organized, validly existing and in good standing under the laws of Delaware and
has the requisite power to own its assets and to transact the business in which
it is currently engaged, and had at all relevant times, and now has, all
necessary power, authority and legal right to acquire, own and pledge the
Indenture Collateral.
(h) 1940 Act. The Issuer is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(i) Location. The Issuer is located (within the meaning of Article 9 of
the UCC) in Delaware. The Issuer agrees that it will not change its location
(within the meaning of Article 9 of the UCC) without at least thirty (30) days
prior written notice to the Originator, the Servicer, the Indenture Trustee and
the Rating Agencies.
(j) Security Interest in Collateral.
(i) This Indenture creates a valid, continuing and enforceable
security interest (as defined in the applicable UCC) in the Indenture
Collateral in favor of the Indenture Trustee, which security interest is
prior to all other Liens (except for Permitted Liens), and is enforceable
as such against creditors of and purchasers from the Issuer;
(ii) such Indenture Collateral constitutes either a "general
intangible," an "instrument," an "account," "investment property," or
"chattel paper," within the meaning of the applicable UCC;
(iii) the Issuer owns and has good and marketable title to such
Indenture Collateral free and clear of any Lien (other than Permitted
Liens), claim or encumbrance of any Person;
(iv) the Issuer has received all consents and approvals required by
the terms of the Indenture Collateral to the pledge of the Indenture
Collateral hereunder to the Indenture Trustee;
(v) the Issuer has caused the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions
under Requirements of Law in order to perfect the security interest in
such Indenture Collateral granted to the Indenture Trustee under this
Indenture;
(vi) other than the security interest granted by the Issuer pursuant
to this Indenture, the Issuer has not pledged, assigned, sold, granted a
security interest in or otherwise conveyed any of such Indenture
Collateral. The Issuer has not authorized the filing of and is not aware
of any financing statements against the Issuer that include a description
of collateral covering such Indenture Collateral other than any financing
statement (A) relating to the security interest granted by the Issuer
under this Indenture,
22
or (B) that has been terminated. The Issuer is not aware of the filing of
any judgment or tax Lien filings against the Issuer;
(vii) all original executed copies of each Underlying Note that
constitute or evidence the Indenture Collateral have been delivered to the
Indenture Trustee;
(viii) the Issuer has received a written acknowledgment from the
Indenture Trustee that the Indenture Trustee or its bailee is holding the
Underlying Notes that constitute or evidence the Indenture Collateral
solely on behalf of and for the benefit of the Securityholders and the
Hedge Counterparties; and
(ix) none of the Underlying Notes that constitute or evidence the
Indenture Collateral has any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the
Issuer and the Indenture Trustee.
The representations and warranties in subsection 3.25(j) shall survive the
termination of this Agreement and such representations and warranties may not be
waived by any party hereto.
SECTION 3.26 RESTRICTED PAYMENTS.
The Issuer shall not, directly or indirectly, (i) pay any dividend or make
any distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, to the Owner Trustee or any owner
of a beneficial interest in the Issuer or otherwise with respect to any
ownership or equity interest or security in or of the Issuer, (ii) redeem,
purchase, retire or otherwise acquire for value any such ownership or equity
interest or security or (iii) set aside or otherwise segregate any amounts for
any such purpose; provided, however, that the Issuer may make, or cause to be
made, (w) distributions to the Owner Trustee, the Trust Company and the
Certificateholders as contemplated by, and to the extent funds are available for
such purpose under the Trust Agreement and the Sale and Servicing Agreement, (x)
payment to the Servicer and/or Trust Depositor pursuant to the terms of the Sale
and Servicing Agreement or the other Transaction Documents and (y) payments to
the Indenture Trustee pursuant to terms of the Sale and Servicing Agreement. The
Issuer will not, directly or indirectly, make payments to or distributions from
the Note Distribution Account except in accordance with this Indenture and the
Transaction Documents.
SECTION 3.27 NOTICE OF EVENTS OF DEFAULT.
The Issuer shall give the Indenture Trustee, each Hedge Counterparty and
the Rating Agencies prompt written notice of each Event of Default hereunder and
under the Trust Agreement and of each Servicer Default under the Sale and
Servicing Agreement.
SECTION 3.28 FURTHER INSTRUMENTS AND ACTS.
Upon request of the Indenture Trustee, the Issuer will execute and deliver
such further instruments and do such further acts as may be reasonably necessary
or proper to carry out more effectively the purpose of this Indenture.
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SECTION 3.29 STATEMENTS TO NOTEHOLDERS.
The Indenture Trustee shall forward by mail to each Noteholder and each
Hedge Counterparty the statements delivered to it pursuant to Article IX of the
Sale and Servicing Agreement except for the Monthly Report. The Indenture
Trustee may make available to the Noteholders, the Hedge Counterparties, the
parties to the Transaction Documents and the Rating Agencies, via the Indenture
Trustee's Internet website, each Monthly Report and, with the consent or at the
direction of the Trust Depositor, such other information regarding the Notes
and/or the Loans as the Indenture Trustee may have in its possession, but only
with the use of a password provided by the Indenture Trustee or its agent to
such Person upon receipt by the Indenture Trustee from such Person of a
certification in the form of Exhibit I; provided, however, that the Indenture
Trustee or its agent shall provide such password to the parties to the
Transaction Documents, each Hedge Counterparty and the Rating Agencies without
requiring such certification.
The Indenture Trustee's Internet website shall be initially located at
"xxx.XXXXxx.xxx" or at such other address as shall be specified by the Indenture
Trustee from time to time in writing to the Noteholders, the Hedge
Counterparties, the parties to the Transaction Documents and the Rating
Agencies. In connection with providing access to the Indenture Trustee's
Internet website, the Indenture Trustee may (other than with respect to the
parties to the Transaction Documents and the Rating Agencies) require
registration and the acceptance of a disclaimer. The Indenture Trustee shall not
be liable for the dissemination of information in accordance with this
Agreement.
SECTION 3.30 GRANT OF SUBSTITUTE LOANS.
In consideration of the delivery on each Subsequent Transfer Date
pursuant to and in accordance with the terms of Section 2.04 of the Sale and
Servicing Agreement, the Issuer grants to the Indenture Trustee a security
interest in all of its right, title and interest in the Loans transferred on
such Subsequent Transfer Date and simultaneously with the transfer of the
Substitute Loans to the extent of the availability thereof, the Issuer will
cause the related Loan File to be delivered to the Indenture Trustee.
SECTION 3.31 DETERMINATION OF NOTE INTEREST RATE.
Until the Outstanding Principal Balance of each Class of Notes has been
reduced to zero, the Indenture Trustee shall determine LIBOR, the Class A Note
Interest Rate, the Class B Note Interest Rate, and the Class C Note Interest
Rate for each Class of Notes for each Interest Accrual Period as provided in
Section 7.06 of the Sale and Servicing Agreement and shall inform the Issuer,
the Trust Depositor and the Servicer at their respective email addresses given
to the Indenture Trustee in writing thereof. Any such determination by the
Indenture Trustee of the amount of interest distributable on the Class A Notes,
the Class B Notes and the Class C Notes shall be binding on the parties absent
manifest error.
SECTION 3.32 COVENANTS OF THE ISSUER RELATING TO XXXXXX.
(a) On each day, the Issuer shall maintain one or more Hedge
Transactions, provided that each such Hedge Transaction shall:
24
(i) be entered into with a Hedge Counterparty and governed by
a Hedge;
(ii) have a schedule of periodic payment periods which
terminate not later than the date on which the Outstanding Amount of
the Notes is expected to be reduced to zero based on the contractual
provisions of the Loans as in effect from time to time;
(iii) on the Closing Date, have an amortizing notional amount
such that the Aggregate Notional Amount during any current or future
calculation period thereunder shall be not less than the sum of (A) the
product of 100% and the Outstanding Loan Balance of the Fixed Rate
Loans for the corresponding Due Period; and (B) the product of 100% and
the Outstanding Loan Balance of the Floating Prime Rate Loans for the
corresponding Due Period, in each case, based on the contractual
provisions of the Loans as in effect on such date;
(iv) be maintained so that (A) the Aggregate Notional Amount
of all Hedge Transactions hedging the Fixed Rate Loans for any current
or future calculation period will not be greater than nor less than the
Outstanding Loan Balance of the Fixed Rate Loans at the end of the
corresponding Due Period by more than the Fixed Rate Permitted Excess
Amount, (B) the Aggregate Notional Amount of all Hedge Transactions
(excluding any interest rate cap transactions) hedging the Floating
Prime Rate Loans for any current or future calculation period will not
be greater than nor less than the Outstanding Loan Balance of the
Floating Prime Rate Loans at the end of the corresponding Due Period by
more than the Floating Prime Rate Permitted Excess Amount and (C) the
Aggregate Notional Amount of all Hedge Transactions (excluding any
interest rate cap transactions) under all Xxxxxx then in effect for any
current or future calculation period shall not exceed the Aggregate
Outstanding Principal Balance for the corresponding Interest Accrual
Period; and
(v) each Hedge will provide that any scheduled periodic
payments required to be made by the Issuer and the Hedge Counterparty
on the same date with respect to a Hedge Transaction will be netted so
that only the net difference between such payments will be paid, with
any net periodic payments to be paid into the Principal and Interest
Account (if payable by the Hedge Counterparty) or from the Principal
and Interest Account (if payable by the Issuer) and distributed
pursuant to the terms of this Indenture and the Sale and Servicing
Agreement.
(b) As additional security hereunder, the Issuer hereby assigns to the
Indenture Trustee, on behalf of the Noteholders and each Hedge Counterparty, all
right, title and interest of the Issuer in each Hedge, each Hedge Transaction,
and all present and future amounts payable by a Hedge Counterparty to the Issuer
in accordance with the terms of the respective Hedge and Hedge Transaction(s)
with that Hedge Counterparty ("Hedge Collateral"), and Grants a security
interest to the Indenture Trustee, as agent for the Noteholders and each Hedge
Counterparty, in the Hedge Collateral. The Issuer acknowledges that, as a result
of that assignment, the Issuer may not, without the prior written consent of the
Indenture Trustee, exercise any rights under any Hedge or Hedge Transaction,
except for the Issuer's right under any Hedge to enter into Hedge Transactions
in order to meet the Issuer's obligations under Section 3.32 hereof or except as
otherwise contemplated in this Section 3.32 and in subsection 5.02(g) of the
Sale and Servicing
25
Agreement. Nothing herein shall have the effect of releasing the Issuer from any
of its obligations under any Hedge or any Hedge Transaction, nor be construed as
requiring the consent of the Indenture Trustee, any Noteholder or any Hedge
Counterparty for the performance by the Issuer of any such obligations.
(c) The Issuer hereby agrees to maintain a register of outstanding
Xxxxxx. Such register shall contain the name of each Hedge Counterparty as well
as the address of each Hedge Counterparty. The Issuer shall provide such names
and addresses to the Indenture Trustee, the Backup Servicer and each Rating
Agency on a current basis.
(d) The Indenture Trustee shall, upon notice from the Issuer, establish
a single, segregated trust account which shall be designated as the Hedge
Counterparty Collateral Account, which shall be held in trust in the name of the
Indenture Trustee for the benefit of the Noteholders and the Hedge
Counterparties and over which the Trustee shall have the exclusive control and
the sole right of withdrawal. The Indenture Trustee shall deposit all collateral
received from a Hedge Counterparty under a Hedge in the Hedge Counterparty
Collateral Account. Any and all funds at any time on deposit in, or otherwise to
the credit of, the Hedge Counterparty Collateral Account shall be held in trust
by the Indenture Trustee for the benefit of the Noteholders and the Hedge
Counterparties. The only permitted withdrawal from or application of funds on
deposit in, or otherwise to the credit of, the Hedge Counterparty Collateral
Account shall be upon Issuer Order (i) for application to obligations of a Hedge
Counterparty to the Issuer under Hedge if such Hedge becomes subject to early
termination or (ii) to return collateral to such Hedge Counterparty when and as
required by such Hedge. The Trustee shall be fully protected in relying upon
such Issuer Order. Each Hedge Counterparty Collateral Account shall be held in
accordance with the terms of the related Hedge.
(e) Each Hedge Agreement will provide that if at any time the Hedge
Counterparty or the Hedge Counterparty's credit support provider does not have
the long-term or short-term ratings required to be a Qualified Hedge
Counterparty then (A) the Hedge Counterparty shall either post collateral within
thirty (30) days as provided in the Credit Support Annex to the Hedge Agreement
or (B) transfer (at its own cost) all of its rights and obligations under the
Hedge Agreement to another Person in accordance with the terms of the Hedge
Agreement; provided, however, that notwithstanding the foregoing, if the Hedge
Counterparty has a long-term senior unsecured debt rating by Xxxxx'x of below
"A3" or "A3" on watch or a short-term debt rating by Xxxxx'x of below "P-1" (for
so long as the Class A Notes, the Class B Notes or the Class C Notes are deemed
Outstanding hereunder and are rated by Xxxxx'x), the Hedge Counterparty shall
transfer (at its own cost) all of its rights and obligations under the Hedge
Agreements to another Person in accordance with the terms of this Agreement.
SECTION 3.33 PAYMENTS FROM OBLIGOR LOCK-BOXES AND OBLIGOR LOCK-BOX
ACCOUNTS.
The Issuer agrees not to make, or permit to be made, any change, in the
direction of, or instructions with respect to, any payments to be made by an
Obligor Lock-Box Bank from any Obligor Lock-Box or any Obligor Lock-Box
Account in any manner that would diminish, impair, delay or otherwise adversely
effect the timing or receipt of such payments by the Lock-Box Bank or to
change the name in which an Obligor Lock-Box or Obligor Lock-Box Account is
26
maintained without the prior written consent of the Indenture Trustee and with
the consent of the Majority Noteholders and the Hedge Counterparties. The Issuer
further agrees to provide the Indenture Trustee promptly, but in no case later
than one (1) Business Day after the Issuer's receipt, any notice it receives
that an Obligor is changing the direction of or instructions with respect to any
payments from any Obligor Lock-Box or any Obligor Lock-Box Account or the
name in which an Obligor Lock-Box or Obligor Lock-Box Account is maintained.
SECTION 3.34 [RESERVED].
ARTICLE IV
THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 4.01 THE NOTES.
Certain of the Class A Notes, the Class B Notes and the Class C Notes
shall be registered initially in the name of Cede & Co. Beneficial Owners will
hold interests in the Class A Notes, the Class B Notes and the Class C Notes
through the book-entry facilities of the Depository in minimum denominations
of $1,000,000 and integral multiples of $1,000 in excess thereof. Subject to
subsections 4.02(b), (p), (q) and (r), the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Note shall be issued in such
names and denominations as may be set forth on an Issuer Order delivered to the
Indenture Trustee.
The Notes shall, on original issue, be executed on behalf of the Issuer
by the Owner Trustee, not in its individual capacity but solely as Owner
Trustee, authenticated by the Note Registrar and delivered by the Indenture
Trustee to or upon the order of the Issuer.
SECTION 4.02 REGISTRATION OF TRANSFER AND EXCHANGE OF NOTES.
(a) The Indenture Trustee shall cause to be kept a Note Register (the
"Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Notes and the
registration of transfers and exchanges of Notes as herein provided. The
Indenture Trustee shall be "Note Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided. The Note Register shall contain the
name, remittance instructions, Class of each Noteholder, as well as the Series
and the number in the Series.
(b) Each Class of Notes shall be issued in minimum denominations of
$1,000,000 initial principal amount and integral multiples of $1,000 in excess
thereof, except that one Note of each Class may be in a different denomination
so that the sum of the denominations of all outstanding Notes of such Class
shall equal the applicable Initial Class A Principal Balance, the Initial Class
B Principal Balance, the Initial Class C Principal Balance, the Initial Class D
Principal Balance and the Initial Class E Principal Balance, respectively. On
the Closing Date, the Indenture Trustee will execute and authenticate (i) one or
more Global Notes and/or (ii) Individual Notes all in an aggregate principal
amount that shall equal the applicable Initial Class A Principal Balance, the
applicable Initial Class B Principal Balance, the applicable Initial Class C
Principal Balance, the applicable Initial Class D Principal Balance and the
applicable Initial Class E Principal Balance.
27
The Global Notes (i) shall be delivered by the Issuer to the Depository
or, pursuant to the Depository's instructions, shall be delivered by the Issuer
on behalf of the Depository to and deposited with the DTC Custodian, and in each
case shall be registered in the name of Cede & Co. and (ii) with respect to the
Rule 144A Global Notes, shall bear a legend substantially to the following
effect:
"Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation
("DTC"), to the Note Registrar or its agent for registration
of transfer, exchange or payment, and any Note issued is
registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein."
The Global Notes may be deposited with such other Depository as the
Issuer may from time to time designate, and shall bear such legend as may be
appropriate; provided, that, such successor Depository maintains a book-entry
system that qualifies to be treated as "registered form" under Section 163(f)(3)
of the Code.
The Issuer and the Indenture Trustee are hereby authorized to execute
and deliver a Letter of Representations with the Depository relating to the
Notes.
(c) With respect to Notes registered in the Note Register in the name
of Cede & Co., as nominee of the Depository, the Issuer, the Servicer, the Owner
Trustee (as such and in its individual capacity) and the Indenture Trustee shall
have no responsibility or obligation to Direct or Indirect Participants or
Beneficial Owners for which the Depository holds Notes from time to time as a
Depository. Without limiting the immediately preceding sentence, the Issuer, the
Servicer, the Owner Trustee, (as such and in its individual capacity), and the
Indenture Trustee shall have no responsibility or obligation with respect to (a)
the accuracy of the records of the Depository, Cede & Co., or any Direct or
Indirect Participant with respect to the ownership interest in the Notes, (b)
the delivery to any Direct or Indirect Participant or any other Person, other
than a registered Holder of a Note, (c) the payment to any Direct or Indirect
Participant or any other Person, other than a registered Holder of a Note as
shown in the Note Register, of any amount with respect to any distribution of
principal or interest on the Notes or (d) the making of book - entry transfers
among Participants of the Depository with respect to Notes registered in the
Note Register in the name of the nominee of the Depository. No Person other than
a registered Holder of a Note as shown in the Note Register shall receive a Note
evidencing such Note.
(d) Upon delivery by the Depository to the Indenture Trustee of written
notice to the effect that the Depository has determined to substitute a new
nominee in place of Cede & Co., and subject to the provisions hereof with
respect to the payment of distributions by the mailing of checks or drafts to
the registered Holders of Notes appearing as registered Owners in the Note
Register on a Record Date, the name "Cede & Co." in this Indenture shall refer
to such new nominee of the Depository.
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(e) In the event that (i) the Depository or the Servicer advises the
Indenture Trustee in writing that the Depository is no longer willing or able to
discharge properly its responsibilities as nominee and depository with respect
to the Global Notes and the Servicer is unable to locate a qualified successor
or (ii) the Servicer at its sole option elects to terminate the book - entry
system through the Depository, the Global Notes shall no longer be restricted to
being registered in the Note Register in the name of Cede & Co. (or a successor
nominee) as nominee of the Depository. At that time, the Servicer may determine
that the Global Notes shall be registered in the name of and deposited with a
successor depository operating a global book-entry system, as may be
acceptable to the Servicer, or such depository's agent or designee but, if the
Servicer does not select such alternative global book-entry system, then upon
surrender to the Note Registrar of the Global Notes by the Depository,
accompanied by the registration instructions from the Depository for
registration, the Indenture Trustee shall at the Servicer's expense authenticate
Individual Notes. Neither the Servicer 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 the issuance of
Individual Notes, the Indenture Trustee, the Note Registrar, the Servicer, any
Paying Agent and the Issuer shall recognize the Holders of the Individual Notes
as Noteholders hereunder.
(f) Notwithstanding any other provision of this Agreement to the
contrary, so long as any Global Notes are registered in the name of Cede & Co.,
as nominee of the Depository, all distributions of principal and interest on
such Global Notes and all notices with respect to such Global Notes shall be
made and given, respectively, in the manner provided in the Letter of
Representations.
(g) Subject to the preceding paragraphs, upon surrender for
registration of transfer of any Note at the office of the Note Registrar and,
upon satisfaction of the conditions set forth below, the Issuer shall execute in
the name of the designated transferee or transferees, a new Note or Notes of the
same Percentage Interest and dated the date of authentication by the Indenture
Trustee. The Note Registrar shall notify the Servicer and the Indenture Trustee
of any such transfer.
At the option of the Noteholders, Notes may be exchanged for other
Notes in authorized denominations of a like Class, upon surrender of the Notes
to be exchanged at such office. Whenever any Notes are so surrendered for
exchange, the Issuer shall execute the Notes which the Noteholder making the
exchange is entitled to receive. Every Note presented or surrendered for
transfer or exchange shall be accompanied by wiring instructions, if applicable,
in the form of Exhibit C.
(h) No service charge shall be made for any transfer or exchange of
Notes, but prior to transfer the Note Registrar may require payment by the
transferor of a sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer or exchange of Notes.
All Notes surrendered for payment, transfer and exchange or redemption
shall be marked canceled by the Note Registrar and retained for one year and
destroyed thereafter.
29
(i) By acceptance of an Individual Note, whether upon original issuance
or subsequent transfer, each holder of such a Note acknowledges the restrictions
on the transfer of such Note set forth in the Securities Legend and agrees that
it will transfer such a Note only as provided herein. In addition to the
provisions of subsection 4.02(n) the following restrictions shall apply with
respect to the transfer and registration of transfer of an Individual Note to a
transferee that takes delivery in the form of an Individual Note:
(i) The Note Registrar shall register the transfer of an
Individual Note if the requested transfer is being made to a transferee
who has provided the Note Registrar with a Rule 144A Certification; or
(ii) The Note Registrar shall register the transfer of any
Individual Note if (x) the transferor has advised the Note Registrar in
writing that the Note is being transferred to an Institutional
Accredited Investor; and (y) prior to the transfer the transferee
furnishes to the Note Registrar a Transferee Letter; provided, that, if
based upon an Opinion of Counsel to the effect that the delivery of (x)
and (y) above are not sufficient to confirm that the proposed transfer
is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and
other applicable laws, the Note Registrar may as a condition of the
registration of any such transfer require the transferor to furnish
other certifications, legal opinions or other information prior to
registering the transfer of an Individual Note.
(j) Subject to subsection 4.02(n), so long as a Global Note remains
outstanding and is held by or on behalf of the Depository, transfers of
beneficial interests in the Global Note, or transfers by holders of Individual
Notes to transferees that take delivery in the form of beneficial interests in
the Global Note, may be made only in accordance with this subsection 4.02(j) and
in accordance with the rules of the Depository.
(i) Rule 144A Global Note to Regulation S Global Note
During the Restricted Period. If, during the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A
Global Note wishes at any time to transfer its beneficial
interest in such Rule 144A Global Note to a Person who wishes
to take delivery thereof in the form of a beneficial interest
in a Regulation S Global Note, such Beneficial Owner may, in
addition to complying with all applicable rules and procedures
of the Depository and Clearstream or Euroclear applicable to
transfers by their respective participants (the "Applicable
Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in
the Regulation S Global Note only upon compliance with the
provisions of this subsection 4.02(j)(i). Upon receipt by the
Note Registrar at its Corporate Trust Office of (1) written
instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Note
Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial
interest in the Regulation S Global Note in an amount equal to
the denomination of the beneficial interest in the Rule 144A
Global Note to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing
information regarding the account of the Depository
Participant (and the Euroclear or Clearstream account, as the
case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial
interest, and (3) a certificate in
30
the form of Exhibit E hereto given by the Beneficial Owner
that is transferring such interest, the Note Registrar shall
instruct the Depository to reduce the denomination of the Rule
144A Global Note by the denomination of the beneficial
interest in the Rule 144A Global Note to be so transferred
and, concurrently with such reduction, to increase the
denomination of the Regulation S Global Note by the
denomination of the beneficial interest in the Rule 144A
Global Note to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case
may be) a beneficial interest in the Regulation S Global Note
having a denomination equal to the amount by which the
denomination of the Rule 144A Global Note was reduced upon
such transfer.
(ii) Rule 144A Global Note to Regulation S Global
Note After the Restricted Period. If, after the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A
Global Note wishes at any time to transfer its beneficial
interest in such Rule 144A Global Note to a Person who wishes
to take delivery thereof in the form of a beneficial interest
in a Regulation S Global Note, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause
the transfer of such beneficial interest for an equivalent
beneficial interest in a Regulation S Global Note only upon
compliance with the provisions of this subsection 4.02(j)(ii).
Upon receipt by the Note Registrar at its Corporate Trust
Office of (1) written instructions given in accordance with
the Applicable Procedures from a Depository Participant
directing the Note Registrar to credit or cause to be credited
to another specified Depository Participant's account a
beneficial interest in the Regulation S Global Note in an
amount equal to the denomination of the beneficial interest in
the Rule 144A Global Note to be transferred, (2) a written
order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository
Participant (and, in the case of a transfer pursuant to and in
accordance with Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with, and the
account of the Depository Participant to be debited for, such
beneficial interest, and (3) a certificate in the form of
Exhibit F hereto given by the Beneficial Owner that is
transferring such interest, the Note Registrar shall instruct
the Depository to reduce the denomination of the Rule 144A
Global Note by the aggregate denomination of the beneficial
interest in the Rule 144A Global Note to be so transferred
and, concurrently with such reduction, to increase the
denomination of the Regulation S Global Note by the aggregate
denomination of the beneficial interest in the Rule 144A
Global Note to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case
may be) a beneficial interest in the Regulation S Global Note
having a denomination equal to the amount by which the
denomination of the Rule 144A Global Note was reduced upon
such transfer.
(iii) Regulation S Global Note to Rule 144A Global
Note. If the Beneficial Owner of an interest in a Regulation S
Global Note wishes at any time to transfer its beneficial
interest in such Regulation S Global Note to a Person who
wishes to take delivery thereof in the form of a beneficial
interest in the Rule 144A Global Note, such holder may, in
addition to complying with all Applicable Procedures, transfer
or cause
31
the transfer of such beneficial interest for an equivalent
beneficial interest in the Rule 144A Global Note only upon
compliance with the provisions of this subsection
4.02(j)(iii). Upon receipt by the Note Registrar at its
Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository
Participant directing the Note Registrar to credit or cause to
be credited to another specified Depository Participant's
account a beneficial interest in the Rule 144A Global Note in
an amount equal to the denomination of the beneficial interest
in the Regulation S Global Note to be transferred, (2) a
written order given in accordance with the Applicable
Procedures containing information regarding the account of the
Depository Participant to be credited with, and the account of
the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream
account, as the case may be) to be debited for such beneficial
interest, and (3) with respect to a transfer of a beneficial
interest in the Regulation S Global Note for a beneficial
interest in the related Rule 144A Global Note (i) during the
Restricted Period, a certificate in the form of Exhibit G
hereto given by the Beneficial Owner, or (ii) after the
Restricted Period, a Rule 144A Certification from the
transferee to the effect that such transferee is a Qualified
Institutional Buyer, the Note Registrar shall instruct the
Depository to reduce the denomination of the Regulation S
Global Note by the denomination of the beneficial interest in
the Regulation S Global Note to be transferred, and,
concurrently with such reduction, to increase the denomination
of the Rule 144A Global Note by the aggregate denomination of
the beneficial interest in the Regulation S Global Note to be
so transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions (who
shall be a Depository Participant acting for or on behalf of
Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Rule 144A Global Note having a
denomination equal to the amount by which the denomination of
the Regulation S Global Note was reduced upon such transfer.
(iv) Transfers Within Regulation S Global Notes
During Restricted Period. If, during the Restricted Period,
the Beneficial Owner of an interest in a Regulation S Global
Note wishes at any time to transfer its beneficial interest in
such Trust Certificate to a Person who wishes to take delivery
thereof in the form of a Regulation S Global Note, such
Beneficial Owner may transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in
such Regulation S Global Note only upon compliance with the
provisions of this subsection 4.02(j)(iv) and all Applicable
Procedures. Upon receipt by the Note Registrar at its
Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from a Depository
Participant directing the Note Registrar to credit or cause to
be credited to another specified Depository Participant's
account a beneficial interest in such Regulation S Global Note
in an amount equal to the denomination of the beneficial
interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing
information regarding the account of the Depository
Participant to be credited with, and the account of the
Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream
account, as the case may be) to be debited for, such
beneficial interest and (3) a certificate in the form of
Exhibit H hereto given by the transferee, the Note Registrar
shall instruct the Depository to credit or cause to be
credited to the account of the Person specified in such
instructions (who shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case
may
32
be) a beneficial interest in the Regulation S Global Note
having a denomination equal to the amount specified in such
instructions by which the account to be debited was reduced
upon such transfer. The Note Registrar shall not be required
to monitor compliance by Beneficial Owners of the provisions
of this subsection 4.02(j)(iv).
(k) Any and all transfers from a Global Note to a transferee wishing to
take delivery in the form of an Individual Note will require the transferee to
take delivery subject to the restrictions on the transfer of such Individual
Note described on the face of such Note, and such transferee agrees that it will
transfer such Individual Note only as provided therein and herein. No such
transfer shall be made and the Note Registrar shall not register any such
transfer unless such transfer is made in accordance with this subsection
4.02(k).
(i) Transfers of a beneficial interest in a Global Note to an
Institutional Accredited Investor will require delivery of such Note to
the transferee in the form of an Individual Note and the Note Registrar
shall register such transfer only if prior to the transfer such
transferee furnishes to the Note Registrar (1) a Transferee Letter to
the effect that the transfer is being made to an Institutional
Accredited Investor in accordance with an applicable exemption under
the Securities Act, and (2) an Opinion of Counsel acceptable to the
Indenture Trustee that such transfer is in compliance with the
Securities Act.
(ii) Transfers of a beneficial interest in a Global Note to a
Qualified Institutional Buyer or a Regulation S Investor wishing to
take delivery in the form of an Individual Note will be registered by
the Note Registrar only upon compliance with the provisions of
subsection 4.02(j) and if the Note Registrar is provided with a Rule
144A Certification or a Regulation S Transfer Certificate, as
applicable.
(iii) Notwithstanding the foregoing, no transfer of a
beneficial interest in a Regulation S Global Note to an Individual Note
pursuant to subparagraph (B) above shall be made prior to the
expiration of the Restricted Period and compliance with the
certification requirements of Rule 903(b)(3)(ii)(B) under the
Securities Act. Upon acceptance for exchange or transfer of a
beneficial interest in a Global Note for an Individual Note, as
provided herein, the Note Registrar shall endorse on the schedule
affixed to the related Global Note Registrar (or on a continuation of
such schedule affixed to such Global Note Registrar and made a part
thereof) an appropriate notation evidencing the date of such exchange
or transfer and a decrease in the denomination of such Global Note
Registrar equal to the denomination of such Individual Note Registrar
issued in exchange therefor or upon transfer thereof. Unless determined
otherwise by the Company in accordance with applicable law, an
Individual Note Registrar issued upon transfer of or exchange for a
beneficial interest in the Global Note Registrar shall bear the
Securities Legend.
(l) Transfers of Individual Note to the Global Notes. If a Holder of an
Individual Note wishes at any time to transfer such Note to a Person who wishes
to take delivery thereof in the form of a beneficial interest in the related
Regulation S Global Note or the related Rule 144A Global Note, such transfer may
be effected only in accordance with the Applicable Procedures, and this
subsection 4.02(l). Upon receipt by the Note Registrar at the Corporate Trust
Office of
33
(1) the Individual Note to be transferred with an assignment and transfer, (2)
written instructions given in accordance with the Applicable Procedures from a
Depository Participant directing the Note Registrar to credit or cause to be
credited to another specified Depository Participant's account a beneficial
interest in such Regulation S Global Note or such Rule 144A Global Note, as the
case may be, in an amount equal to the denomination of the Individual Note to be
so transferred, (3) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant (and, in the case of any transfer pursuant to Regulation S, the
Euroclear or Clearstream account, as the case may be) to be credited with such
beneficial interest, and (4) (x) if delivery is to be taken in the form of a
beneficial interest in the Regulation S Global Note, a Regulation S Transfer
Note from the transferor or (y) a Transferee Letter from the transferee to the
effect that such transferee is a Qualified Institutional Buyer, if delivery is
to be taken in the form of a beneficial interest in the Rule 144A Global Note,
the Note Registrar shall cancel such Individual Note, execute and deliver a new
Individual Note for the denomination of the Individual Note not so transferred,
registered in the name of the Holder, and the Note Registrar shall instruct the
Depository to increase the denomination of the Regulation S Global Note or the
Rule 144A Global Note, as the case may be, by the denomination of the Individual
Note to be so transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions (who, in the case of any increase
in the Regulation S Global Note during the Restricted Period, shall be a
Depository Participant acting for or on behalf of Euroclear or Clearstream, or
both, as the case may be) a corresponding denomination of the Rule 144A Global
Note or the Regulation S Global Note, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Global Note.
(m) An exchange of a beneficial interest in a Global Note for an
Individual Note or Notes, an exchange of an Individual Note or Notes for a
beneficial interest in a Global Note and an exchange of an Individual Note or
Notes for another Individual Note or Notes (in each case, whether or not such
exchange is made in anticipation of subsequent transfer, and in the case of the
Global Notes, so long as the Global Notes remain outstanding and are held by or
on behalf of the Depository), may be made only in accordance with this Section
4.02 and in accordance with the rules of the Depository and Applicable
Procedures.
(n) (i) Upon acceptance for exchange or transfer of an Individual Note
for a beneficial interest in the Global Note as provided herein, the Note
Registrar shall cancel such Individual Note and shall (or shall request the
Depository to) endorse on the schedule affixed to the applicable Global Note (or
on a continuation of such schedule affixed to the Global Note and made a part
thereof) an appropriate notation evidencing the date of such exchange or
transfer and an increase in the Note balance of the Global Note equal to the
Note balance of such Individual Note exchanged or transferred therefor.
(ii) Upon acceptance for exchange or transfer of a beneficial
interest in the Global Note for an Individual Note as provided herein,
the Note Registrar shall (or shall request the Depository to) endorse
on the schedule affixed to the Global Note (or on a continuation of
such schedule affixed to the Global Note and made a part thereof) an
34
appropriate notation evidencing the date of such exchange or transfer
and a decrease in the Note balance of the Global Note equal to the Note
balance of such Individual Note issued in exchange therefor or upon
transfer thereof.
(o) The Securities Legend shall be placed on any Individual Note issued
in exchange for or upon transfer of another Individual Note or of a beneficial
interest in the Global Note.
(p) Subject to the restrictions on transfer and exchange set forth in
this Section 4.02, the holder of any Individual Note may transfer or exchange
the same in whole or in part (in an initial Note balance equal to the minimum
authorized denomination of $1,000,000 or any integral multiple of $1,000 in
excess thereof) by surrendering such Note at the Corporate Trust Office, or at
the office of any transfer agent, together with an executed instrument of
assignment and transfer satisfactory in form and substance to the Note Registrar
in the case of transfer and a written request for exchange in the case of
exchange. The holder of a beneficial interest in a Global Note may, subject to
the rules and procedures of the Depository, cause the Depository (or its
nominee) to notify the Note Registrar in writing of a request for transfer or
exchange of such beneficial interest for an Individual Note or Notes. Following
a proper request for transfer or exchange, the Note Registrar shall, within five
(5) Business Days of such request made at such Corporate Trust Office, cause the
Indenture Trustee to authenticate and the Note Registrar to deliver at such
Corporate Trust Office, to the transferee (in the case of transfer) or holder
(in the case of exchange) or send by first class mail at the risk of the
transferee (in the case of transfer) or holder (in the case of exchange) to such
address as the transferee or holder, as applicable, may request, an Individual
Note or Notes, as the case may require, for a like aggregate Percentage Interest
and in such authorized denomination or denominations as may be requested. The
presentation for transfer or exchange of any Individual Note shall not be valid
unless made at the Corporate Trust Office by the registered holder in person, or
by a duly authorized attorney-in-fact.
(q) No transfer of any Note shall be made unless such transfer is
exempt from the registration requirements of the Securities Act and any
applicable state securities laws or is made in accordance with said Act and
laws. No transfer of any Note shall be made if such transfer would require the
Issuer to register as an "investment company" under the Investment Company Act.
In the event of any such transfer, unless such transfer is made in reliance upon
Rule 144A under the Securities Act or Regulation S under the Securities Act, (i)
the Indenture Trustee may require a written Opinion of Counsel acceptable to and
in form and substance reasonably satisfactory to the Indenture Trustee that such
transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from said Act and laws or is being made
pursuant to said Act and laws, which Opinion of Counsel shall not be an expense
of the Indenture Trustee, the Issuer, or the Servicer and (ii) the Indenture
Trustee shall require the transferee to execute a Transferee Letter certifying
to the Issuer and the Indenture Trustee the facts surrounding such transfer,
which Transferee Letter shall not be an expense of the Indenture Trustee, the
Issuer or the Servicer. The holder of a Note desiring to effect such transfer
shall, and by accepting a Note and the benefits of this Indenture does hereby
agree to, indemnify the Indenture Trustee, the Issuer, the Servicer and the
Initial Purchaser against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state laws. None of
the Issuer, the Indenture Trustee, the Trust Depositor or the Initial Purchaser
35
intends or is obligated to register or qualify any Note under the Securities Act
or any state securities laws.
(r) Notwithstanding any other provision of this Agreement to the
contrary, on the Closing Date, the Indenture Trustee shall authenticate in the
name of, and deliver to, the Trust Depositor, the Class D Note and the Class E
Note each in the form of a single Individual Note in an aggregate principal
amount equal to the Initial Class D Principal Balance and Initial Class E
Principal Balance, as applicable. The Holder of the Class D Note and the Class E
Note shall initially be the Trust Depositor. No transfer, sale, pledge or other
disposition of one or more Class E Notes (a "Transfer") shall be made unless
simultaneously with the Transfer (1) a proportionate amount of Trust
Certificates are Transferred so that the ratio of the Percentage Interest of the
Trust Certificates so Transferred to all Trust Certificates and the ratio of the
Percentage Interest of the Class E Notes so Transferred to all Class E Notes are
equal, (2) the Transfers of the Trust Certificates and Class E Notes referred to
herein are made to the same Person, and (3) the Percentage Interest of the Trust
Certificates and Class E Notes, respectively, so transferred is no less than ten
(10%) percent.
(s) The Class E Notes may only be owned by United States Persons (as
defined in Section 7701(a)(30) of the Code).
(t) No Class E Note may be acquired directly or indirectly, for, on
behalf of or with the assets of an employee benefit plan or other retirement
arrangement subject to ERISA, and/or Section 4975 of the Code (collectively, a
"Plan"). No transfer of a Class E Note representing an Individual Note shall be
made unless the Indenture Trustee shall have received a certification from the
transferee of such Individual Note, acceptable to and in form and substance
satisfactory to the Indenture Trustee and the Issuer, to the effect that such
transferee is acquiring a Class E Note in conformance with the requirements of
the preceding sentence. Notwithstanding anything else to the contrary herein, in
the event any purported transfer of any Class E Note representing an Individual
Note is made without delivery of the certification referred to above, such
certification shall be deemed to have been made by the Transferee by its
acceptance of such Individual Note.
(u) Notwithstanding any other provision of this Agreement to the
contrary, the Class D Notes may not be transferred by the initial Class D
Noteholder until such Noteholder delivers an Opinion of Counsel to the Indenture
Trustee regarding the treatment of such Class D Notes as debt for federal income
tax purposes.
SECTION 4.03 MUTILATED, DESTROYED, LOST OR STOLEN NOTES.
Subject to UCC Section 8-405, if (i) any mutilated Note is surrendered
to the Indenture Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii) there is
delivered to the Indenture Trustee such security or indemnity as may be required
by it to hold the Issuer and the Indenture Trustee harmless, then, in the
absence of notice to the Issuer, the Note Registrar or the Indenture Trustee
that such Note has been acquired by a protected 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 Note, a replacement Note; provided, however, that if any such
36
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within seven (7) days shall be due and payable, instead of issuing a replacement
Note, the Issuer may pay such destroyed, lost or stolen Note when so due or
payable without surrender thereof. If, after the delivery of such replacement
Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to
the preceding sentence, a protected purchaser of the original Note in lieu of
which such replacement Note was issued presents for payment such original Note,
the Issuer and the Indenture Trustee shall be entitled to recover such
replacement Note (or such payment) from the Person to whom it was delivered or
any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section 4.03, the
Issuer may require the payment by the Holder of such Note 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) connected therewith.
Every replacement Note issued pursuant to this Section 4.03 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 4.03 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 Notes.
SECTION 4.04 PAYMENT OF PRINCIPAL AND INTEREST; DEFAULTED INTEREST.
(a) The Notes shall accrue interest during each Interest Accrual Period
on the basis of the actual number of days elapsed during such Interest Accrual
Period and a year assumed to consist of 360 days. Any installment of interest or
principal, if any, payable on any Note which is punctually paid or duly provided
for by the Issuer on the applicable Remittance Date shall be paid to the Person
in whose name such Note is registered on the Record Date, by check mailed first
- class, postage prepaid, to such Person's address as it appears on the Note
Register on such Record Date, except that, unless Global Notes have been issued
pursuant to Section 4.02, with respect to Notes registered on the Record Date in
the name of the nominee of the Depository (initially, such nominee to be Cede &
Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such Person and except for the final installment of
principal payable with respect to such Note on a Remittance Date or on the
applicable Expected Maturity Date which shall be payable as provided below. The
funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.03.
(b) The principal of each Note shall be payable in installments on each
Remittance Date as provided in the Sale and Servicing Agreement. Notwithstanding
the foregoing, the entire
37
unpaid principal amount of the Notes shall be due and payable, if not previously
paid, on the date on which an Event of Default shall have occurred and be
continuing, if the Indenture Trustee with the consent of the Majority
Noteholders have declared the Notes to be immediately due and payable in the
manner provided in Section 5.02. All principal payments among the Classes of
Notes shall be made in the order and priorities set forth herein and in the Sale
and Servicing Agreement, and all principal payments on the Notes of the same
Class shall be made pro rata to the Noteholders of such Class. The Indenture
Trustee shall notify the Person in whose name a Note is registered at the close
of business on the Record Date preceding the Remittance Date on which the Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such notice shall be mailed or transmitted by facsimile prior to
such final Remittance Date and shall specify that such final installment will be
payable only upon presentation and surrender of such Note and shall specify the
place where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.02.
SECTION 4.05 TAX TREATMENT.
The Issuer has entered into this Indenture, and the Notes will be
issued, with the intention that, for federal, state and local income, business
and franchise tax purposes, (i) the Notes (other than the Class E Note) will
qualify as indebtedness secured by the Indenture Collateral and (ii) the Issuer
shall not be treated as an association, taxable mortgage pool or publicly traded
partnership taxable as a corporation; provided, that with respect to the Class D
Notes no Opinion of Counsel was sought or received regarding the tax treatment
of such class of Notes but that prior to transferring any of such Notes the
initial Class D Noteholder is required to obtain an Opinion of Counsel regarding
the treatment to such Notes as debt for such tax purposes as required by
subsection 4.02(u). The Issuer, by entering into this Indenture, and each
Noteholder (other than the Class E Noteholder), by the acceptance of any such
Note (and each beneficial owner of a Note, by its acceptance of an interest in
the applicable Note), agree to treat such Notes for federal, state and local
income and franchise tax purposes as indebtedness of the Issuer. Each Holder of
such Note (other than the Class E Noteholder) agrees that it will cause any
beneficial owner of such Note acquiring an interest in a Note through it to
comply with this Indenture as to treatment of indebtedness under applicable tax
law, as described in this Section 4.05. The parties hereto agree that they shall
not cause or permit the making, as applicable, of any election under Treasury
Regulation Section 301.7703-3 whereby the Issuer or any portion thereof would be
treated as a corporation for federal income tax purposes and, except as required
by the terms of this Indenture, shall not file tax returns or obtain any federal
employer identification number for the Issuer, but shall treat the Issuer as a
security device or disregarded entity for federal income tax purposes. The
provisions of this Indenture shall be construed in furtherance of the foregoing
intended tax treatment.
It is the intent of the Trust Depositor, the Servicer, the Class E
Noteholder and the Certificateholder that, (i) in the event that the Trust
Certificate and the Class E Note are owned by a single Holder, for federal
income tax purposes, the Trust will be treated as a division of such Holder, and
such Holder, by acceptance of the Trust Certificate and the Class E Note, agrees
to take no action inconsistent with such treatment and (ii) in the event that
the Trust Certificates and/or the Class E Notes are owned by more than one (1)
Holder, for federal income tax purposes, the Trust will be treated as a
partnership, the partners of which are the
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Certificateholder and the Class E Noteholder, and the Certificateholder and the
Class E Noteholder, by acceptance of a Trust Certificate and a Class E Note,
respectively, agree to treat the Trust Certificate and the Class E Note as
equity and to take no action inconsistent with such treatment.
SECTION 4.06 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect with respect to the
Notes except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of
Noteholders to receive payments of principal thereof and interest thereon, (iv)
Sections 3.03, 3.04, 3.06, 3.10, 3.19, 3.21, 3.22, 4.05 and 11.16, (v) the
rights, obligations and immunities of the Indenture Trustee hereunder (including
the rights of the Indenture Trustee under Section 6.07 and the obligations of
the Indenture Trustee under Section 4.07) and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
written demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to the Notes, when:
(A) all Notes of such Series theretofore
authenticated and delivered (other than (i) Notes that have
been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 4.03 and (ii) Notes for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Indenture
Trustee for cancellation; and
(B) the Issuer has delivered to the Indenture Trustee
an Officer's Certificate meeting the applicable requirements
of Section 11.01 and, subject to Section 11.01, stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to
the Notes have been complied with.
This Indenture shall cease to be of further effect with respect to each
Hedge when such Hedge has been terminated and the Hedge Counterparty has
received all amounts it is entitled to receive upon such termination.
SECTION 4.07 APPLICATION OF TRUST MONEY.
All moneys deposited with the Indenture Trustee pursuant to Section
4.06 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent, as the Indenture Trustee may determine, to the Holders
of Notes for the payment or redemption of which such moneys have been deposited
with the Indenture Trustee, of all sums due and to become due thereon for
principal and interest; but such moneys need not be segregated from other funds
except to the extent required herein or in the Sale and Servicing Agreement or
required by law.
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SECTION 4.08 REPAYMENT OF MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this Indenture
with respect to the Notes, all moneys then held by any Paying Agent other than
the Indenture Trustee under the provisions of this Indenture with respect to
such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to
be held and applied according to Section 3.05 and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
ARTICLE V
REMEDIES
SECTION 5.01 EVENTS OF DEFAULT.
Any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) shall
constitute an Event of Default:
(i) a default in the payment of any interest on any Note when
the same becomes due and payable and such default shall continue for a
period of two (2) Business Days;
(ii) failure to reduce to zero the Aggregate Outstanding
Principal Balance by the Legal Final Maturity Date;
(iii) failure on the part of the Originator to make any
payment or deposit required under the Sale and Servicing Agreement
within two (2) Business Days after the date the payment or deposit is
required to be made;
(iv) there occurs a default in the observance or performance
in any material respect of any covenant or agreement of the Originator,
the Trust Depositor or the Issuer made in the Sale and Servicing
Agreement or this Indenture, or any representation or warranty of the
Originator, the Trust Depositor or the Issuer made in the Sale and
Servicing Agreement or this Indenture proving to have been incorrect in
any material respect as of the time when the same shall have been made
and such default or incorrect representation or warranty has a material
adverse effect on the rights of the Noteholders and the Hedge
Counterparties, and such default shall continue or not be cured, or the
circumstance or condition in respect of which such representation or
warranty was incorrect shall not have been eliminated or otherwise
cured, for a period of thirty (30) days (if such failure can be
remedied) after the first to occur of (i) actual knowledge thereof by a
Responsible Officer of the Trust Depositor or (ii) there shall have
been given to the Issuer by the Indenture Trustee or to the Issuer and
the Indenture Trustee, by any Noteholder, a written notice specifying
such default or incorrect representation or warranty and requiring it
to be remedied and stating that such notice is a notice of default
hereunder;
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(v) there occurs the filing of a decree or order for relief by
a court having jurisdiction in the premises in respect of the Trust
Depositor, the Issuer or any substantial part of the Indenture
Collateral in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Trust Depositor, the Issuer or
for any substantial part of either Indenture Collateral, or ordering
the winding - up or liquidation of the Trust Depositor's or the
Issuer's affairs, and such decree or order shall remain unstayed and in
effect for a period of thirty (30) consecutive days;
(vi) there occurs the commencement by the Trust Depositor or
the Issuer of a voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by the Trust Depositor or the Issuer to the entry of an
order for relief in an involuntary case under any such law, or the
consent by the Trust Depositor or the Issuer to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Trust Depositor or the
Issuer or for any substantial part of the assets of the Indenture
Collateral, or the making by the Trust Depositor or the Issuer of any
general assignment for the benefit of creditors, or the failure by the
Trust Depositor or the Issuer generally to pay its debts as such debts
become due, or the taking of any action by the Trust Depositor or the
Issuer in furtherance of any of the foregoing;
(vii) the Indenture Trustee, on behalf of the Noteholders and
the Hedge Counterparties, shall fail to have a valid and perfected
first priority security interest in the Indenture Collateral, and such
failure to have a perfected first priority security interest shall have
a material adverse effect on the Noteholders and the Hedge
Counterparties;
(viii) the Issuer shall be required to register as an
"investment company" under the Investment Company Act of 1940, as
amended; or
(ix) on any day, any Hedge Transaction fails to meet the
requirements set forth in this Agreement.
The Issuer shall deliver to the Indenture Trustee, each Hedge
Counterparty and the Rating Agencies, within two (2) Business Days after the
occurrence of an Event of Default, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clause (v) of the definition of "Event of
Default," its status and what action the Issuer is taking or proposes to take
with respect thereto.
SECTION 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default should occur and be continuing, then and in
every such case the Indenture Trustee or the Majority Noteholders may declare
the Notes to be immediately due and payable, by a notice in writing to the
Issuer and the Rating Agencies (and to the Indenture Trustee if given by
Noteholders), and upon any such declaration the unpaid principal amount of such
Notes, together with accrued and unpaid interest thereon through the date of
acceleration, shall become immediately due and payable.
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At any time after such declaration of acceleration of maturity 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 V provided, the
Majority Noteholders, by written notice to the Issuer and the Indenture Trustee
and each Hedge Counterparty, may rescind and annul such declaration and its
consequences if:
(A) the Issuer has paid or deposited with the Indenture
Trustee a sum sufficient to pay:
(i) all payments of principal of and interest on the
Notes, all scheduled payments then due and payable under each
Hedge and all other amounts that would then be due hereunder,
upon the Notes and each Hedge if the Event of Default giving
rise to such acceleration had not occurred; and
(ii) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(B) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.12.
No such rescission or annulment shall affect any subsequent default or
impair any right consequent thereto. No such rescission or annulment shall
affect a Hedge or any Hedge Transaction that has been terminated in accordance
with the terms thereof.
SECTION 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Note when the same becomes due and payable, and such default
continues for a period of five (5) Business Days, or (ii) default is made in the
payment of the principal of or any installment of the principal of any Note when
the same becomes due and payable, and such default continues for a period of two
(2) Business Days, the Issuer will, upon demand of the Indenture Trustee, pay to
it, for the benefit of the Noteholders, the whole amount then due and payable on
the Notes for principal and interest, with interest upon the overdue principal,
and in addition thereto such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Indenture Trustee and its agents and
counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, with the consent of the Majority Noteholders and subject to the
provisions of Section 11.17 hereof may institute a Proceeding for the collection
of the sums so due and unpaid, and may prosecute such Proceeding to judgment or
final decree, and may enforce the same against the Issuer or other obligor upon
the Notes and collect in the manner provided by law out of the Indenture
Collateral, wherever situated, the moneys adjudged or decreed to be payable.
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(c) If an Event of Default occurs and is continuing, the Indenture
Trustee subject to the provisions of Section 11.17 hereof may, as more
particularly provided in Section 5.04, in its discretion, proceed to protect and
enforce its rights and the rights of the Noteholders and the Hedge
Counterparties and by such appropriate Proceedings as the Indenture Trustee
shall deem most effective 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 to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Indenture Collateral, Proceedings under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes 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 pursuant to the provisions of this Section 5.03, shall be
entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to 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 reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all reasonable expenses and
liabilities incurred, and all advances made, by the Indenture Trustee
and each predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Noteholders allowed in such
Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf;
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Noteholders allowed in any judicial
proceedings relative to the Issuer, its creditors and its property; and
(v) to participate as a member, voting or otherwise, of any
official committee of creditors appointed in such matter;
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and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) 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 Notes, and it shall not be necessary to
make any Noteholder a party to any such Proceedings.
SECTION 5.04 REMEDIES; PRIORITIES.
(a) If an Event of Default shall have occurred and be continuing,
subject to the provisions of Section 11.17 hereof, the Indenture Trustee may do
one or more of the following (subject to Section 5.05 and Section 5.15):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, and all amounts payable under the Sale and
Servicing Agreement, enforce any judgment obtained, and collect from
the Issuer and any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Indenture
Collateral;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee, the Holders of the Notes and the
Hedge Counterparties; and
44
(iv) sell the Indenture Collateral or any portion thereof or
rights or interest therein;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Collateral following an Event of Default, other than a
default in the payment of any principal or interest on the Notes for thirty (30)
days or more, unless (A) (i) prior to the payment in full of the Class A Notes,
the Class B Notes and the Class C Notes, the Class A Noteholders evidencing 100%
of the aggregate Outstanding Principal Balance of all Class A Notes, the Class B
Noteholders evidencing 100% of the aggregate Outstanding Principal Balance of
all Class B Notes, the Class C Noteholders evidencing 100% of the aggregate
Outstanding Principal Balance of all Class C Notes and, unless it shall be paid
in full all amounts payable to each Hedge Counterparty upon a termination of its
Hedge, each Hedge Counterparty consents thereto, (ii) from and after the payment
in full of the Class A Notes, the Class B Notes, the Class C Notes and amounts
due under the Xxxxxx, the Class D Noteholders evidencing 100% of the aggregate
Outstanding Principal Balance of all Class D Notes and the Class E Noteholders
evidencing 100% of the aggregate Outstanding Principal Balance of all Class E
Notes consents thereto, (B) the proceeds of such sale or liquidation
distributable to the Noteholders are sufficient to discharge in full all amounts
then due and unpaid upon the Notes for principal and interest and all amounts
payable to each Hedge Counterparty upon termination of the Xxxxxx, or (C) the
Indenture Trustee determines that the Loans will not continue to provide
sufficient funds for the payment of principal of and interest on the Notes, in
accordance with their respective terms as they would have become due if the
Notes had not been declared due and payable, and the Indenture Trustee obtains
the consent of (i) prior to the payment in full of the Class A Notes, the Class
B Notes and the Class C Notes, the Class A Noteholders evidencing 66 2/3% of the
aggregate Outstanding Principal Balance of all Class A Notes, the Class B
Noteholders evidencing 66 2/3% of the aggregate Outstanding Principal Balance of
all Class B Notes, the Class C Noteholders evidencing 66 2/3% of the aggregate
Outstanding Principal Balance of all Class C Notes and, unless it shall be paid
in full all amounts payable to each Hedge Counterparty upon a termination of its
Hedge, each Hedge Counterparty, and (ii) from and after the payment in full of
the Class A Notes, the Class B Notes, the Class C Notes, and amounts due under
the Xxxxxx, the Class D Noteholders evidencing 66 2/3% of the aggregate
Outstanding Principal Balance of all Class D Notes and the Class E Noteholders
evidencing 66 2/3% of the aggregate Outstanding Principal Balance of all Class E
Notes. In determining such sufficiency or insufficiency with respect to clauses
(B) and (C), the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Collateral for such purpose. Notwithstanding the
foregoing, so long as a Servicer Default has not occurred, any Sale of the
Indenture Collateral shall be made subject to the continued servicing of the
Loans by the Servicer as provided in the Sale and Servicing Agreement.
(b) If the Indenture Trustee collects any money or property pursuant to
this Article V, it shall pay out the money or property as set forth in Section
7.05 of the Sale and Servicing Agreement.
The Indenture Trustee may fix a record date and Remittance Date for any
payment to Noteholders pursuant to this Section 5.04. At least five (5) days
before such record date, the
45
Issuer shall mail to each Noteholder and the Indenture Trustee a notice that
states the record date, the Remittance Date and the amount to be paid.
SECTION 5.05 OPTIONAL PRESERVATION OF THE INDENTURE COLLATERAL.
If the Notes have been declared to be due and payable under Section
5.02 following an Event of Default and such declaration and its consequences
have not been rescinded and annulled, the Indenture Trustee may, but need not,
elect to maintain possession of the Indenture Collateral. It is the desire of
the parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes, amounts due
under the Xxxxxx and other obligations of the Issuer and the Indenture Trustee
shall take such desire into account when determining whether or not to maintain
possession of the Indenture Collateral. In determining whether to maintain
possession of the Indenture Collateral, the Indenture Trustee may, but need not,
obtain and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Indenture Collateral for such purpose.
SECTION 5.06 LIMITATION OF SUITS.
No Holder of any Note shall have any right to institute any Proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless and subject to
the provisions of Section 11.17 hereof:
(i) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) (A) prior to the payment in full of the Class A Notes,
the Class B Notes, the Class C Notes and, if and to the extent owned by
a Person other than the Trust Depositor or any of its Affiliates, the
Class D Notes, the Class A Noteholders evidencing 25% of the aggregate
Outstanding Principal Balance of all Class A Notes, the Class B
Noteholders evidencing 25% of the aggregate Outstanding Principal
Balance of all Class B Notes, the Class C Noteholders evidencing 25% of
the aggregate Outstanding Principal Balance of all Class C Notes and
the Class D Noteholders (other than the Trust Depositor or any of its
Affiliates) evidencing 25% of the aggregate Outstanding Principal
Balance of all Class D Notes (other than any Class D Notes owned by the
Trust Depositor or any of its Affiliates) have made written request to
the Indenture Trustee to institute such Proceeding in respect of such
Event of Default in its own name as Indenture Trustee hereunder and (B)
from and after the payment in full of the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes (owned by a Person other
than the Trust Depositor or any of its Affiliates), the Class D
Noteholders (if such Class D Noteholders are the Trust Depositor or any
of its Affiliates) evidencing 25% of the aggregate Outstanding
Principal Balance of all Class D Notes (other than Class D Notes not
owned by the Trust Depositor or any of its Affiliates) and the Class E
Noteholders evidencing 25% of the aggregate Outstanding Principal
Balance of all Class E Notes have made written request to the Indenture
Trustee to institute such proceeding in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
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(iii) such Holder or Holders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for sixty (60) days after its
receipt of such notice, request and offer of indemnity has failed to
institute such Proceedings; and
(v) (A) prior to the payment in full of the Class A Notes, the
Class B Notes, the Class C Notes and, if and to the extent owned by a
Person other than the Trust Depositor or any of its Affiliates, the
Class D Notes, no direction inconsistent with such written request has
been given to the Indenture Trustee during such sixty (60) day period
by the Holders of a majority of the Outstanding Principal Balance of
the Class A Notes, the Class B Notes, the Class C Notes and Class D
Notes (owned by a Person other than the Trust Depositor or any of its
Affiliates) and (B) from and after payment in full of the Class A
Notes, the Class B Notes, the Class C Notes and the Class D Notes
(owned by a Person other than the Trust Depositor or any of its
Affiliates), no direction inconsistent with such written request has
been given to the Indenture Trustee during such sixty (60) day period
by the Holders of a majority of the Outstanding Principal Balance of
the Class D Notes (other than any Class D Notes not owned by the Trust
Depositor or any of its Affiliates) and the Class E Notes.
It is understood and intended that no one or more Holders of Notes 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 Notes 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.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two (2) or more groups of Holders of
Notes, each representing less than a majority of the Aggregate Outstanding
Principal Balance, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture.
SECTION 5.07 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST.
Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture and
such right shall not be impaired without the consent of such Holder.
SECTION 5.08 RESTORATION OF RIGHTS AND REMEDIES.
If the Indenture Trustee or any Noteholder 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 Noteholder, then and in
every such case the Issuer, the Indenture Trustee and the Noteholders shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former
47
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.09 RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Indenture
Trustee or to the Noteholders 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 5.10 DELAY OR OMISSION NOT A WAIVER.
No delay or omission of the Indenture Trustee or any Holder of any Note
to exercise any right or remedy accruing upon any Default or Event of Default
shall impair any such right or remedy or constitute a waiver of any such Default
or Event of Default or an acquiescence therein. Every right and remedy given by
this Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11 CONTROL BY NOTEHOLDERS.
The Majority Noteholders shall have the right to direct the time,
method and place of conducting any Proceeding for any remedy available to the
Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided, that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture;
(ii) subject to the express terms of Section 5.04, any
direction to the Indenture Trustee to sell or liquidate the Indenture
Collateral shall be by Holders of the Notes representing (A) prior to
the payment in full of the Class A Notes, the Class B Notes, the Class
C Notes and, if and to the extent owned by a Person other than the
Trust Depositor or any of its Affiliates, 100% of the aggregate
Outstanding Principal Balance of all Class A Notes, all Class B Notes,
all Class C Notes, all Class D Notes (owned by a Person other than the
Trust Depositor or any of its Affiliates) and, unless it shall be paid
in full all amounts payable to each Hedge Counterparty upon a
termination of its Hedge, each Hedge Counterparty and (B) from and
after the payment in full of the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes (owned by a Person other than the
Trust Depositor or any of its Affiliates) and amounts due under the
Xxxxxx, 100% of the aggregate Outstanding Principal Balance of all
Class D Notes (other than any Class D Notes not owned by the Trust
Depositor or any of its Affiliates) and all Class E Notes;
(iii) if the conditions set forth in Section 5.05 have been
satisfied and the Indenture Trustee elects to retain the Indenture
Collateral pursuant to such Section, then any direction to the
Indenture to sell or liquidate the Indenture Collateral shall be of no
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force and effect unless (A) prior to the payment in full of the Class A
Notes, the Class B Notes, the Class C Notes and, if and to the extent
owned by a Person other than the Trust Depositor or any of its
Affiliates, the Class D Notes, the Class A Noteholders evidencing 100%
of the aggregate Outstanding Principal Balance of all Class A Notes,
the Class B Noteholders evidencing 100% of the aggregate Outstanding
Principal Balance of all Class B Notes, the Class C Noteholders
evidencing 100% of the aggregate Outstanding Principal Balance of all
Class C Notes, the Class D Noteholders (other than the Trust Depositor
or any of its Affiliates) evidencing 100% of the aggregate Outstanding
Principal Balance of all Class D Notes (other than any Class D Notes
owned by the Trust Depositor or any of its Affiliates) and, unless it
shall be paid in full all amounts payable to each Hedge Counterparty
upon a termination of its Hedge, each Hedge Counterparty consent
thereto and (B) from and after the payment in full of the Class A
Notes, the Class B Notes, the Class C Notes, the Class D Notes (owned
by a Person other than the Trust Depositor or any of its Affiliates)
and amounts due under the Xxxxxx, the Class D Noteholders (if such
Class D Noteholders are the Trust Depositor or any of its Affiliates)
evidencing 100% of the aggregate Outstanding Principal Balance of all
Class D Notes (other than any Class D Notes not owned by the Trust
Depositor or any of its Affiliates) and the Class E Noteholders
evidencing 100% of the aggregate Outstanding Principal Balance of all
Class E Notes consents thereto; and
(iv) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee that is not inconsistent with such
direction.
Notwithstanding the rights of Noteholders set forth in this Section
5.11, subject to Section 6.01, the Indenture Trustee need not take any action
that it determines might involve it in liability or might materially adversely
affect the rights of any Noteholders or Hedge Counterparties not consenting to
such action.
SECTION 5.12 WAIVER OF PAST DEFAULTS.
Prior to the declaration of the acceleration of the maturity of the
Notes as provided in Section 5.02, the Majority Noteholders, may waive any past
Event of Default and its consequences except an Event of Default with respect to
payment of principal of or interest on any of the Notes or in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Note. In the case of any such waiver, the Issuer,
the Indenture Trustee and the Noteholders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereto.
Upon any such waiver, any Event of Default arising therefrom shall be
deemed to have been cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto. No such waiver shall affect a
Hedge or any Hedge Transaction that has been terminated in accordance with its
terms.
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SECTION 5.13 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note by
such Holder's 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 5.13 shall not apply to (a) any
suit instituted by the Indenture Trustee, (b) any suit instituted by any
Noteholder, or group of Noteholders, in each case holding in the aggregate more
than 25% of the Aggregate Outstanding Principal Balance or (c) any suit
instituted by any Noteholder for the enforcement of the payment of principal of
or interest on any Note on or after the respective due dates expressed in such
Note and in this Indenture.
SECTION 5.14 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 law wherever enacted,
now or at any time hereafter in force, that may affect the covenants 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 the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 5.15 SALE OF INDENTURE COLLATERAL.
(a) The power to effect any sale or other disposition (a "Sale") of any
portion of a Indenture Collateral pursuant to Section 5.04 is expressly subject
to the provisions of Section 5.05 and this Section 5.15. The power to effect any
such Sale shall not be exhausted by any one or more Sales as to any portion of
the Indenture Collateral remaining unsold, but shall continue unimpaired until
the entire Indenture Collateral shall have been sold or all amounts payable on
the Notes and under this Indenture shall have been paid. The Indenture Trustee
hereby expressly waives its right to any amount fixed by law as compensation for
any Sale.
(b) The Indenture Trustee shall not in any private Sale sell the
Indenture Collateral, or any portion thereof, unless the Holders of all the
Class A Notes, Class B Notes, Class C Notes and, if and to the extent owned by a
Person other than the Trust Depositor or any of its Affiliates, and each Hedge
Counterparty consent to or direct the Indenture Trustee to make such Sale and:
(i) the proceeds of such Sale would be not less than the
entire amount which would be payable to the Noteholders under the Notes
and the Hedge Counterparties under the Xxxxxx, in full payment thereof
(including all Hedge Breakage Costs and other amounts payable in
connection with the termination of the Xxxxxx) on the Remittance Date
next succeeding the date of such Sale, or
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(ii) the Indenture Trustee determines, in its sole discretion,
that the conditions for retention of the Indenture Collateral set forth
in Section 5.05 cannot be satisfied (in making any such determination,
the Indenture Trustee may rely upon an opinion of an Independent
investment banking or accounting firm obtained and delivered as
provided in Section 5.05, and the Majority Noteholders consent to such
Sale, which consent will not be unreasonably withheld).
(c) In connection with a Sale of all or any portion of the Indenture
Collateral:
(i) any Holder or Holders of Notes may bid for and purchase
the property offered for Sale, and upon compliance with the terms of
Sale may hold, retain and possess and dispose of such property, without
further accountability, and may, in paying the purchase money therefor,
deliver any Notes or claims for interest thereon in lieu of cash up to
the amount which shall, upon distribution of the net proceeds of such
Sale, be payable thereon, and such Notes, in case the amounts so
payable thereon shall be less than the amount due thereon, shall be
returned to the Holders thereof after being appropriately stamped to
show such partial payment;
(ii) the Indenture Trustee may bid for and acquire the
property offered for Sale in connection with any Sale thereof, and,
subject to any requirements of, and to the extent permitted by,
Requirements of Law in connection therewith, may purchase all or any
portion of the Indenture Collateral in a private sale, and, in lieu of
paying cash therefor, may make settlement for the purchase price by
crediting the gross Sale price against the sum of (A) the amount which
would be distributable to the Holders of the Notes and Hedge
Counterparties as a result of such Sale in accordance with subsection
5.04(b) on the Remittance Date next succeeding the date of such Sale
and (B) the expenses of the Sale and of any Proceedings in connection
therewith which are reimbursable to it, without being required to
produce the Notes in order to complete any such Sale or in order for
the net Sale price to be credited against such Notes, and any property
so acquired by the Indenture Trustee shall be held and dealt with by it
in accordance with the provisions of this Indenture;
(iii) the Indenture Trustee shall execute and deliver an
appropriate instrument of conveyance transferring its interest in any
portion of the Indenture Collateral in connection with a Sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of the Issuer to transfer and convey its
interest in any portion of the Indenture Collateral in connection with
a Sale thereof, and to take all action necessary to effect such Sale;
and
(v) no purchaser or transferee at such a Sale 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.
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SECTION 5.16 ACTION ON NOTES.
The Indenture Trustee's right to seek and recover judgment on the Notes
or 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,
the Hedge Counterparties or the Noteholders 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 Indenture Collateral or
upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with subsection 5.04(b).
SECTION 5.17 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee to do so,
the Issuer shall take all such lawful action as the Indenture Trustee may
request to compel or secure the performance and observance by the Trust
Depositor and the Servicer, as applicable, of each of their obligations to the
Issuer under or in connection with the Transaction Documents, and to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Issuer under or in connection with the Transaction Documents to the extent and
in the manner directed by the Indenture Trustee, including the transmission of
notices of default on the part of the Trust Depositor or the Servicer thereunder
and the institution of legal or administrative actions or proceedings to compel
or secure performance by the Trust Depositor or the Servicer of each of their
obligations under the Transaction Documents.
(b) If a Servicer Default has occurred and is continuing, the Indenture
Trustee, at the direction (which direction shall be in writing or by telephone
(confirmed in writing promptly thereafter)) of (i) prior to the payment in full
of the Class A Notes, the Class B Notes, the Class C Notes and, if and to the
extent owned by a Person other than the Trust Depositor or any of its
Affiliates, the Class D Notes, the Class A Noteholders evidencing 66 2/3% of the
aggregate Outstanding Principal Balance of all Class A Notes, the Class B
Noteholders evidencing 66 2/3% of the aggregate Outstanding Principal Balance of
all Class B Notes, the Class C Noteholders evidencing 66 2/3% of the aggregate
Outstanding Principal Balance of all Class C Notes, and the Class D Noteholders
(other than the Trust Depositor or any of its Affiliates) evidencing 66 2/3% of
the aggregate Outstanding Principal Balance of all Class D Notes (owned by a
Person other than the Trust Depositor or its Affiliates) consents thereto and
(ii) from and after the payment in full of the Class A Notes, the Class B Notes,
the Class C Notes, the Class D Notes (owned by a Person other than the Trust
Depositor or any of its Affiliates), the Class D Noteholders (if such Class D
Noteholders are the Trust Depositor or any of its Affiliates) evidencing 66 2/3%
of the aggregate Outstanding Principal Balance of all Class D Notes (other than
any Class D Notes not owned by the Trust Depositor or any of its Affiliates) and
the Class E Noteholders evidencing 66 2/3% of the aggregate Outstanding
Principal Balance of the Class E Notes consents thereto, shall exercise all
rights, remedies, powers, privileges and claims of the Issuer against the
Servicer under or in connection with the Sale and Servicing Agreement, including
the right or power to take any action to compel or secure performance or
observance by the Servicer, of its obligations to the Issuer thereunder and to
give any consent, request, notice, direction, approval, extension or waiver
under the Sale and Servicing Agreement, and any right of the Issuer to take such
action shall not be suspended.
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ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.01 DUTIES OF INDENTURE TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise 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 person would exercise or use under the circumstances in the conduct of
such person's own affairs with respect to the Indenture Collateral.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture
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; however, the Indenture Trustee shall
examine the certificates and opinions to determine whether or not they
conform 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 paragraph (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 Section 5.11.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section
6.01.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
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(g) The Indenture Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture, to expend or risk its
own funds or otherwise incur financial liability or to honor the request or
direction of any of the Noteholders pursuant to this Indenture, unless the
Noteholders shall have offered to the Indenture Trustee reasonable security or
indemnity against the costs, expenses, and liabilities that might be incurred by
it in compliance with the request or direction.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.01.
(i) The Indenture Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer assigned to and working in the
Indenture Trustee's Corporate Trust Office has actual knowledge thereof.
SECTION 6.02 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 the document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate, or, with respect to legal matters, an Opinion
of Counsel. The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on an Officer's Certificate or Opinion
of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(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; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall not be bound to make any investigation
into the performance of the Issuer or the Servicer under this Indenture or any
other Transaction Document or into the matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other document, but the Indenture Trustee, in its
discretion, may make any further inquiry or investigation into those matters
that it
54
deems appropriate, and if the Indenture Trustee determines to inquire further,
it shall be entitled to examine the books, records and premises of the Issuer
and the Servicer, personally or by agent or attorney.
(g) If the Indenture Trustee is also acting as Paying Agent or as Note
Registrar, the rights and protections afforded to the Indenture Trustee pursuant
to the Article shall also be afforded to it in such additional capacities.
SECTION 6.03 INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE.
The Indenture Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Issuer or
its Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Note Registrar, co-registrar, Paying Agent or co-paying agent
may do the same with like rights. However, the Indenture Trustee must comply
with Section 6.11.
SECTION 6.04 INDENTURE TRUSTEE'S DISCLAIMER.
The Indenture Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Sale and
Servicing Agreement, the Trust Agreement or any other Transaction Document, the
validity or sufficiency of any security interest intended to be created or the
characterization of the Notes for tax purposes or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in the Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
SECTION 6.05 NOTICE OF EVENT OF DEFAULT.
The Indenture Trustee shall mail to each Noteholder, each Hedge
Counterparty and the Owner Trustee notice of an Event of Default within thirty
(30) days after the Indenture Trustee has actual knowledge thereof in accordance
with Section 6.01. Except in the case of an Event of Default in payment of
principal of or interest on any Note, the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Noteholders and
the Hedge Counterparties.
SECTION 6.06 REPORTS BY INDENTURE TRUSTEE TO HOLDERS.
The Indenture Trustee shall deliver to each Noteholder such information
as may be required to enable such holder to prepare its federal and state income
tax returns. In addition, upon the Issuer's or a Noteholder's written request,
the Indenture Trustee shall promptly furnish information reasonably requested by
the Issuer or such Noteholder that is reasonably available to the Indenture
Trustee to enable the Issuer or such Noteholder to perform its federal and state
income tax reporting obligations.
SECTION 6.07 COMPENSATION AND INDEMNITY.
The Issuer shall or shall cause the Trust Depositor to pay to the
Indenture Trustee on each Remittance Date such reasonable compensation for its
services pursuant to a separate agreement
55
between the Indenture Trustee and the Trust Depositor. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall or shall cause the Trust Depositor to reimburse
the Indenture Trustee for all reasonable out-of-pocket expenses incurred or
made by it, including costs of collection, in addition to the compensation for
its services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Indenture Trustee's agents, counsel,
accountants and experts. The Issuer shall or shall cause the Trust Depositor to
indemnify the Indenture Trustee against any and all loss, liability or expense
(including attorneys' fees) incurred by it in connection with the administration
of this trust and the performance of its duties hereunder. The Indenture Trustee
shall notify the Issuer and the Trust Depositor promptly of any claim for which
it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer
and the Trust Depositor shall not relieve the Issuer or the Trust Depositor of
its obligations hereunder or under the Trust Agreement. Neither the Issuer nor
the Trust Depositor need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the Indenture
Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section 6.07 shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of an Event of Default
specified in clauses (iv) or (v) of the definition of "Event of Default" with
respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
SECTION 6.08 REPLACEMENT OF INDENTURE TRUSTEE.
No resignation or removal of the Indenture Trustee and no appointment
of a successor Indenture Trustee shall become effective until the acceptance of
appointment by the successor Indenture Trustee pursuant to this Section 6.08.
The Indenture Trustee may resign at any time by so notifying the Issuer. The
Majority Noteholders or the Issuer, with the written consent of the Majority
Noteholders, may remove the Indenture Trustee by so notifying the Indenture
Trustee and the Rating Agencies in writing and may appoint a successor Indenture
Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) the Indenture Trustee is adjudged a bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property;
(iv) the Indenture Trustee otherwise becomes incapable of
acting; or
(v) the Indenture Trustee defaults in any of its obligations
under the Transaction Documents and such default is not cured within
thirty (30) days after a Responsible Officer of the Indenture Trustee
receives written notice of such default.
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If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. No successor Indenture Trustee
shall accept appointment as provided in this Section 6.08 unless at the time of
such acceptance such Person shall be eligible under the provisions of Section
6.11. The successor Indenture Trustee shall mail a notice of its succession to
Noteholders and the Hedge Counterparties. The retiring Indenture Trustee shall
promptly transfer all property (including all Indenture Collateral) held by it
as Indenture Trustee to the successor Indenture Trustee and shall execute and
deliver such instruments and such other documents as may reasonably be required
to more fully and certainly vest and confirm in the successor Indenture Trustee
all such rights, powers, duties and obligations.
If a successor Indenture Trustee does not take office within sixty (60)
days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Majority Noteholders, may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section 6.08, the Issuer's obligations under Section 6.07 shall continue
for the benefit of the retiring Indenture Trustee.
Upon acceptance of appointment by a successor Indenture Trustee as
provided in this Section 6.08, the Servicer shall mail notice of such succession
hereunder to all Holders of Notes at their addresses as shown in the Note
Register and the Hedge Counterparties at their addresses as shown on the
register kept by the Issuer, as provided to the Indenture Trustee. If the
Servicer fails to mail such notice within ten (10) days after acceptance of
appointment by the successor Indenture Trustee, the successor Indenture Trustee
shall cause such notice to be mailed at the expense of the Servicer.
SECTION 6.09 SUCCESSOR INDENTURE TRUSTEE BY MERGER.
If the Indenture Trustee consolidates with, merges or converts into, or
transfers all or substantially all its corporate trust business or assets to,
another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Indenture
Trustee; provided, that, such corporation or banking association shall be
otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall
provide the Rating Agencies and the Hedge Counterparties prior written notice of
any such transaction.
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In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 APPOINTMENT OF CO-INDENTURE TRUSTEE OR SEPARATE
INDENTURE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Indenture Collateral may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons, to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of the
Indenture Collateral, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders and the Hedge Counterparties, such
interest to the Indenture Collateral, or any part hereof, and, subject to the
other provisions of this Section 6.10, such powers, duties, obligations, rights
and trusts as the Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor Indenture Trustee under Section 6.11 and no notice to
the Noteholders or the Hedge Counterparties of the appointment of any co-trustee
or separate trustee shall be required under Section 6.08 hereof. No appointment
of a co-trustee or a separate trustee shall relieve the Indenture Trustee of its
duties and obligations hereunder.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Indenture
Collateral or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
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(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Indenture on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 ELIGIBILITY; DISQUALIFICATION.
The Indenture Trustee hereunder shall at all times be (i) a national
banking association or banking corporation or trust company organized and doing
business under the laws of any state or the United States, (ii) authorized under
such laws to exercise corporate trust powers, (iii) having a combined capital
and surplus of at least $50,000,000, (iv) having unsecured and unguaranteed long
- term debt obligations rated at least Baa3 by Moody's, BBB by Fitch and BBB- by
S&P, and (v) is subject to supervision or examination by federal or state
authority. If such banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 6.11 its combined
capital and surplus shall be deemed to be as set forth in its most recent report
of condition so published. In case at any time the Indenture Trustee shall cease
to be eligible in accordance with the provisions of this Section 6.11, the
Indenture Trustee shall (a) give prompt notice to the Issuer, the Trust
Depositor, the Servicer, the Noteholders and the Hedge Counterparties that it
has so ceased to be eligible to be the Indenture Trustee and (b) resign, upon
the request of the Majority Noteholders in the manner and with the effect
specified in Section 6.08.
SECTION 6.12 [RESERVED].
SECTION 6.13 REPRESENTATIONS, WARRANTIES AND COVENANTS OF INDENTURE
TRUSTEE.
The Indenture Trustee hereby makes the following representations,
warranties and covenants on which the Issuer, the Trust Depositor, the Servicer,
the Noteholders and the Hedge Counterparties shall rely:
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(a) the Indenture Trustee is a national banking association and trust
company duly organized, validly existing and in good standing under the laws of
the United States.
(b) The Indenture Trustee has full power, authority and legal right to
execute, deliver and perform this Indenture and the other Transaction Documents
to which it is a party and shall have taken all necessary action to authorize
the execution, deliver and performance by it of this Indenture and the other
Transaction Documents to which it is a party.
(c) The execution, delivery and performance by the Indenture Trustee of
this Indenture and the other Transaction Documents to which it is a party shall
not (i) violate any provision of any law or any order, writ, judgment or decree
of any court, arbitrator or governmental authority applicable to the Indenture
Trustee or any of its assets, (ii) violate any provision of the corporate
charter or by-laws of the Indenture Trustee or (iii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of any lien on any properties included in
the Indenture Collateral pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking to which it is a party, which
violation, default or lien could reasonably be expected to materially and
adversely affect the Indenture Trustee's performance or ability to perform its
duties under this Indenture and the other Transaction Documents to which it is a
party or the transactions contemplated in this Indenture and the other
Transaction Documents to which it is a party.
(d) The execution, delivery and performance by the Indenture Trustee of
this Indenture and the other Transaction Documents to which it is a party shall
not require the authorization, consent or approval of, the giving of notice to,
the filing or registration with or the taking of any other action in respect of
any governmental authority or agency regulating the banking and corporate trust
activities of the Indenture Trustee.
(e) This Indenture and the other Transaction Documents to which it is a
party has been duly executed and delivered by the Indenture Trustee and
constitute the legal, valid and binding agreements of the Indenture Trustee,
enforceable in accordance with their respective terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally or the application of
equitable principles in any proceeding, whether at law or in equity. The
Indenture Trustee hereby agrees and covenants that it will not at any time in
the future, deny that this Indenture and the other Transaction Documents to
which it is a party constitute the legal, valid and binding agreement of the
Indenture Trustee.
(f) The Indenture Trustee shall not take any action, or fail to take any
action, if such action or failure to take action will materially interfere with
the enforcement of any rights of the Noteholders or the Hedge Counterparties
under this Indenture or the other Transaction Documents.
SECTION 6.14 DIRECTIONS TO INDENTURE TRUSTEE.
The Indenture Trustee is hereby directed:
(i) to accept a collateral assignment of the Loans and hold the
assets of the Indenture Collateral as security for the Noteholders and Hedge
Counterparties;
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(ii) to authenticate and deliver the Notes substantially in the form
prescribed by Exhibit A in accordance with the terms of this Indenture;
(iii) to execute and deliver the Transaction Documents to which it
is a party; and
(iv) to take all other actions as shall be required to be taken by
the terms of this Indenture.
SECTION 6.15 CONFLICTS.
If a Default occurs and is continuing and the Indenture Trustee is deemed
to have a "conflicting interest" (as defined in the TIA) as a result of acting
as trustee for both the Class A Notes, the Class B Notes and the Class C Notes
and the Class D Notes and the Class E Note, the Issuer shall appoint a successor
Indenture Trustee for the Class A Notes, the Class B Notes and the Class C Notes
and a successor for the Class D Notes and the Class E Note so that there will be
separate Indenture Trustees for the Class A Notes, the Class B Notes and the
Class C Notes on the one hand, and for the Class D Notes and the Class E Note on
the other hand. No such event shall alter the voting rights of the Noteholders
under this Indenture or under any of the other Transaction Documents.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
NOTEHOLDERS.
The Issuer will furnish or cause to be furnished to the Indenture Trustee
(a) within one (1) day after each Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders of Notes as of such Record Date and (b) at such other times as the
Indenture Trustee may reasonably request in writing, within thirty (30) days
after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than ten (10) days prior to the time such list is
furnished; provided, however, that so long as the Indenture Trustee is the Note
Registrar, no such list shall be required to be furnished.
SECTION 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO NOTEHOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
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(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
(d) The Indenture Trustee shall furnish to the Noteholders and the Hedge
Counterparties promptly upon receipt of a written request therefor, duplicates
or copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Indenture Trustee under
the Transaction Documents.
SECTION 7.03 FISCAL YEAR.
Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
ARTICLE VIII
TRUST ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01 COLLECTION OF MONEY.
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 fiscal agent or other intermediary,
all money and other property payable to or receivable by the Indenture Trustee
pursuant to this Indenture. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture. Except as otherwise expressly
provided in this Indenture, if any Event of Default occurs in the making of any
payment or performance under any agreement or instrument that is part of the
Indenture Collateral, the Indenture Trustee may 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 any right to proceed thereafter as provided in Article V.
SECTION 8.02 TRUST ACCOUNTS.
(a) On or prior to the Closing Date, the Servicer shall establish and
maintain, in the name of the Indenture Trustee, for the benefit of the
Noteholders, the Hedge Counterparties, and the Certificateholder, the Trust
Accounts (other than the Principal and Interest Accounts which shall be in the
name of the Servicer) as provided in Section 7.01 of the Sale and Servicing
Agreement.
(b) All funds required to be deposited in the Principal and Interest
Account with respect to the preceding Due Period will be deposited in the
Principal and Interest Account as provided in Section 7.01 of the Sale and
Servicing Agreement. On or before each Determination Date, the Interest
Collections and Principal Collections with respect to the preceding Due Period
will be transferred from the Principal and Interest Account to the Note
Distribution Account as provided in Section 7.05 of the Sale and Servicing
Agreement.
(c) On each Remittance Date, the Indenture Trustee shall distribute all
amounts on deposit in the Note Distribution Account to Noteholders in respect of
each Class of Notes, to the
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Hedge Counterparties in respect of the Xxxxxx, and to the Paying Agent under the
Trust Agreement, for distribution to the Holders of the Trust Certificates in
accordance with the provisions of Section 7.05 of the Sale and Servicing
Agreement.
(d) All moneys deposited from time to time in the Note Distribution
Account pursuant to the Sale and Servicing Agreement and all deposits therein
pursuant to this Indenture are for the benefit of the Noteholders and the Hedge
Counterparties and all investments made with such moneys including all income or
other gain from such investments are for the benefit of the Noteholders and the
Hedge Counterparties as provided by the Sale and Servicing Agreement.
The Indenture Trustee shall invest any funds in the Note Distribution
Account as provided in the Sale and Servicing Agreement.
SECTION 8.03 OPINION OF COUNSEL.
Except for releases or conveyances required or permitted by the Sale and
Servicing Agreement and the other Transaction Documents, the Indenture Trustee
shall receive at least two (2) Business Days' notice when requested by the
Issuer to take any action pursuant to subsection 8.05(a), accompanied by copies
of any instruments to be executed, and the Indenture Trustee shall also require,
as a condition to such action, an Opinion of Counsel, in form and substance
satisfactory to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and concluding that
all conditions precedent to the taking of such action have been complied with
and such action will not materially and adversely impair the security for the
Notes or the Xxxxxx or the rights of the Noteholders and the Hedge
Counterparties in contravention of the provisions of this Indenture; provided,
however, that such Opinion of Counsel shall not be required to express an
opinion as to the fair value of the Indenture Collateral. Counsel rendering any
such opinion may rely as to factual matters, without independent investigation,
on the accuracy and validity of any certificate or other instrument delivered to
the Indenture Trustee in connection with any such action.
SECTION 8.04 TERMINATION UPON DISTRIBUTION TO NOTEHOLDERS.
This Indenture and the respective obligations and responsibilities of the
Issuer and the Indenture Trustee created hereby shall terminate upon the
distribution to the Noteholders, the Hedge Counterparties and the Indenture
Trustee of all amounts required to be distributed pursuant to Article III and
the Sale and Servicing Agreement.
SECTION 8.05 RELEASE OF INDENTURE COLLATERAL.
(a) Subject to the payment of its fees and reasonable expenses, the
Indenture Trustee may, and when required by the provisions of this Indenture
shall, execute instruments to release property from the lien of this Indenture,
or convey the Indenture Trustee's interest in the same, in a manner and under
circumstances that are not inconsistent with the provisions of this Indenture,
Section 5.08 of the Sale and Servicing Agreement and the other Transaction
Documents. No party relying upon an instrument executed by the Indenture Trustee
as provided in Article IV hereunder 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.
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(b) The Indenture Trustee shall, at such time as (i) there are no Notes
Outstanding, (ii) all outstanding Hedge Transactions under all Xxxxxx then in
effect have been terminated and all payments payable to the Hedge Counterparties
in connection with such termination have been paid in full, and (iii) all sums
due the Indenture Trustee pursuant to this Indenture have been paid, release any
remaining portion of the Indenture Collateral that secured the Notes from the
lien of this Indenture. The Indenture Trustee shall release property from the
lien of this Indenture pursuant to this subsection 8.05(b) only upon receipt of
a request from the Issuer accompanied by an Officer's Certificate and an Opinion
of Counsel stating that all conditions precedent to such release have been
satisfied.
SECTION 8.06 SURRENDER OF NOTES UPON FINAL PAYMENT.
By acceptance of any Note, the Holder thereof agrees to surrender such
Note to the Indenture Trustee promptly, prior to such Noteholder's receipt of
the final payment thereon.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
(a) Without the consent of the Holders of any Notes but with the prior
notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental, in form satisfactory to the Indenture
Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, 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, or to subject to the lien of
this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes and the Hedge Counterparties, or to surrender any
right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, that, such action
shall not as evidenced by an Opinion of Counsel delivered to the Indenture
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Trustee, adversely affect the interests of the Noteholders or the Hedge
Counterparties in any material respect;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to
or change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to add to the conditions, limitations and restrictions on the
authorized amount, terms and purposes of the issuance, authentication and
delivery of any Class of Notes, as herein set forth, additional
conditions, limitations and restrictions thereafter to be observed; and
(viii) to modify the restrictions on and procedures for resales and
other transfers of the Notes to reflect any changes in Applicable Law or
regulations (or the interpretation thereof) or to enable the Issuer or the
Indenture Trustee to rely upon the exemption from registration under the
Securities Act or the 1940 Act or to remove restrictions on resale or
transfer to the extent required hereunder.
The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes but with
prior notice to the Rating Agencies, 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 Notes or any Hedge
Counterparty under this Indenture; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, (i) adversely affect in any material
respect the interest of any Noteholder or any Hedge Counterparty or (ii) cause
the Issuer to be subject to an entity level tax or be classified as a taxable
mortgage pool within the meaning of Section 7701(i) of the Code.
(c) Notwithstanding any provision contained herein to the contrary, prior
to entering into any supplemental indenture pursuant to Section 9.01, the Issuer
and Indenture Trustee shall obtain written confirmation from Moody's that entry
by the Issuer and Indenture Trustee into such supplemental indenture satisfies
the Xxxxx'x Rating Condition.
SECTION 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS.
The Issuer and the Indenture Trustee, when authorized by an Issuer Order,
also may, with prior notice to the Rating Agencies and with the consent of the
Majority Noteholders by Act of such Holders and the Hedge Counterparties, 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 Notes under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Note
affected thereby:
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(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof or the
interest rate thereon, change the provisions of this Indenture relating to
the application of collections on, or the proceeds of the sale of the
Indenture Collateral to payment of principal of or interest on the Notes,
or change any place of payment where, or the coin or currency in which,
any Note or the interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes on or after
the respective due dates thereof;
(ii) reduce the percentage of the Aggregate Outstanding Principal
Balance, 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 any provision of this Indenture or
defaults hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding" or modify or alter the exception in
the definition of the term "Holder";
(iv) reduce the percentage of the Aggregate Outstanding Principal
Balance required to direct the Indenture Trustee to direct the Issuer to
sell or liquidate the Indenture Collateral pursuant to Section 5.04;
(v) modify any provision of this Section 9.02 except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the Transaction Documents cannot be
modified or waived without the consent of the Holder of each Note affected
thereby;
(vi) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Indenture
Collateral or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject
hereto or deprive any Noteholder or any Hedge Counterparty of the security
provided by the lien of this Indenture; and provided, further, that such
action shall not, as evidenced by an Opinion of Counsel, cause the Issuer
to be subject to an entity level tax or be classified as a taxable
mortgage pool within the meaning of Section 7701(i) of the Code; or
(vii) change the definition of Eligible Loan.
Notwithstanding any provision contained herein to the contrary, in no
event may Section 3.32 of the Indenture be amended or modified in any respect
without the prior written consent of each Hedge Counterparty.
The Indenture Trustee may in its discretion determine whether or not any
Notes would be affected by any supplemental indenture and any such determination
shall be conclusive upon the Holders of all Notes, whether theretofore or
thereafter authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith.
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It shall not be necessary for any Act of Noteholders or Hedge
Counterparties under this Section 9.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section 9.02, the Indenture Trustee
shall mail to the Holders of the Notes and the Hedge Counterparties to which
such amendment or supplemental indenture relates a copy of such supplemental
Indenture or a notice 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.
Notwithstanding any provision contained herein to the contrary, prior to
entering into any supplemental indenture pursuant to Section 9.02, the Issuer
and Indenture Trustee shall obtain written confirmation from Moody's that entry
by the Issuer and Indenture Trustee into such supplemental indenture satisfies
the Xxxxx'x Rating Condition.
SECTION 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or permitting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modification thereby
of the trusts created by this Indenture, the Indenture Trustee shall be entitled
to receive, and subject to Sections 6.01 and 6.02, 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,
liabilities or immunities under this Indenture or otherwise. The Indenture
Trustee shall provide copies of each supplemental indenture to the Rating
Agencies.
SECTION 9.04 EFFECT OF SUPPLEMENTAL INDENTURE.
Upon the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and shall be deemed to be modified
and amended in accordance therewith with respect to the Notes affected thereby,
and the respective rights, limitations of rights, obligations, duties,
liabilities and immunities under this Indenture of the Indenture Trustee, the
Issuer and the Noteholders shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 9.05 [RESERVED].
SECTION 9.06 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX 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 or the
Indenture Trustee shall so determine, new Notes so modified as to
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conform, in the opinion of the 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
Notes.
ARTICLE X
[RESERVED]
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 COMPLIANCE CERTIFICATES AND OPINIONS, ETC.
(a) 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 Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and, if required, an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, 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 any provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with;
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with; and
(v) if the signer of such Trust Certificate or Opinion is required
to be Independent, the Statement required by the definition of the term
"Independent".
(b) (1) Prior to the deposit of any Indenture Collateral or other property
or securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation
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imposed in subsection 11.01(a) or elsewhere in this Indenture, furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the opinion of
each person signing such certificate as to the estimated fair value (within
ninety (90) days of such deposit) to the Issuer of the Indenture Collateral or
other property or securities to be so deposited.
(ii) Subject to clause (iii), whenever any property or securities
are to be released from the lien of this Indenture, the Issuer shall also
furnish to the Indenture Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate as to the
estimated fair value (within ninety (90) days of such release) of the
property or securities proposed to be released and stating that in the
opinion of such person the proposed release will not impair the security
under this Indenture in contravention of the provisions hereof.
(iii) Notwithstanding any provision of this Indenture, the Issuer
may, without compliance with the requirements of the other provisions of
this Section 11.01, (A) collect, sell or otherwise dispose of Loans and
Indenture Collateral as and to the extent permitted or required by the
Transaction Documents, or (B) make cash payments out of the Trust
Accounts.
SECTION 11.02 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
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.
Any certificate or opinion of an Authorized Officer 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 that the certificate
or opinion or representations with respect to the matters upon which the
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Issuer, the Trust Depositor, or other
appropriate Person, stating that the information with respect to such factual
matters is in the possession of the Servicer, the Issuer, the Trust Depositor or
such other Person, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
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.
Whenever 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 in all material respects, at the time of the
granting of
69
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 Article VI.
SECTION 11.03 ACTS OF NOTEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Noteholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by agents 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 Noteholders
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 11.03.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration 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 Note.
SECTION 11.04 NOTICES, ETC., TO INDENTURE TRUSTEE AND OTHERS.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or act of Noteholders is to be made upon, given or
furnished to or filed with:
(i) the Indenture Trustee by any Noteholder or by the Issuer shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Indenture Trustee and received at the
Corporate Trust Office, or
(ii) the Issuer by the Indenture Trustee or by any Noteholder shall
be sufficient for every purpose hereunder if in writing and mailed first -
class, postage prepaid to the Issuer addressed to: CapitalSource
Commercial Loan Trust 2002 - 2, c/o Wilmington Trust Company, Xxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration, with a copy to CapitalSource Finance LLC at
70
0000 Xxxxxxx Xxxxxx, 12th Floor, Chevy Chase, Maryland 20815, Attention:
Xxxxx X. Xxxxxxx, or at any other address previously furnished in writing
to the Indenture Trustee by the Issuer, CapitalSource or the Trust
Depositor. The Issuer shall promptly transmit any notice received by it
from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
S&P, at the following address: Standard and Poor's Rating Service, 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Surveillance: Asset -
Backed Services, (ii) in the case of Fitch, at the following address: 00 Xxxx
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: CDO Surveillance,
and (iii) in the case of Moody's, at the following address: Xxxxx'x Investors
Service, ABS Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxxxxxx@xxxxxx.xxx; or as to each of the foregoing, at such other address
as shall be designated by written notice to the other parties; provided,
however, that no notice shall be required to be given to the Rating agencies
until a Class of Notes has been rated by such Rating Agency.
Notices required to be given to any Hedge Counterparty by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to the notice address
shown in the register kept by the Issuer, as provided to the Indenture Trustee.
SECTION 11.05 NOTICES TO NOTEHOLDERS; WAIVER.
Where this Indenture provides for notice to Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, by nationally recognized overnight courier or by first
- class, postage prepaid to each Noteholder affected by such event, at his
address as it appears on the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Noteholders is given by mail, neither the failure to
mail such notice nor any defect in any notice so mailed to any particular
Noteholder shall affect the sufficiency of such notice with respect to other
Noteholders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
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 Noteholders 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 a waiver.
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 Noteholders 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.
71
Where this Indenture provides for notice to the Rating Agencies, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute an Event of Default.
SECTION 11.06 ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer may enter into any agreement with any Holder of a Note
providing for a method of payment, or notice by the Indenture Trustee or any
Paying Agent to such Holder, that is different from the methods provided for in
this Indenture for such payments or notices. The Issuer will furnish to the
Indenture Trustee a copy of each such agreement and the Indenture Trustee will
cause payments to be made and notices to be given in accordance with such
agreements.
SECTION 11.07 [RESERVED].
SECTION 11.08 EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 11.09 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture and the Notes by the Issuer
shall bind its successors and assigns, whether so expressed or not. All
agreements of the Indenture Trustee in this Indenture shall bind its successors,
co-trustees and agents.
SECTION 11.10 SEVERABILITY.
In case any provision in this Indenture or in the Notes 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 11.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall give
to any Person, other than the parties hereto and their successors hereunder, and
the Noteholders, and any other party secured hereunder (including the Hedge
Counterparties), and any other Person with an ownership interest in any part of
the Indenture Collateral, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 LEGAL HOLIDAYS.
In any case where the date on which any payment is due shall not be a
Business Day, then (notwithstanding any other provision of the Notes 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 date on
which nominally due, and no interest shall accrue for the period from and after
any such nominal date.
72
SECTION 11.13 GOVERNING LAW.
(a) THIS INDENTURE, EACH SUPPLEMENT AND THE NOTES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS INDENTURE. Each party hereto (i) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
waiver and (ii) acknowledges that it and the other parties hereto have been
induced to enter into this Indenture by, among other things, the mutual waivers
and certifications in this subsection 11.13(b).
SECTION 11.14 COUNTERPARTS.
This Indenture may be executed in any number of counterparts (including by
facsimile), 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.
SECTION 11.15 [RESERVED].
SECTION 11.16 ISSUER OBLIGATION.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the
Notes or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Indenture Trustee or the Owner
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director,
employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any holder of a beneficial interest in the Issuer, the
Owner Trustee or the Indenture Trustee or of any successor or assign of the
Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their individual
capacity) and except that any such partner, owner or beneficiary shall be fully
liable, to the extent provided by applicable law, for any unpaid consideration
for stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee and the
Trust Company shall be subject to, and entitled to the benefits of, the terms
and provisions of the Trust Agreement.
SECTION 11.17 NO PETITION.
The Indenture Trustee, by entering into this Indenture, and each
Noteholder, by accepting a Note, hereby covenant and agree that they will not
prior to the date which is one (1) year and
73
one (1) day after payment in full of each Class of Notes rated by any Rating
Agency, institute against the Trust Depositor or the Issuer, or join in any
institution against the Trust Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, this Indenture or any
of the Transaction Documents.
SECTION 11.18 INSPECTION; CONFIDENTIALITY.
The Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, during the Issuer's normal business
hours, and in a manner that does not unreasonably interfere with the Issuer's
normal operations, to examine all the books of account, records, reports and
other papers of the Issuer, to make copies and extracts therefrom, to cause such
books to be audited by Independent certified public accountants, and to discuss
the Issuer's affairs, finances and accounts with the Issuer's officers,
employees, and Independent certified public accountants, all at such reasonable
times, in such reasonable manner, and as often as may be reasonably requested.
THE INDENTURE TRUSTEE SHALL AND SHALL CAUSE ITS REPRESENTATIVES, ITS LEGAL
COUNSEL AND ITS AUDITORS TO HOLD IN CONFIDENCE ALL SUCH INFORMATION EXCEPT TO
THE EXTENT DISCLOSURE MAY BE REQUIRED BY LAW (AND ALL REASONABLE APPLICATIONS
FOR CONFIDENTIAL TREATMENT ARE UNAVAILING) AND EXCEPT TO THE EXTENT THAT THE
INDENTURE TRUSTEE MAY REASONABLY DETERMINE THAT SUCH DISCLOSURE IS CONSISTENT
WITH ITS OBLIGATIONS HEREUNDER AND UNDER APPLICABLE LAW.
SECTION 11.19 LIMITATION OF LIABILITY.
It is expressly understood and agreed by the parties hereto that (a) this
Indenture is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Owner Trustee on behalf of the Issuer
under the Trust Agreement, in the exercise of the powers and authority conferred
and vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose of binding only the Issuer, (c) nothing herein
contained shall be construed as creating any liability on Wilmington Trust
Company individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived by
the parties to this Indenture and by any person claiming by, through or under
them and (d) under no circumstances shall Wilmington Trust Company be personally
liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaking by the Issuer under this Indenture or any related
documents.
SECTION 11.20 DISCLAIMER AND SUBORDINATION.
Each Noteholder by accepting a Note and each Hedge Counterparty by
accepting the benefits of this Indenture acknowledges and agrees that this
Indenture and the Notes represent a debt obligation of the Issuer only and do
not represent an interest in any assets (other than the Indenture Collateral) of
the Trust Depositor (including by virtue of any deficiency claim in respect of
obligations not paid or otherwise satisfied from the Trust Assets and proceeds
thereof).
74
In furtherance of and not in derogation of the foregoing, each Noteholder by
accepting a Note and each Hedge Counterparty by accepting the benefits of this
Indenture acknowledges and agrees that it shall have no right, title or interest
in or to any assets (or interests therein) (other than the Indenture Collateral)
conveyed or purported to be conveyed by the Trust Depositor to another
securitization trust (i.e., other than the Issuer) or other Person or Persons in
connection therewith (whether by way of a sale, capital contribution or by
virtue of the granting of a Lien) ("Other Assets"). To the extent that,
notwithstanding the agreements and provisions contained in the preceding
sentences of this Section 11.20, any Noteholder or Hedge Counterparty either (i)
asserts an interest in or claim to, or benefit from, Other Assets, whether
asserted against or through the Trust Depositor or any other Person owned by the
Trust Depositor, or (ii) is deemed to have any such interest, claim or benefit
in or from Other Assets, whether by operation of law, legal process, pursuant to
applicable provisions of any applicable insolvency laws or otherwise (including
without limitation by virtue of Section 111l(b) of the federal Bankruptcy Code
or any successor provision having similar effect under the Bankruptcy Code or
any successor provision having similar effect under the Bankruptcy Code), and
whether deemed asserted against or through the Trust Depositor or any other
Person owned by the Trust Depositor, then each Noteholder by accepting a Note
and each Hedge Counterparty by accepting the benefits of this Indenture further
acknowledges and agrees that any such interest, claim or benefit in or from
Other Assets is and shall be expressly subordinated to the indefeasible payment
in full of all obligations and liabilities of the Trust Depositor which, under
the terms of the relevant documents relating to the securitization of such Other
Assets, are entitled to be paid from, entitled to the benefits of, or otherwise
secured by such Other Assets (whether or not any such entitlement or security
interest is legally perfected or otherwise entitled to a priority of
distribution or application under applicable law, including any applicable
insolvency laws, and whether asserted against the Trust Depositor or any other
Person owned by the Trust Depositor), including, without limitation, the payment
of post - petition interest on such other obligations and liabilities. This
subordination agreement shall be deemed a subordination agreement within the
meaning of Section 510(a) of the Bankruptcy Code. Each Noteholder and each Hedge
Counterparty further acknowledges and agrees that no adequate remedy at law
exists for a breach of this Section 11.20 and that the terms and provisions of
this Section 11.20 may be enforced by an action for specific performance.
Nothing in this Section 11.20 shall in any way affect the rights of any Hedge
Counterparty against any guaranty by CapitalSource Finance LLC of the Issuer's
obligations under any Hedge.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
75
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
CAPITALSOURCE COMMERCIAL LOAN TRUST
2002-2
By: WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as
Owner Trustee on behalf of the Trust
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
--------------------------------------
Title: Financial Services Officer
-------------------------------------
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, NOT IN ITS individual capacity
but solely as the Indenture Trustee
By: /s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------------
Title: Assistant Vice President
-------------------------------------
S-1
STATE OF Delaware )
) ss.:
COUNTY OF New Castle )
On this 28th day of October, 2002, before me personally appeared Xxxxxxxx
X. Xxxxxxxx, to me known, who being by me duly sworn, did depose and say,
that he resides in Wilmington, Delaware, that he is the Financial Services
Officer of the Owner Trustee, one of the corporations described in and which
executed the above instrument; and that he signed his name thereto by like
order.
/s/ Xxxxx X. Xxxxxxxx
--------------------------------
Notary Public
STATE OF Minnesota )
) ss.:
COUNTY OF Hennepin )
On this ___ day of October, 2002, before me personally appeared Xxxxxxx
Xxxxx, to me known, who being by me duly sworn, did depose and say, that he
resides at _____________, ______________________________ ______ that he is the
Assistant Vice President of the Indenture Trustee, one of the corporations
described in and which executed the above instrument; and that he signed his
name thereto by like order.
/s/ Xxxxx X. Xxxxx
--------------------------------
Notary Public
EXHIBIT A-1
[FORM OF CLASS A NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-2
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE
SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT
THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF RULE 501 (a)(1)-(3) OR (7) UNDER THE SECURITIES ACT) PURCHASING
FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN
EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE
INDENTURE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS OR IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION,
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANOTHER EXEMPTION
AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (5) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE
OF THIS NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT
IS NOT, AND IS NOT PURCHASING THIS NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO
TITLE I OF ERISA AND/OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE)
THAT IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR
(II) XXXX 00-00, XXXX 00-00, XXXX 00-00, XXXX 00-0, XXXX 84-14 OR SOME OTHER
PROHIBITED TRANSACTION EXEMPTION IS
A-1-1
APPLICABLE TO THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE BY THE
ACQUIRER.
[IF HELD BY DTC] [UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF REGULATION S GLOBAL NOTE] [THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER
OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL ISSUE DATE OF THE NOTES,
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 SECURITIES ACT.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
A-1-2
REGISTERED $_______________
No. A -
SEE REVERSE FOR CERTAIN DEFINITIONS
[CUSIP NO. ___________]
[Reg S ISIN NO. ________]
[Reg S CUSIP No._________]
[Common Code No. ________]
CapitalSource Commercial Loan Trust 2002 - 2, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to ______________________
, or registered assigns, the principal sum of ___________ DOLLARS payable on
each Remittance Date in an amount equal to the result obtained by multiplying
(i) a fraction the numerator of which is the initial principal balance of this
Class A Note and the denominator of which is the Initial Class A Principal
Balance by (ii) the aggregate amount, if any, payable from the Note Distribution
Account in respect of principal on the Class A Notes.
The principal of and interest on this Class A Note are payable in such
coin or currency of the United States as at the time of payment is legal tender
for payment of public and private debts. All payments made by the Issuer with
respect to this Class A Note shall be applied first to interest due and payable
on this Class A Note as provided above and then to the unpaid principal of this
Class A Note.
Reference is made to the further provisions of this Class A Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Class A Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Class A
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-1-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer as of the date set forth
below.
Date: October 30, 2002
CAPITALSOURCE COMMERCIAL LOAN
TRUST 2002 - 2
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as
Owner Trustee under the
Trust Agreement
By:_______________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes of CapitalSource Commercial Loan Trust
2002 - 2 designated above and referred to in the within - mentioned Indenture.
Date: October 30, 2002
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely
as Indenture Trustee,
By: ____________________________
Authorized Signatory
A-1-4
[REVERSE OF NOTE]
This Class A Note is one of a duly authorized issue of Class A Notes of
the Issuer, designated as its CapitalSource Commercial Loan Trust Notes, Series
2002 - 2, Class A (herein called the "Class A Notes"), all issued under an
Indenture, dated as of October 30, 2002 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and Xxxxx Fargo
Bank Minnesota, National Association, as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Class A
Notes. The Class A Notes are subject to all terms of the Indenture. All terms
used in this Class A Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended.
Notwithstanding the foregoing, the entire unpaid principal amount of the
Class A Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee, or the Majority
Noteholders have declared the Class A Notes to be immediately due and payable in
the manner provided in Section 5.02 of the Indenture. All principal payments on
the Class A Notes shall be made pro rata to the Class A Noteholders entitled
thereto.
Each Class A Noteholder or Class A Note Owner, by acceptance of a Class A
Note or, in the case of a Class A Note Owner, a beneficial interest in a Class A
Note covenants and agrees that no recourse may be taken, directly or indirectly,
with respect to the obligations of the Issuer under the Indenture on the Class A
Notes or under any certificate or other writing delivered in connection
therewith, against the Trust Depositor, the Servicer, the Indenture Trustee or
the Owner Trustee in its individual capacity.
On each Remittance Date, commencing November 20, 2002, the Indenture
Trustee or Paying Agent shall distribute to the Person in whose name this Class
A Note is registered at the close of business on the Record Date an amount equal
to the product of the Percentage Interest of the Class A Notes evidenced by this
Class A Note and the amount required to be distributed to Holders of Class A
Notes on such Remittance Date pursuant to Section 3.05 of the Indenture.
During each Interest Accrual Period, this Class A Note will bear interest
at the Class A Note Interest Rate.
Distributions on this Class A Note will be made by the Indenture Trustee
or Paying Agent by check mailed to the address of the Person entitled thereto as
such name and address shall appear on the Note Register or, upon written request
to the Indenture Trustee, by wire transfer of immediately available funds to the
account of the Person entitled thereto as shall appear on the Note Register
without the presentation or surrender of this Note or the making of any notation
thereon, at a bank or other entity having appropriate facilities therefor, and,
in the
A-1-5
case of wire transfers, at the expense of such Person unless such Person shall
own of record Class A Notes which have Initial Class A Principal Balances
aggregating at least $1,000,000.
Notwithstanding the above, the final distribution on this Class A Note
will be made after due notice by the Indenture Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class A Note at
the office or agency maintained for that purpose by the Note Registrar in New
York, New York.
As provided in the Indenture and the Sale and Servicing Agreement,
deposits and withdrawals from the Note Distribution Account, the Principal and
Interest Account and the Reserve Fund may be made by the Indenture Trustee from
time to time for purposes other than distributions to Class A Noteholders, such
purposes including reimbursement to the Servicer of advances made, or certain
expenses incurred, by it, and investment in Permitted Investments.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Class A Note is registrable in the Note Register
upon surrender of this Class A Note for registration of transfer at the offices
or agencies maintained by the Note Registrar in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Indenture Trustee, duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more new
Class A Notes in authorized denominations evidencing the same aggregate
undivided Percentage Interest will be issued to the designated transferee or
transferees.
The Class A Note is issuable only as a registered Class A Note. As
provided in the Indenture and subject to certain limitations therein set forth,
the Class A Note is exchangeable for a new Class A Note evidencing the same
undivided ownership interest, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Note Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Servicer, the Trust Depositor, the Indenture Trustee and the Note
Registrar, and any agent of any of the foregoing, may treat the person in whose
name this Class A Note is registered as the owner hereof for all purposes, and
none of the foregoing shall be affected by notice to the contrary.
The obligations and responsibilities created by the Indenture shall
terminate upon the payment to Class A Noteholders of all amounts required to be
paid to them pursuant to the Indenture and the Sale and Servicing Agreement and
the disposition of all property held as part of the Indenture Collateral.
A-1-6
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an interest in
another Global Note or for an Individual Note, or exchanges of a part of another
Global Note or Individual Note for an interest in this Global Note, have been
made:
Principal Amount of
this Global Note
Amount of decrease in Amount of increase in following such Signature of
Principal Amount of Principal Amount of decrease Responsible Officer
Date of Exchange this Global Note this Global Note (or increase) of Note Registrar
---------------- ---------------- ---------------- ------------- -----------------
----------
(1) This should be included only if the Note is issued in global form.
A-1-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: _____________________________ ______________________________(2)
Signature Guaranteed:
----------
(2) NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-1-8
EXHIBIT A - 2
[FORM OF CLASS B NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002 - 2
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES
THAT THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF RULE 501 (a)(1) - (3) OR (7) UNDER THE SECURITIES ACT) PURCHASING
FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN
EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE
INDENTURE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS OR IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION,
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANOTHER EXEMPTION
AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (5) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE
OF THIS NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT
IS NOT, AND IS NOT PURCHASING THIS NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO
TITLE I OF ERISA AND/OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE)
THAT IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR
(II) XXXX 00 - 00, XXXX 00 - 00, XXXX 00 - 00, XXXX 00 - 0, XXXX 84 - 14 OR SOME
OTHER PROHIBITED TRANSACTION EXEMPTION IS
A-2-1
APPLICABLE TO THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE BY THE
ACQUIRER.
[IF HELD BY DTC] [UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF REGULATION S GLOBAL NOTE] [THIS NOTE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL ISSUE DATE OF THE
NOTES, 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 SECURITIES ACT.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THE RIGHTS OF THE HOLDER OF THIS CLASS B NOTE TO RECEIVE INTEREST ARE
SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF THE CLASS A NOTES TO RECEIVE
INTEREST AND THE RIGHTS OF THE HOLDERS OF THIS CLASS B NOTE TO RECEIVE PRINCIPAL
ARE SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF THE CLASS A NOTES TO RECEIVE
PRINCIPAL AND INTEREST.
A-2-2
REGISTERED $_______________
No. B -
SEE REVERSE FOR CERTAIN DEFINITIONS
[CUSIP NO. __________]
[Reg S ISIN NO._______]
[Reg S CUSIP No._________]
[Common Code No._________]
CapitalSource Commercial Loan Trust 2002 - 2, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to ______________________,
or registered assigns, the principal sum of ___________ DOLLARS payable on each
Remittance Date in an amount equal to the result obtained by multiplying (i) a
fraction the numerator of which is the initial principal balance of this Class B
Note and the denominator of which is the Initial Class B Principal Balance by
(ii) the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the Class B Notes pursuant to Section 3.05 of the
Indenture.
The principal of and interest on this Class B Note are payable in such
coin or currency of the United States as at the time of payment is legal tender
for payment of public and private debts. All payments made by the Issuer with
respect to this Class B Note shall be applied first to interest due and payable
on this Class B Note as provided above and then to the unpaid principal of this
Class B Note.
Reference is made to the further provisions of this Class B Note set forth
on the reverse hereof, which shall have the same effect as though fully set
forth on the face of this Class B Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Class B
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-2-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer as of the date set forth
below.
Date: October 30, 2002
CAPITALSOURCE COMMERCIAL LOAN
TRUST 2002-2
By: WILMINGTON TRUST COMPANY,
not in its individual
capacity but solely as Owner
Trustee under the Trust
Agreement
By:_________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes of CapitalSource Commercial Loan Trust 2002-2
designated above and referred to in the within-mentioned Indenture.
Date: October 30, 2002
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely
as Indenture Trustee,
By: ____________________________
Authorized Signatory
A-2-4
[REVERSE OF NOTE]
This Class B Note is one of a duly authorized issue of Class B Notes of
the Issuer, designated as its CapitalSource Commercial Loan Trust Notes, Series
2002-2, Class B (herein called the "Class B Notes"), all issued under an
Indenture, dated as of October 30, 2002 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and Xxxxx Fargo
Bank Minnesota, National Association, as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Class B
Notes. The Class B Notes are subject to all terms of the Indenture. All terms
used in this Class B Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Class B Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee, or the
Majority Noteholders have declared the Class B Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class B Notes shall be made pro rata to the Class B Noteholders
entitled thereto.
Each Class B Noteholder or Class B Note Owner, by acceptance of a Class
B Note or, in the case of a Class B Note Owner, a beneficial interest in a Class
B Note covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture on
the Class B Notes or under any certificate or other writing delivered in
connection therewith, against the Trust Depositor, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity or any of their
Affiliates.
On each Remittance Date, commencing November 20, 2002, the Indenture
Trustee or Paying Agent shall distribute to the Person in whose name this Class
B Note is registered at the close of business on the Record Date an amount equal
to the product of the Percentage Interest of the Class B Notes evidenced by this
Class B Note and the amount required to be distributed to Holders of Class B
Notes on such Remittance Date pursuant to Section 3.05 of the Indenture.
During each Interest Accrual Period, this Class B Note will bear
interest at the Class B Note Interest Rate.
Distributions on this Class B Note will be made by the Indenture
Trustee or Paying Agent by check mailed to the address of the Person entitled
thereto as such name and address shall appear on the Note Register or, upon
written request to the Indenture Trustee, by wire transfer of immediately
available funds to the account of the Person entitled thereto as shall appear on
the Note Register without the presentation or surrender of this Note or the
making of any notation thereon, at a bank or other entity having appropriate
facilities therefor, and, in the case of wire transfers, at the expense of such
Person unless such Person shall own of record Class B Notes which have Initial
Class B Principal Balances aggregating at least $1,000,000.
A-2-5
Notwithstanding the above, the final distribution on this Class B Note
will be made after due notice by the Indenture Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class B Note at
the office or agency maintained for that purpose by the Note Registrar in New
York, New York.
As provided in the Indenture and the Sale and Servicing Agreement,
deposits and withdrawals from the Note Distribution Account, the Principal and
Interest Account and the Reverse Fund may be made by the Indenture Trustee from
time to time for purposes other than distributions to Class B Noteholders, such
purposes including reimbursement to the Servicer of advances made, or certain
expenses incurred, by it, and investment in Permitted Investments.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Class B Note is registrable in the Note Register
upon surrender of this Class B Note for registration of transfer at the offices
or agencies maintained by the Note Registrar in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Indenture Trustee, duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more new
Class B Notes in authorized denominations evidencing the same aggregate
undivided Percentage Interest will be issued to the designated transferee or
transferees.
The Class B Note is issuable only as a registered Class B Note. As
provided in the Indenture and subject to certain limitations therein set forth,
the Class B Note is exchangeable for a new Class B Note evidencing the same
undivided ownership interest, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Note Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Servicer, the Trust Depositor, the Indenture Trustee and the Note
Registrar, and any agent of any of the foregoing, may treat the person in whose
name this Class B Note is registered as the owner hereof for all purposes, and
none of the foregoing shall be affected by notice to the contrary.
The obligations and responsibilities created by the Indenture shall
terminate upon the payment to Class B Noteholders of all amounts required to be
paid to them pursuant to the Indenture and the Sale and Servicing Agreement and
the disposition of all property held as part of the Indenture Collateral.
A-2-6
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(3)
The following exchanges of a part of this Global Note for an interest
in another Global Note or for an Individual Note, or exchanges of a part of
another Global Note or Individual Note for an interest in this Global Note, have
been made:
Principal Amount of
this Global Note
Amount of decrease in Amount of increase in following such Signature of
Principal Amount of Principal Amount of decrease Responsible Officer
Date of Exchange this Global Note this Global Note (or increase) of Note Registrar
---------------- ---------------- ---------------- ------------- -----------------
----------------------------
(3) This should be included only if the Note is issued in global form.
A-2-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: _________________________ _____________________________(4)
Signature Guaranteed:
___________________________
(4) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A_2_8
EXHIBIT A-3
[FORM OF CLASS C NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-2
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES
THAT THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF RULE 501 (a)(1)-(3) OR (7) UNDER THE SECURITIES ACT) PURCHASING
FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN
EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE
INDENTURE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS OR IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION,
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANOTHER EXEMPTION
AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (5) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE
OF THIS NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT
IS NOT, AND IS NOT PURCHASING THIS NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO
TITLE I OF ERISA AND/OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE)
THAT IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR
(II) XXXX 00-00, XXXX 00-00, XXXX 00-00, XXXX 00-0, XXXX 84-14 OR SOME OTHER
PROHIBITED TRANSACTION EXEMPTION IS
A-3-1
APPLICABLE TO THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE BY THE
ACQUIRER.
[IF HELD BY DTC] [UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF REGULATION S GLOBAL NOTE] [THIS NOTE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL ISSUE DATE OF THE
NOTES, 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 SECURITIES ACT.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THE RIGHTS OF THE HOLDER OF THIS CLASS C NOTE TO RECEIVE INTEREST ARE
SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF THE CLASS A NOTES AND THE CLASS B
NOTES TO RECEIVE INTEREST AND THE RIGHTS OF THE HOLDERS OF THIS CLASS C NOTE TO
RECEIVE PRINCIPAL ARE SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF THE CLASS A
NOTES AND THE CLASS B NOTES TO RECEIVE PRINCIPAL AND INTEREST.
A-3-2
REGISTERED $_______________
No. C -
SEE REVERSE FOR CERTAIN DEFINITIONS
[CUSIP NO. __________]
[Reg S ISIN NO._______]
[Reg S CUSIP No._________]
[Common Code No._________]
CapitalSource Commercial Loan Trust 2002 - 2, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of ___________
DOLLARS payable on each Remittance Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is the initial
principal balance of this Class C Note and the denominator of which is the
Initial Class C Principal Balance by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the Class C Notes
pursuant to Section 3.05 of the Indenture.
The principal of and interest on this Class C Note are payable in such
coin or currency of the United States as at the time of payment is legal tender
for payment of public and private debts. All payments made by the Issuer with
respect to this Class C Note shall be applied first to interest due and payable
on this Class C Note as provided above and then to the unpaid principal of this
Class C Note.
Reference is made to the further provisions of this Class C Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class C Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class C
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-3-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer as of the date set forth
below.
Date: October 30, 2002
CAPITALSOURCE COMMERCIAL LOAN TRUST
2002-2
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner Trustee under the Trust Agreement
By:____________________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes of CapitalSource Commercial Loan Trust 2002-2
designated above and referred to in the within-mentioned Indenture.
Date: October 30, 2002
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Indenture Trustee,
By: ___________________________________
Authorized Signatory
A-3-4
[REVERSE OF NOTE]
This Class C Note is one of a duly authorized issue of Class C Notes of
the Issuer, designated as its CapitalSource Commercial Loan Trust Notes, Series
2002-2, Class C (herein called the "Class C Notes"), all issued under an
Indenture, dated as of October 30, 2002 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and Xxxxx Fargo
Bank Minnesota, National Association, as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Class C
Notes. The Class C Notes are subject to all terms of the Indenture. All terms
used in this Class C Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Class C Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee, or the
Majority Noteholders have declared the Class C Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class C Notes shall be made pro rata to the Class C Noteholders
entitled thereto.
Each Class C Noteholder or Class C Note Owner, by acceptance of a Class
C Note or, in the case of a Class C Note Owner, a beneficial interest in a Class
C Note covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture on
the Class C Notes or under any certificate or other writing delivered in
connection therewith, against the Trust Depositor, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity or any of their
Affiliates.
On each Remittance Date, commencing November 20, 2002, the Indenture
Trustee or Paying Agent shall distribute to the Person in whose name this Class
C Note is registered at the close of business on the Record Date an amount equal
to the product of the Percentage Interest of the Class C Notes evidenced by this
Class C Note and the amount required to be distributed to Holders of Class C
Notes on such Remittance Date pursuant to Section 3.05 of the Indenture.
During each Interest Accrual Period, this Class C Note will bear
interest at the Class C Note Interest Rate.
Distributions on this Class C Note will be made by the Indenture
Trustee or Paying Agent by check mailed to the address of the Person entitled
thereto as such name and address shall appear on the Note Register or, upon
written request to the Indenture Trustee, by wire transfer of immediately
available funds to the account of the Person entitled thereto as shall appear on
the Note Register without the presentation or surrender of this Note or the
making of any notation thereon, at a bank or other entity having appropriate
facilities therefor, and, in the case of wire transfers, at the expense of such
Person unless such Person shall own of record Class C Notes which have Initial
Class C Principal Balances aggregating at least $1,000,000.
A-3-5
Notwithstanding the above, the final distribution on this Class C Note
will be made after due notice by the Indenture Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class C Note at
the office or agency maintained for that purpose by the Note Registrar in New
York, New York.
As provided in the Indenture and the Sale and Servicing Agreement,
deposits and withdrawals from the Note Distribution Account, the Principal and
Interest Account and the Reserve Fund may be made by the Indenture Trustee from
time to time for purposes other than distributions to Class C Noteholders, such
purposes including reimbursement to the Servicer of advances made, or certain
expenses incurred, by it, and investment in Permitted Investments.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Class C Note is registrable in the Note Register
upon surrender of this Class C Note for registration of transfer at the offices
or agencies maintained by the Note Registrar in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Indenture Trustee, duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more new
Class C Notes in authorized denominations evidencing the same aggregate
undivided Percentage Interest will be issued to the designated transferee or
transferees.
The Class C Note is issuable only as a registered Class C Note. As
provided in the Indenture and subject to certain limitations therein set forth,
the Class C Note is exchangeable for a new Class C Note evidencing the same
undivided ownership interest, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Note Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Servicer, the Trust Depositor, the Indenture Trustee and the Note
Registrar, and any agent of any of the foregoing, may treat the person in whose
name this Class C Note is registered as the owner hereof for all purposes, and
none of the foregoing shall be affected by notice to the contrary.
The obligations and responsibilities created by the Indenture with
respect to this Class C Note shall terminate upon the payment to Class C
Noteholders of all amounts required to be paid to them pursuant to the Indenture
and the Sale and Servicing Agreement and the disposition of all property held as
part of the Indenture Collateral with respect to this Class C Note.
A-3-6
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(5)
The following exchanges of a part of this Global Note for an interest
in another Global Note or for an Individual Note, or exchanges of a part of
another Global Note or Individual Note for an interest in this Global Note, have
been made:
Principal Amount of
this Global Note
Amount of decrease in Amount of increase in following such Signature of
Principal Amount of Principal Amount of decrease Responsible Officer
Date of Exchange this Global Note this Global Note (or increase) of Note Registrar
---------------- ---------------- ---------------- ------------- -----------------
----------------------------
(5) This should be included only if the Note is issued in global form.
A-3-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: ____________________________ ________________________________(4)
Signature Guaranteed:
--------------------------
(6) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
X-0-0
XXXXXXX X-0
[FORM OF CLASS D NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-2
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR
BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES
THAT THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF RULE 501 (a)(1)-(3) OR (7) UNDER THE SECURITIES ACT) PURCHASING
FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN
EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE
INDENTURE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS OR IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION,
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANOTHER EXEMPTION
AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (5) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE
OF THIS NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT
IS NOT, AND IS NOT PURCHASING THIS NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO
TITLE I OF ERISA AND/OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE)
THAT IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR
(II) XXXX 00-00, XXXX 00-00, XXXX 00-00, XXXX 00-0, XXXX 84-14 OR SOME OTHER
PROHIBITED TRANSACTION EXEMPTION IS
A-4-1
APPLICABLE TO THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE BY THE
ACQUIRER.
[IF HELD BY DTC] [UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[IF REGULATION S GLOBAL NOTE] [THIS NOTE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT AND PRIOR TO THE DATE THAT IS 40 DAYS AFTER
THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE ORIGINAL ISSUE DATE OF THE
NOTES, 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 SECURITIES ACT.]
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS CLASS D NOTE IS A PRINCIPAL ONLY NOTE AND DOES NOT BEAR ANY
INTEREST.
THE RIGHTS OF THE HOLDERS OF THIS CLASS D NOTE TO RECEIVE PRINCIPAL ARE
SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF THE CLASS A NOTES, THE CLASS B
NOTES AND THE CLASS C NOTES TO RECEIVE PRINCIPAL.
THE CLASS D NOTE MAY NOT BE TRANSFERRED BY THE INITIAL CLASS D
NOTEHOLDER UNTIL SUCH NOTEHOLDER HAS DELIVERED AN OPINION OF COUNSEL TO THE
INDENTURE TRUSTEE REGARDING THE TREATMENT OF SUCH CLASS D NOTE AS DEBT FOR
FEDERAL INCOME TAX PURPOSES.
A-4-2
REGISTERED $_______________
No. D-
SEE REVERSE FOR CERTAIN DEFINITIONS
CapitalSource Commercial Loan Trust 2002-2, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to
______________________, or registered assigns, the principal sum of ___________
DOLLARS payable on each Remittance Date in an amount equal to the result
obtained by multiplying (i) a fraction the numerator of which is the initial
principal balance of this Class D Note and the denominator of which is the
Initial Class D Principal Balance by (ii) the aggregate amount, if any, payable
from the Note Distribution Account in respect of principal on the Class D Notes
pursuant to Section 3.05 of the Indenture.
Distributions on this Class D Note are payable in such coin or currency
of the United States as at the time of payment is legal tender for payment of
public and private debts.
Reference is made to the further provisions of this Class D Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class D Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class D
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-4-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer as of the date set forth
below.
Date: October 30, 2002
CAPITALSOURCE COMMERCIAL LOAN
TRUST 2002-2
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely
as Owner Trustee under the Trust
Agreement
By:_______________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class D Notes of CapitalSource Commercial Loan Trust 2002-2
designated above and referred to in the within-mentioned Indenture.
Date: October 30, 2002
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Indenture Trustee,
By: _______________________________
Authorized Signatory
A-4-4
[REVERSE OF NOTE]
This Class D Note is one of a duly authorized issue of Class D Notes of
the Issuer, designated as its CapitalSource Commercial Loan Trust Notes, Series
2002 - 2, Class D (herein called the "Class D Notes"), all issued under an
Indenture, dated as of October 30, 2002 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and Xxxxx Fargo
Bank Minnesota, National Association, as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Class D
Notes. The Class D Notes are subject to all terms of the Indenture. All terms
used in this Class D Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Class D Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee, or the
Majority Noteholders have declared the Class D Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class D Notes shall be made pro rata to the Class D Noteholders
entitled thereto.
Each Class D Noteholder or Class D Note Owner, by acceptance of a Class
D Note or, in the case of a Class D Note Owner, a beneficial interest in a Class
D Note covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture on
the Class D Notes or under any certificate or other writing delivered in
connection therewith, against the Trust Depositor, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity or any of their
Affiliates.
On each Remittance Date, commencing November 20, 2002, the Indenture
Trustee or Paying Agent shall distribute to the Person in whose name this Class
D Note is registered at the close of business on the Record Date an amount equal
to the product of the Percentage Interest of the Class D Notes evidenced by this
Class D Note and the amount required to be distributed to Holders of Class D
Notes on such Remittance Date pursuant to Section 3.05 of the Indenture.
This Class D Note will not bear interest.
Distributions on this Class D Note will be made by the Indenture
Trustee or Paying Agent by check mailed to the address of the Person entitled
thereto as such name and address shall appear on the Note Register or, upon
written request to the Indenture Trustee, by wire transfer of immediately
available funds to the account of the Person entitled thereto as shall appear on
the Note Register without the presentation or surrender of this Note or the
making of any notation thereon, at a bank or other entity having appropriate
facilities therefor, and, in the case of wire transfers, at the expense of such
Person unless such Person shall own of record Class D Notes which have Initial
Class D Principal Balances aggregating at least $1,000,000.
A-4-5
Notwithstanding the above, the final distribution on this Class D Note
will be made after due notice by the Indenture Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class D Note at
the office or agency maintained for that purpose by the Note Registrar in New
York, New York.
As provided in the Indenture and the Sale and Servicing Agreement,
deposits and withdrawals from the Note Distribution Account, the Principal and
Interest Account and the Reserve Fund may be made by the Indenture Trustee from
time to time for purposes other than distributions to Class D Noteholders, such
purposes including reimbursement to the Servicer of advances made, or certain
expenses incurred, by it, and investment in Permitted Investments.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Class D Note is registrable in the Note Register
upon surrender of this Class D Note for registration of transfer at the offices
or agencies maintained by the Note Registrar in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Indenture Trustee, duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more new
Class D Notes in authorized denominations evidencing the same aggregate
undivided Percentage Interest will be issued to the designated transferee or
transferees.
The Class D Note is issuable only as a registered Class D Note. As
provided in the Indenture and subject to certain limitations therein set forth,
the Class D Note is exchangeable for a new Class D Note evidencing the same
undivided ownership interest, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Note Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Servicer, the Trust Depositor, the Indenture Trustee and the Note
Registrar, and any agent of any of the foregoing, may treat the person in whose
name this Class D Note is registered as the owner hereof for all purposes, and
none of the foregoing shall be affected by notice to the contrary.
The obligations and responsibilities created by the Indenture with
respect to this Class D Note shall terminate upon the payment to Class D
Noteholders of all amounts required to be paid to them pursuant to the Indenture
and the Sale and Servicing Agreement and the disposition of all property held as
part of the Indenture Collateral with respect to this Class D Note.
A-4-6
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(7)
The following exchanges of a part of this Global Note for an interest
in another Global Note or for an Individual Note, or exchanges of a part of
another Global Note or Individual Note for an interest in this Global Note, have
been made:
Principal Amount of
this Global Note
Amount of decrease in Amount of increase in following such Signature of
Principal Amount of Principal Amount of decrease Responsible Officer
Date of Exchange this Global Note this Global Note (or increase) of Note Registrar
---------------- ---------------- ---------------- ------------- -----------------
--------------------------
(7) This should be included only if the Note is issued in global form.
A-4-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: ____________________________ _________________________________(8)
Signature Guaranteed:
-------------------------
(8) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
X-0-0
XXXXXXX X-0
[FORM OF CLASS E NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-2
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE
SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT
THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS AND ONLY (1)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON THAT
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (WITHIN
THE MEANING OF RULE 501 (a)(1)-(3) OR (7) UNDER THE SECURITIES ACT) PURCHASING
FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN
EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE
INDENTURE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER REQUIREMENTS OF LAWS OR IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION,
(3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANOTHER EXEMPTION
AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS, OR (5) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE
OF THIS NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT
IS NOT, AND IS NOT PURCHASING THIS NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO
TITLE I OF ERISA AND/OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS
DEFINED IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33)
OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE)
THAT IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR
(II) XXXX 00-00, XXXX 00-00, XXXX 00-00, XXXX 00-0, XXXX 84-14 OR SOME OTHER
PROHIBITED TRANSACTION EXEMPTION IS
A-5-1
APPLICABLE TO THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE BY THE
ACQUIRER.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS CLASS E NOTE IS A PRINCIPAL ONLY NOTE AND DOES NOT BEAR ANY
INTEREST.
THIS CLASS E NOTE MAY NOT BE TRANSFERRED DIRECTLY OR INDIRECTLY TO (1)
EMPLOYEE BENEFIT PLANS, RETIREMENT ARRANGEMENTS, INDIVIDUAL RETIREMENT ACCOUNTS
OR XXXXX PLANS SUBJECT TO EITHER TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED, OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, OR (2) ENTITIES (INCLUDING INSURANCE COMPANY GENERAL
ACCOUNTS) WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF ANY SUCH
PLAN'S ARRANGEMENTS OR ACCOUNT'S INVESTMENT IN SUCH ENTITIES. FURTHER, THIS NOTE
MAY BE TRANSFERRED ONLY TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION
7701(a)(30) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF ONE OR MORE CLASS E
NOTES (A "TRANSFER") SHALL BE MADE UNLESS SIMULTANEOUSLY WITH THE TRANSFER (1) A
PROPORTIONATE AMOUNT OF TRUST CERTIFICATES ARE TRANSFERRED SO THAT THE RATIO OF
THE PERCENTAGE INTEREST OF THE TRUST CERTIFICATES SO TRANSFERRED TO ALL TRUST
CERTIFICATES AND THE RATIO OF THE PERCENTAGE INTEREST OF THE CLASS E NOTES SO
TRANSFERRED TO THE PERCENTAGE INTEREST OF ALL CLASS E NOTES ARE EQUAL, (2) THE
TRANSFERS OF THE TRUST CERTIFICATES AND CLASS E NOTES REFERRED TO HEREIN ARE
MADE TO THE SAME PERSON, AND (3) THE PERCENTAGE INTEREST OF THE TRUST
CERTIFICATES AND CLASS E NOTES, RESPECTIVELY, SO TRANSFERRED IS NO LESS THAN TEN
(10%) PERCENT.
THE RIGHTS OF THE HOLDERS OF THIS CLASS E NOTE TO RECEIVE PRINCIPAL ARE
SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF THE CLASS A NOTES, THE CLASS B
NOTES, THE CLASS C NOTES AND THE CLASS D NOTES TO RECEIVE PRINCIPAL.
A-5-2
REGISTERED $_______________
No. E -
SEE REVERSE FOR CERTAIN DEFINITIONS
CapitalSource Commercial Loan Trust 2002-2, a statutory trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to ______________________,
or registered assigns, the principal sum of ___________ DOLLARS payable on each
Remittance Date in an amount equal to the result obtained by multiplying (i) a
fraction the numerator of which is the initial principal balance of this Class E
Note and the denominator of which is the Initial Class E Principal Balance by
(ii) the aggregate amount, if any, payable from the Note Distribution Account in
respect of principal on the Class E Notes pursuant to Section 3.05 of the
Indenture.
Distributions on this Class E Note are payable in such coin or currency
of the United States as at the time of payment is legal tender for payment of
public and private debts.
Reference is made to the further provisions of this Class E Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Class E Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Class E
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
A-5-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Responsible Officer as of the date set forth
below.
Date: October 30, 2002
CAPITALSOURCE COMMERCIAL LOAN TRUST
2002-2
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee under the Trust Agreement
By:_______________________________
Authorized Signatory
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class E Notes of CapitalSource Commercial Loan Trust 2002-2
designated above and referred to in the within-mentioned Indenture.
Date: October 30, 2002 XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Indenture Trustee,
By: _______________________________
Authorized Signatory
A-5-4
[REVERSE OF NOTE]
This Class E Note is one of a duly authorized issue of Class E Notes of
the Issuer, designated as its CapitalSource Commercial Loan Trust Notes, Series
2002-2, Class E (herein called the "Class E Notes"), all issued under an
Indenture dated as of October 30, 2002 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and Xxxxx Fargo
Bank Minnesota, National Association, as indenture trustee (the "Indenture
Trustee", which term includes any successor Indenture Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights and obligations
thereunder of the Issuer, the Indenture Trustee and the Holders of the Class E
Notes. The Class E Notes are subject to all terms of the Indenture. All terms
used in this Class E Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Class E Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing and the Indenture Trustee, or the
Majority Noteholders have declared the Class E Notes to be immediately due and
payable in the manner provided in Section 5.02 of the Indenture. All principal
payments on the Class E Notes shall be made pro rata to the Class E Noteholders
entitled thereto.
Each Class E Noteholder or Class E Note Owner, by acceptance of a Class
E Note or, in the case of a Class E Note Owner, a beneficial interest in a Class
E Note covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer under the Indenture on
the Class E Notes or under any certificate or other writing delivered in
connection therewith, against the Trust Depositor, the Servicer, the Indenture
Trustee or the Owner Trustee in its individual capacity or any of their
Affiliates.
On each Remittance Date, commencing November 20, 2002, the Indenture
Trustee or Paying Agent shall distribute to the Person in whose name this Class
E Note is registered on the close of business on the Record Date an amount equal
to the product of the Percentage Interest of the Class E Notes evidenced by this
Class E Note and the amount required to be distributed to Holders of Class E
Notes on such Remittance Date pursuant to Section 3.05 of the Indenture.
Distributions on this Class E Note will be made by the Indenture
Trustee or Paying Agent by check mailed to the address of the Person entitled
thereto as such name and address shall appear on the Note Register or, upon
written request to the Indenture Trustee, by wire transfer of immediately
available funds to the account of the Person entitled thereto as shall appear on
the Note Register without the presentation or surrender of this Note or the
making of any notation thereon, at a bank or other entity having appropriate
facilities therefor, and, in the case of wire transfers, at the expense of such
Person unless such Person shall own of record Class E Notes which have Initial
Class E Principal Balances aggregating at least $1,000,000.
Notwithstanding the above, the final distribution on this Class E Note
will be made after due notice by the Indenture Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class E Note at
the office or agency maintained for that purpose by the Note Registrar in New
York, New York.
A-5-5
As provided in the Indenture and the Sale and Servicing Agreement,
deposits and withdrawals from the Note Distribution Account, the Principal and
Interest Account and the Reserve Fund may be made by the Indenture Trustee from
time to time for purposes other than distributions to Class E Noteholders, such
purposes including reimbursement to the Servicer of advances made, or certain
expenses incurred, by it, and investment in Permitted Investments.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Class E Note is registrable in the Note Register
upon surrender of this Class E Note for registration of transfer at the offices
or agencies maintained by the Note Registrar in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Indenture Trustee, duly executed by the holder hereof or
such holder's attorney duly authorized in writing, and thereupon one or more new
Class E Notes in authorized denominations evidencing the same aggregate
undivided Percentage Interest will be issued to the designated transferee or
transferees.
The Class E Note is issuable only as a registered Class E Note. As
provided in the Indenture and subject to certain limitations therein set forth,
the Class E Note is exchangeable for a new Class E Note evidencing the same
undivided ownership interest, as requested by the holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Note Registrar may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Servicer, the Trust Depositor, the Indenture Trustee and the Note
Registrar, and any agent of any of the foregoing, may treat the person in whose
name this Class E Note is registered as the owner hereof for all purposes, and
none of the foregoing shall be affected by notice to the contrary.
The obligations and responsibilities created by the Indenture shall
terminate upon the payment to Class E Noteholders of all amounts required to be
paid to them pursuant to the Indenture and the Sale and Servicing Agreement and
the disposition of all property held as part of the Indenture Collateral.
A-5-6
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _____________, attorney, to transfer said Note on the books kept
for registration thereof, with full power of substitution in the premises.
Dated: _______________________ _________________________________(9)
Signature Guaranteed:
-----------------------------
(9) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.
A-5-7
EXHIBIT B
LIST OF LOANS
See Exhibit G of the Sale and Servicing Agreement.
B-1
EXHIBIT C
WIRING INSTRUCTIONS FORM
_______________, 2002
[Paying Agent]
[Trustee]
------------------------
------------------------
------------------------
Re: CapitalSource Commercial Loan Trust Notes, Series 2002-2, [Class A]
[Class B] [Class C][Class D][Class E]
Dear Sir:
In connection with the sale of the above-captioned Note by
__________________________ to _____________________________, ("Transferee") you,
as Paying Agent, are instructed to make all remittances to Transferee as
Noteholder as of ____________, ____ by wire transfer. For such wire transfer,
the wiring instructions are as follows:
---------------------------
---------------------------
---------------------------
---------------------------
Transferee
Noteholder's mailing address:
Name:
Address:
C-1
EXHIBIT D - 1
FORM OF TRANSFEREE LETTER
CapitalSource Finance LLC,
as the Servicer
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxx Fargo Bank Minnesota, National Association,
as the Indenture Trustee
Sixth and Marquette Avenue, MAC N9311 - 161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset Backed Administration
__________, 20__
Re: CapitalSource Commercial Loan Trust Notes, Series 2002 - 2 Class A,
Class B, Class C, Class D and Class E Notes
Ladies and Gentlemen:
In connection with our acquisition of the above - captioned Notes, we certify
that (a) we understand that the Notes are not being registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
institutional "Accredited Investor," as defined in the Indenture pursuant to
which the Notes were issued (the "Indenture"), and have such knowledge and
experience in financial and business matters that we are capable of evaluating
the merits and risks of investments in the Notes, (c) we have had the
opportunity to ask questions of and receive answers from the Originator and the
Servicer concerning the purchase of the Notes and all matters relating thereto
or any additional information deemed necessary to our decision to purchase the
Notes, (d) we are acquiring the Notes for investment for our own account and not
with a view to any distribution of such Notes (but without prejudice to our
right at all times to sell or otherwise dispose of the Notes in accordance with
clause (f) below), (e) we have not offered or sold any Notes to, or solicited
offers to buy any Notes from, any person, or otherwise approached or negotiated
with any person with respect thereto, or taken any other action which would
result in a violation of Section 5 of the Act, (f) we will not sell, transfer or
otherwise dispose of any Notes unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, and if requested, we will
at our expense provide an opinion of counsel satisfactory to the addressees of
this certificate that such sale, transfer or other disposition may be made
pursuant to an exemption from the Act, (2) the purchaser or transferee of such
Note has executed and delivered to you a certificate to substantially the same
effect as this certificate if required by the Indenture, and (3) the purchaser
or transferee has otherwise complied with any conditions for transfer set forth
in the Indenture, (g) the purchaser is not acquiring a Note, directly or
indirectly, for or on behalf of an employee
D-1-1
benefit plan or other retirement arrangement subject to the Employee Retirement
Income Security Act of 1974, as amended, and/or Section 4975 of the Internal
Revenue Code of 1986, as amended, or any entity, the assets of which would be
deemed plan assets under the Department of Labor regulations set forth at 29
C.F.R. Section 2510.3 - 101; unless the purchaser is acquiring a Class A, Class
B, Class C or Class D Note and Prohibited Transaction Class Exemption ("PTCE")
84 - 14, XXXX 00 - 0, XXXX 00 - 00, XXXX 95 - 60 or PTCE 92 - 23 or some other
applicable prohibited transaction exemption is applicable to the acquisition and
holdings of such Class A, Class B, Class C or Class D Note, (h) if the purchaser
is acquiring a Class E Note, the purchaser is a U.S. Person, as such term is
defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended,
and (i) if the purchaser is acquiring a Class E Note, the purchaser also is
acquiring Trust Certificates such that the ratio and the Percentage Interest of
the Trust Certificates being acquired to all Trust Certificates and the ratio
and the Percentage Interest of the Class E Notes being acquired to all Class E
Notes are equal.
Very truly yours,
-------------------------------------
Print Name of Transferee
By:
---------------------------------
Responsible Officer
D-1-2
EXHIBIT D - 2
FORM OF RULE 144A CERTIFICATION
CapitalSource Finance LLC,
as the Servicer
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxx Fargo Bank Minnesota, National Association,
as the Indenture Trustee
Sixth and Marquette Avenue, MAC N9311 - 161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset Backed Administration
__________, 20__
Re: CapitalSource Commercial Loan Trust Notes, Series 2002 - 2 Class A,
Class B, Class C, Class D and Class E Notes
Ladies and Gentlemen:
In connection with our acquisition any of the above Notes we certify that (a) we
understand that the Notes are not being registered under the Securities Act of
1933, as amended (the "Act"), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity to
ask questions of and receive answers from Originator and the Servicer concerning
the purchase of the Notes and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Notes, (c) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Notes, any interest in the Notes or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Notes, any interest in the Notes or any other similar
security from, or otherwise approached or negotiated with respect to the Notes,
any interest in the Notes or any other similar security with, any person in any
manner, or made any general solicitation by means of general advertising or in
any other manner, or taken any other action, that would constitute a
distribution of the Notes under the Act or that would render the disposition of
the Notes a violation of Section 5 of the Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Notes, (d) we are a "qualified institutional
buyer" as that term is defined in Rule 144A under the Act and have completed the
form of certification to that effect attached hereto as Annex 1, (e) we are not
acquiring a Note, directly or indirectly, for or on behalf of an employee
benefit plan or other retirement arrangement subject to the Employee Retirement
Income Security Act of 1974, as amended, and/or Section 4975 of the Internal
Revenue Code of 1986, as amended, or any entity, the assets of which would be
deemed plan assets under the Department of Labor regulations set forth at 29
C.F.R. Section 2510.3 - 101; unless we are acquiring a Class A Note, Class B
Note, Class C Note or Class D Note and Prohibited Transaction Class Exemption
("PTCE") 84 - 14, PTCE 00 - 0,
X-0-0
XXXX 00 - 00, XXXX 95 - 60 or PTCE 92 - 23 or some other applicable prohibited
transaction exemption is applicable to the acquisition and holdings of such
Class A Note, Class B Note, Class C Note or Class D Note, (f) if we are
acquiring a Class E Note, we are a U.S. Person, as such term is defined in
Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended, and (g) if
the purchaser is acquiring a Class E Note, we also are acquiring Trust
Certificates such that the ratio and the Percentage Interest of the Trust
Certificates being acquired to all Trust Certificates and the ratio and the
Percentage Interest of the Class E Notes being acquired to all Class E Notes are
equal. We are aware that the sale to us is being made in reliance on Rule 144A.
We are acquiring the Notes for our own account or for resale pursuant to Rule
144A and further, understand that such Notes may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Act.
Very truly yours,
------------------------------------
Print Name of Transferee
By:
--------------------------------
Responsible Officer
D-2-2
ANNEX 1 TO EXHIBIT D - 2
[FORM OF CERTIFICATION]
[Date]
CapitalSource Finance LLC,
as the Servicer
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Xxxxx Fargo Bank Minnesota, National Association,
as the Indenture Trustee
Sixth and Marquette Avenue, MAC N9311 - 161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset Backed Administration
Re: CapitalSource Commercial Loan Trust Notes, Series 2002 - 2 Class A,
Class B, Class C, Class D and Class E Notes
Ladies and Gentlemen:
In connection with our purchase of the Notes, the undersigned certifies to each
of the parties to whom this letter is addressed that it is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Act")) as follows:
1. It owns and/or invests on a discretionary basis eligible securities
(excluding affiliate's securities, bank deposit notes and CD's, loan
participations, repurchase agreements, securities owned but subject to
a repurchase agreement and currency, interest rate and commodity
swaps), as described below:
Amount: $_________________; and
2. The dollar amount set forth above is:
a. greater than $100 million and the undersigned is one of the
following entities:
(1) [ ] an insurance company as defined in Section 2(13) of the
Act;* or
(2) [ ] an investment company registered under the Investment
Company Act or any business development company as
defined in Section 2(a)(48)
---------------------------
* A purchase by an insurance company for one or more of its separate accounts,
as defined by section 2(a)(37) of the Investment Company Act of 1940, which are
neither registered nor required to be registered thereunder, shall be deemed to
be a purchase for the account of such insurance company.
D-2-1
of the Investment Company Act of 1940 or as defined in
Section 202(a)(22) of the Investment Advisers Act of
1940; or
(3) [ ] a 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
(4) [ ] a plan (i) established and maintained by a state, its
political subdivisions, or any agency or instrumentality
of a state or its political subdivisions, the laws of
which permit the purchase of securities of this type,
for the benefit of its employees and (ii) the governing
investment guidelines of which permit the purchase of
securities of this type; or
(5) [ ] a corporation (other than a U.S. bank, savings and loan
association or equivalent foreign institution),
partnership, Massachusetts or similar statutory or
business trust, or an organization described in
Section 501(c)(3) of the Internal Revenue Code; or
(6) [ ] a U.S. bank, savings and loan association or equivalent
foreign institution, which has an audited net worth of
at least $25 million as demonstrated in its latest
annual financial statements as of a date not more than
16 months preceding the date of sale in the case of a
U.S. institution or 18 months in the case of a foreign
institution; or
(7) [ ] an investment adviser registered under the Investment
Advisers Act; or
b. [ ] greater than $10 million, and the undersigned is a broker
- dealer registered with the SEC; or
c. [ ] less than $10 million, and the undersigned is a broker
- dealer registered with the SEC and will only purchase Rule
144A securities in riskless principal transactions (as defined
in Rule 144A); or
d. [ ] less than $100 million, and the undersigned is an investment
company registered under the Investment Company Act of 1940,
which, together with one or more registered investment
companies having the same or an affiliated investment adviser,
owns at least $100 million of eligible securities; or
e. [ ] less than $100 million, and the undersigned is an entity, all
the equity owners of which are qualified institutional buyers.
The undersigned further certifies that it is purchasing Notes for its
own account or for the account of others that independently qualify as
"Qualified Institutional Buyers" as defined in Rule 144A. It is aware that the
sale of the Notes is being made in reliance on its continued compliance with
Rule 144A. It is aware that the transferor may rely on the exemption from the
provisions of Section 5 of the Act provided by Rule 144A. The undersigned
understands that the Notes may be resold, pledged or transferred pursuant to
Rule 144A only to a person reasonably
D-2-2
believed to be a Qualified Institutional Buyer that purchases for its own
account or for the account of a Qualified Institutional Buyer to whom notice is
given that the resale, pledge or transfer is being made in reliance in Rule
144A.
The undersigned agrees that if at some time before the expiration of
the holding period described in Rule 144 it wishes to dispose of or exchange any
of the Notes, it will not transfer or exchange any of the Notes to a Qualified
Institutional Buyer without first obtaining a letter in the form hereof from the
transferee and delivering such certificate to the addressees hereof.
IN WITNESS WHEREOF, this document has been executed by the undersigned
who is duly authorized to do so on behalf of the undersigned Qualified
Institutional Buyer on the _____ day of ___________, ____.
Name of Institution
Signature
Name
Title**
-------------------------------
* * Must be President, Chief Financial Officer, or other executive officer.
D-2-3
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR RULE 144A GLOBAL NOTE TO
REGULATION S GLOBAL NOTE DURING RESTRICTED PERIOD
(Pursuant to Section 4.02(j)(i) of the Indenture)
Xxxxx Fargo Bank Minnesota, National Association,
as the Indenture Trustee
Sixth and Marquette Avenue, MAC N9311 - 161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset Backed Administration
Re: CapitalSource Commercial Loan Trust Notes, Series 2002 - 2
Class [A], [B], [C] and [D]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 30, 2002 (as
amended, modified, waived, supplemented or restated from time to time, the
"Agreement"), between CapitalSource Commercial Loan Trust 2002 - 2, as the
issuer (together with its successors and assigns in such capacity, the
"Issuer"), and Xxxxx Fargo Bank Minnesota, National Association, as the
indenture trustee (together with its successors and assigns in such capacity,
the "Trustee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This letter relates to US $[_______] aggregate current principal amount of Class
__ Notes (the "Notes") which are held in the form of the Rule 144A Global Note
(CUSIP No. _________) with the Depository in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Notes for an interest in the Regulation S Global Note
(CUSIP No. __________) to be held with [Euroclear] [Clearstream] (Common Code
No.____________) through the Depository.
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected in accordance with the
transfer restrictions set forth in the Agreement and pursuant to and in
accordance with Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and accordingly the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in the United
States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States] [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],
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
E-1
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].
This certificate and the statements contained herein are made for your benefit
and the benefit of the Trustee, the Issuer and the Placement Agents of the
offering of the Notes.
[Insert Name of Transferor]
By: __________________________________
Name: ________________________________
Title: _______________________________
Dated:
E-2
EXHIBIT F
FORM OF TRANSFER CERTIFICATE FOR RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL
NOTE AFTER RESTRICTED PERIOD
(Pursuant to Section 4.02(j)(ii) of the Indenture)
Xxxxx Fargo Bank Minnesota, National Association,
as the Indenture Trustee
Sixth and Marquette Avenue, MAC N9311 - 161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset Backed Administration
Re: CapitalSource Commercial Loan Trust Notes, Series 2002 - 2
Class [A], [B], [C] and [D]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 30, 2002 (as
amended, modified, waived, supplemented or restated from time to time, the
"Agreement"), between CapitalSource Commercial Loan Trust 2002 - 2, as the
issuer (together with its successors and assigns in such capacity, the
"Issuer"), and Xxxxx Fargo Bank Minnesota, National Association, as the
indenture trustee (the "Trustee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Agreement.
This letter relates to US $[________] aggregate current principal amount of
Class __ Notes (the "Notes") which are held in the form of the Rule 144A Global
Note (CUSIP No. ________) with the Depository in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Notes for an interest in the Regulation S Global Note
(Common Code No. _____).
In connection with such request, and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected in accordance with the
transfer restrictions set forth in the Agreement and, (i) with respect to
transfers made in reliance on Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States] [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];
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
F-1
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Notes that are being
transferred are not "restricted securities" as defined in Rule 144 under the
Securities Act.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Trustee, the Issuer and the Placement Agents of the
offering of the Notes.
[Insert Name of Transferor]
By: ______________________________
Name: ____________________________
Title: ___________________________
Dated:
F-2
EXHIBIT G
FORM OF TRANSFER CERTIFICATE REGULATION S GLOBAL NOTE
TO RULE 144A GLOBAL NOTE DURING RESTRICTED PERIOD
(Pursuant to Section 4.02(j)(iii)(3)(i) of the Indenture)
Xxxxx Fargo Bank Minnesota, National Association,
as the Indenture Trustee
Sixth and Marquette Avenue, MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset Backed Administration
Re: CapitalSource Commercial Loan Trust Notes, Series 2002-2
Class [A], [B], [C] and [D]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 30, 2002 (as
amended, modified, waived, supplemented or restated from time to time, the
"Agreement"), between CapitalSource Commercial Loan Trust 2002-2, as the
issuer (together with its successors and assigns in such capacity, the
"Issuer"), and Xxxxx Fargo Bank Minnesota, National Association, as the
indenture trustee (together with its successors and assigns in such capacity,
the "Trustee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Agreement.
This letter relates to US $[________] aggregate current principal amount of
Class __ Notes (the "Notes") which are held in the form of the Regulation S
Global Note (CUSIP No. _______) with [Euroclear] [Clearstream] (Common Code
No.__________) through the Depository in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Notes for an interest in the Regulation 144A Global Note (CUSIP
No.____________).
In connection with such request, and in respect of such Notes, the Transferor
does hereby certify that such Notes are being transferred in accordance with (i)
the transfer restrictions set forth in the Agreement and (ii) Rule 144A under
the Securities Act to a transferee that the Transferor reasonably believes is
purchasing the Notes for its own 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 each case
in a transaction meeting the requirements of Rule 144A and in accordance with
any applicable securities laws of any state of the United States or any
jurisdiction.
G-1
This certificate and the statements contained herein are made for your benefit
and the benefit of the Trustee, the Issuer and the Placement Agents of the
offering of the Notes.
[Insert Name of Transferor]
By: ______________________________
Name: ____________________________
Title: ___________________________
Dated:
G-2
EXHIBIT H
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
GLOBAL NOTE DURING RESTRICTED PERIOD
(Pursuant to Section 4.02(l)(iv)(3) of the Indenture)
Xxxxx Fargo Bank Minnesota, National Association,
as the Indenture Trustee
Sixth and Marquette Avenue, MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services/Asset Backed Administration
Re: CapitalSource Commercial Loan Trust Notes, Series 2002-2
Class [A], [B], [C] and [D]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 4.02 of the Indenture, dated
as of October 30, 2002 (as amended, modified, waived, supplemented or restated
from time to time, the "Agreement"), between CapitalSource Commercial Loan Trust
2002-2, as the issuer (together with its successors and assigns in such
capacity, the "Issuer"), and Xxxxx Fargo Bank Minnesota, National Association,
as the indenture trustee (together with its successors and assigns in such
capacity, the "Trustee"), in connection with the transfer by the undersigned
(the "Transferor") to _________________ (the "Transferee") of
$__________________ current principal amount of Class ___ Notes, in fully
registered form (each, an "Individual Note"), or a beneficial interest of such
aggregate current principal amount in the Regulation S Global Note (the "Global
Note") maintained by The Depository Trust Company or its successor as Depository
under the Agreement (such transferred interest, in either form, being the
"Transferred Interest").
In connection with such transfer, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Agreement and the Notes and (i) with respect to transfers made in
accordance with Regulation S ("Regulation S") promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), the Transferor does hereby
certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the Transferee
was outside the United States] [the transaction was executed
in, on or through the facilities of a designated offshore
securities market and neither the undersigned nor any person
acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States];
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the
transaction, the Transferred Interest will be held with the
Depository through [Euroclear] [Clearstream];
H-1
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation
S, as applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that such Notes that are
being transferred are not "restricted securities" as defined in Rule 144 under
the Securities Act.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Trustee, the Issuer and the Placement Agents of the
offering of the Notes.
[Name of Transferor]
By: ______________________________
Name: ____________________________
Title: ___________________________
Dated:
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EXHIBIT I
FORM OF INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank Minnesota,
National Association
Sixth Street and Marquette Avenue, MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services-Asset-Backed Administration
Re: CapitalSource Commercial Loan Trust Notes, Series 2002-2
Class A, Class B, Class C, Class D and Class E Notes
In accordance with Section 3.29 of the Indenture, dated as of October
30, 2002 (as amended, modified, waived, supplemented or restated from time to
time, the "Agreement"), by and between CapitalSource Commercial Loan Trust
2002-2, as the issuer, and Xxxxx Fargo Bank Minnesota, National Association, as
the indenture trustee (together with its successors and assigns in such
capacity, the "Indenture Trustee"), with respect to the above-captioned Notes
(the "Notes"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of $__________ in principal
balance of the Class ___ Notes.
2. The undersigned is requesting a password pursuant to Section 3.29 of
the Agreement for access to certain information (the "Information") on the
Indenture Trustee's website.
3. In consideration of the Indenture Trustee's disclosure to the
undersigned of the Information, or the password in connection therewith, the
undersigned will keep the Information confidential (except from such outside
persons as are assisting it in connection with the related Notes, from its
accountants and attorneys, and otherwise from such governmental or banking
authorities or agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the Indenture
Trustee, be otherwise disclosed by the undersigned or by its officers,
directors, partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Indenture Trustee for any loss, liability or expense incurred thereby with
respect to any such breach by the undersigned or any of its Representatives.
5. Capitalized terms used by not defined herein shall have the
respective meanings assigned thereto in the Agreement.
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IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereby by its duly authorized officer, as of the day and year written above.
_________________________________
Beneficial Owner
By: ______________________________
Name: ____________________________
Company: _________________________
Phone: ___________________________
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