Exhibit 10.1
SELLER TRANSFER AGREEMENT
THIS AGREEMENT is made as of July 9, 2002, among Delaware Securities
Holdings, Inc., a corporation organized under the laws of the State of Delaware
(the "Sponsor"), Delaware Bonds Holdings, Inc., a corporation organized under
the laws of the State of Delaware (the "Seller"), and XXXX Equity, Inc., a
corporation organized under the laws of the State of Delaware (the "Depositor").
W I T N E S S E T H
WHEREAS, LNR CDO 2002-1 Ltd., an exempted company with limited liability
incorporated under the Companies Law (2001 Second Revision) of the Cayman
Islands (the "Issuer") and LNR CDO 2002-1 Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (the "Co-Issuer"
and, together with the Issuer, the "Co-Issuers"), intend to issue (i)
$98,077,000 Class A Floating Rate Notes (the "Class A Notes"), (ii) $80,000,000
Class B Floating Rate Notes (the "Class B Notes"), (iii) $25,000,000 Class C
6.313% Notes (the "Class C Notes"), (iv) $45,000,000 Class D-FL Floating Rate
Notes (the "Class D-FL Notes"), (v) $40,150,000 Class D-FX 6.727% Notes (the
"Class D-FX Notes"), (vi) $21,000,000 Class E-FL Floating Rate Notes (the "Class
E-FL Notes"), (vii) $22,000,000 Class E-FX 7.781% Notes (the "Class E-FX
Notes"), (viii) $33,059,000 Class E-FXD 7.502% Notes (the "Class E-FXD Notes"),
(ix) $27,041,000 Class F-FL Floating Rate Notes (the "Class F-FL Notes") and (x)
$25,000,000 Class F-FX 6.400% Notes (the "Class F-FX Notes"; and together with
the Class A Notes, the Class B Notes, the Class C Notes, the Class D-FL Notes,
the Class D-FX Notes, the Class E-FL Notes, the Class E-FX Notes, the Class
E-FXD Notes and the Class F-FL Notes, the "Senior Notes");
WHEREAS, the Issuer also intends to issue (i) $40,032,000 aggregate
principal amount of Class G 6.400% Notes (the "Class G Notes"), (ii) $54,042,000
aggregate principal amount of Class H 6.400% Notes (the "Class H Notes"; and
together with the Class G Notes and the Senior Notes, the "Notes") and (ii)
$290,228,578 aggregate notional balance of Preferred Shares (the "Preferred
Shares");
WHEREAS, the Notes will be issued pursuant to an Indenture, dated as of
July 9, 2002 (the "Indenture"), among the Co-Issuers and LaSalle Bank National
Association, as trustee (together with any successor under the Indenture, the
"Trustee");
WHEREAS, the Seller intends to purchase certain commercial mortgage-backed
securities (the "Sponsor Collateral Securities") from the Sponsor under the
Sponsor Transfer Agreement, dated as of July 9, 2002 (the "Sponsor Transfer
Agreement"), between the Seller and the Sponsor.
WHEREAS, subject to the terms and conditions hereof, the Seller intends to
sell the Sponsor Collateral Securities and certain other commercial
mortgage-backed securities (the "Seller Collateral Securities," and together
with the Sponsor Collateral Securities, the "Collateral Securities") owned by it
to the Depositor and the Depositor intends to purchase the Collateral Securities
and all payments and collections thereon after August 1, 2002 from the Seller in
exchange for the Purchase Price (as defined herein), the Class G Notes, the
Class H Notes and the Preferred Shares, as set forth
on Schedule II hereto, and in connection therewith, the Sponsor intends to make
the representations and warranties set forth herein with respect to the
Collateral Securities;
WHEREAS, the Depositor intends to sell such Collateral Securities, all
payments and collections thereon after August 1, 2002 and its rights under this
Agreement to the Issuer under the Depositor Transfer Agreement, dated as of July
9, 2002, between the Depositor and the Issuer;
WHEREAS, the Issuer intends to pledge such Collateral Securities, all
payments and collections thereon after August 1, 2002 and certain other
collateral to the Trustee under the Indenture (capitalized terms used but not
otherwise defined herein having the respective meanings set forth in the
Indenture);
NOW, THEREFORE, in consideration of the mutual agreements herein set forth,
the parties hereto agree as follows:
1. Purchase and Sale of the Collateral Securities.
(a) Subject to and upon the terms and conditions set forth in this
Agreement, the Seller hereby sells and assigns to the Depositor, without
recourse, and the Depositor hereby purchases and accepts, in each case, as of
July 9, 2002 (the "Closing Date"), all of the Seller's right, title and interest
in and to (i) each of the Collateral Securities set forth in Schedule I hereto
and all amounts received or receivable with respect thereto, whether now
existing or hereafter acquired, on and after August 1, 2002 and (ii) all of the
Seller's rights under the Sponsor Transfer Agreement (but none of the
obligations) and all the proceeds of the foregoing. Subject to the provisions
hereof and of the Indenture, the Depositor or its assignees shall be entitled to
exercise all of the rights of the Seller under the Sponsor Transfer Agreement as
if, for such purpose, it were the Seller. The transfer to the Depositor of the
Collateral Securities identified on Schedule I attached hereto shall be absolute
and is intended by the Seller to constitute and to be treated as a sale of the
Collateral Securities by the Seller to the Depositor.
(b) In connection with such sale, the Depositor shall (i) pay to the
Seller on the Closing Date, the aggregate purchase price in U.S. dollars equal
to $402,949,012.46 (the "Purchase Price") and (ii) in partial consideration for
the Collateral Securities, deliver the Class G Notes, the Class H Notes and the
Preferred Shares (the "Retained Securities"), as set forth on Schedule II hereto
to or at the direction of the Seller.
(c) The sale and assignment of the Collateral Securities shall be made
on or prior to the Closing Date at the time and in the manner agreed upon by the
parties. Upon receipt of evidence of delivery or transfer of the Collateral
Securities to the Trustee, as assignee of the Depositor, the Depositor shall pay
the Purchase Price to the Seller on the Closing Date, in the manner agreed upon
by the Seller and the Depositor, and shall deliver the Retained Securities in
accordance with the instructions of the Seller set forth on Schedule II hereto.
2. Conditions. The obligations of the parties with respect to the Collateral
Securities under this Agreement are subject to the following conditions:
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(a) the representations and warranties contained herein shall be true
and correct in all material respects as of the date hereof and as of the Closing
Date; and
(b) on the Closing Date, counsel for the Depositor shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request in order to evidence the accuracy and completeness of any of
the representations, warranties, covenants or statements of the Sponsor and the
Seller, the performance of any of the obligations of the Sponsor and the Seller
hereunder or the fulfillment of any of the conditions herein contained.
3. Representations and Warranties of the Sponsor. The Sponsor hereby
represents, warrants and covenants to the Depositor, its successors and assigns,
with respect to itself and the Seller, that:
(a) Each of the Sponsor and the Seller (i) is duly organized and
validly existing as an entity in good standing under the laws of the
jurisdiction in which it is chartered or organized and (ii) has the full power
and authority to execute, deliver, and perform its obligations under this
Agreement. The Seller has the full power and authority to sell and assign the
Collateral Securities to the Depositor.
(b) This Agreement has been duly authorized by all necessary corporate
action, has been duly executed and delivered by one or more duly authorized
officers and is the valid and binding agreement of the Sponsor and the Seller
enforceable against the Sponsor and the Seller in accordance with its terms
subject, as to enforcement, (a) to the effect of bankruptcy, insolvency or
similar laws affecting generally the enforcement of creditors' rights as such
laws would apply in the event of any bankruptcy, receivership, insolvency or
similar event applicable to the Sponsor or the Seller and (b) to general
equitable principles (whether enforceability of such principles is considered in
a proceeding at law or in equity).
(c) (i) The Seller has either (x) not pledged, encumbered, assigned,
transferred, conveyed, disposed of or terminated, in whole or in part, any of
its right, title and interest in and to the Collateral Securities, or (y) caused
the release of any pledge or encumbrance of its right, title and interest in any
of the Collateral Securities and, in either case, on the Closing Date, the
Seller is the sole owner of the Collateral Securities that are identified in
Schedule I, and has good and marketable title thereto, free and clear of any
pledges, liens, security interests, claims, charges, or other encumbrances, and
has the full right and authority to sell the Collateral Securities to the
Depositor, and upon the delivery or transfer of such Collateral Securities to
the Depositor as contemplated herein, the Depositor will receive good and
marketable title to such Collateral Securities, free and clear of any pledges,
liens, security interests, claims, charges, or other encumbrances, (ii) none of
the execution, delivery or performance by the Seller or the Sponsor of this
Agreement shall (a) conflict with, result in any breach of or constitute a
default (or an event which, with the giving of notice or passage of time, or
both, would constitute a default) under, any term or provision of the
organizational documents of the Seller or the Sponsor, as applicable, or any
material indenture, agreement or other material instrument to which the Seller
or the Sponsor, as applicable, is a party or by which the Seller or the Sponsor,
as applicable, is bound or (b) violate any provision of any law, rule,
regulation, order, decree or determination applicable to the Seller or the
Sponsor of any regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or the Sponsor or their
respective properties, (iii) no registration with, consent or approval of, or
other action by, any federal, state or other governmental agency, authority,
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administrative or regulatory body, arbitrator, court or other tribunal, foreign
or domestic, other than those registrations, consents, approvals or actions
obtained or completed prior to the Closing Date, is required in connection with
the execution, delivery and performance of this Agreement by the Seller or the
Sponsor and the consummation by the Seller of the sale of the Collateral
Securities and (iv) no proceedings are pending or, to the Sponsor's knowledge,
threatened against the Sponsor or, to the Seller's knowledge, threatened against
the Seller, before any federal, state or other governmental agency, authority,
administrative or regulatory body, arbitrator, court or other tribunal, foreign
or domestic, which, singly or in the aggregate, could materially and adversely
affect any action taken or to be taken by the Seller or the Sponsor, as
applicable, under this Agreement.
(d) The Seller has accounted for each sale of each Collateral
Security hereunder, in its books and financial statements, as sales, consistent
with United States generally accepted accounting principles.
(e) The Seller and the Sponsor are currently solvent and able to pay
their debts as they become due.
(f) Schedule I attached hereto and the schedule of Collateral
Securities attached to the Indenture is true and accurate in all material
respects.
4. Representations and Warranties of the Depositor. The Depositor hereby
represents, warrants and covenants to the Seller and the Sponsor, their
successors and assigns, that
(a) (i) It is duly organized and validly existing as an entity in
good standing under the laws of the jurisdiction in which it is chartered or
organized and (ii) it has the requisite corporate power and authority to enter
into and perform this Agreement.
(b) This Agreement has been duly authorized by all necessary
corporate action, has been duly executed and delivered by one or more duly
authorized officers and is the valid and binding agreement of the Depositor
enforceable against the Depositor in accordance with its terms subject, as to
enforcement, (a) to the effect of bankruptcy, insolvency or similar laws
affecting generally the enforcement of creditors' rights as such laws would
apply in the event of any bankruptcy, receivership, insolvency or similar event
applicable to the Depositor and (b) to general equitable principles (whether
enforceability of such principles is considered in a proceeding at law or in
equity).
5. Obligation Upon Breach of Representation and Warranty. Upon the discovery
by the Sponsor, the Seller, the Issuer, the Depositor or the Trustee of a breach
of any of the representations and warranties in Section 3 hereof that materially
and adversely affects the interests of the holders of the Notes in the
Collateral Securities or the value of the Collateral Securities, the person
discovering such breach shall give prompt written notice to the Issuer, the
Depositor, the Trustee, the Sponsor and the Seller, as applicable. Within 90
days of its discovery or its receipt of such notice of any such breach of the
representations and warranties in Section 3 above, the Sponsor shall cause such
breach to be cured in all material respects or, if the Sponsor is unable to cure
such breach, the Sponsor shall, (y) substitute a Replacement Collateral Security
for the Collateral Security as to which the misrepresentation exists (the
"Defective Collateral Security"), in accordance with the procedures set forth in
Section 12.3 of the Indenture, and the Trustee shall deliver to the Sponsor
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the Defective Collateral Security or (z) if the Sponsor is unable to cure such
breach and has not delivered a Replacement Collateral Security as provided in
clause (y), repurchase the Defective Collateral Security at a purchase price
equal to the principal amount thereof plus, without duplication, accrued
interest thereon. A "Replacement Collateral Security" is a Collateral Security
that either (i) satisfies the Replacement Criteria or (ii) as to which the
Rating Condition is met. The "Replacement Criteria" with respect to a proposed
Replacement Collateral Security will be satisfied if it (a) is rated by S&P and
Moody's at least as high as the Defective Collateral Security it is replacing
or, if such Replacement Collateral Security is not then rated by S&P, is rated
by Moody's or Fitch at least one rating subcategory higher than the Defective
Collateral Security it is replacing, (b) has an average life not more than 0.25
years shorter or longer than the average life of the Defective Collateral
Security it is replacing, (c) has an outstanding principal amount at least equal
to the Defective Collateral Security it is replacing, (d) has a stated interest
rate of at least 6.44% per annum and (e) after giving effect to the
substitution, does not result in and of itself in the Issuer owning a principal
amount of any Underlying CMBS Series greater than the principal amount of such
Underlying CMBS Series owned by the Issuer prior to such substitution. If the
Sponsor elects to substitute a Collateral Security for a Defective Collateral
Security under clause (y) above and it has within such 90 day period commenced
and is diligently pursuing the Rating Agency review referred to under the
definition of "Replacement Collateral Security" but such review is not completed
within 90 days of the discovery or receipt of notice of breach, the Sponsor
shall have an additional 90 days to complete such process. If after such
additional period the Rating Agencies have not completed their review or the
proposed substitute Collateral Security is determined by the Rating Agencies to
be unacceptable, the Sponsor shall repurchase the related Defective Collateral
Security pursuant to clause (z) above or deliver a Replacement Collateral
Security within such period. The Sponsor shall reimburse the Depositor, the
Issuer and the Trustee for all necessary and reasonable costs and expenses,
including the costs and expenses of enforcement with respect to such Defective
Collateral Security, and any applicable transfer taxes incurred in connection
with such substitution or repurchase.
6. Non-Recourse.
(a) Notwithstanding anything to the contrary contained herein, no recourse
shall be had, whether by levy or execution or otherwise, for the payment of the
principal of or interest or premium (if any) on the Collateral Securities, or
for any claim based on payments due thereon, against the Sponsor, the Seller or
any of their respective stockholders, directors, officers, agents or employees
or successors and assigns of any of the foregoing, under any rule of law,
statute or constitution, or by the enforcement of any assessment or penalty, or
otherwise, nor shall any of such persons be personally liable for any such
amounts or claims, or liable for any defenses or any judgment based thereon or
with respect thereto; provided, that the foregoing shall not (i) constitute a
waiver of any rights of the Depositor or its assignees against the Sponsor or
the Seller for breach of any representations, warranties or covenants contained
herein, or (ii) be taken to prevent recourse by the Depositor to, and the
enforcement of its rights against, the Collateral Securities or any obligor
thereunder.
(b) No recourse under any obligation, covenant or agreement of the
Depositor contained in this Agreement shall be had against any incorporator,
stockholder, officer, director or employee of the Depositor or successors and
assigns of any of the foregoing, by the enforcement of any assessment or by any
legal or equitable proceeding, by virtue of any statute or otherwise; it being
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expressly agreed and understood that this Agreement is solely a corporate
obligation of the Depositor, and that no personal liability whatever shall
attach to or be incurred by the incorporators, stockholders, officers, directors
or employees of the Depositor, or any of them under or by reason of any of the
obligations, covenants or agreements of the Depositor contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by the Depositor of any such obligations, covenants or agreements
either at common law or at equity, or by statute or constitution, of every such
incorporator, stockholder, officer, director or employee is hereby expressly
waived as a condition of and in consideration for the execution of this
Agreement, provided however, that nothing in this Section 6(b) shall relieve any
of the foregoing persons or entities from any liability arising from his, her or
its willful misconduct or intentional misrepresentation.
(c) None of the following Persons shall be personally liable for any
amounts payable, or performance due, under this Agreement: (i) any agent,
partner, beneficiary, shareholder, member, officer, director or employee of the
Issuer or of any Affiliate of the Issuer, (ii) any agent, partner, beneficiary,
shareholder, member, policyholder, officer, director, employee of any Person
described in the preceding clause (i) or (iii) any successor or assign of any
Person described in either of the preceding clauses (i) and (ii).
(d) Notwithstanding any other provision of this Agreement, neither the
Sponsor nor the Seller, may, prior to the date which is one year and one day
(or, if longer, the then applicable preference period) after the payment in full
of all Notes, institute against, or join any other Person in instituting
against, the Issuer or the Co-Issuer any bankruptcy, reorganization,
arrangement, insolvency, moratorium or liquidation proceedings, or other
proceedings under federal, state, Cayman Island or other bankruptcy or similar
laws. Nothing in this Section shall preclude, or be deemed to stop, the Sponsor
or the Seller (i) from taking any action prior to the expiration of the
aforementioned preference period in (A) any case or proceeding voluntarily filed
or commenced by the Issuer or the Co-Issuer or (B) any involuntary insolvency
proceeding filed or commenced by a Person other than the Seller or the Sponsor,
as applicable or (ii) from commencing against the Issuer or the Co-Issuer any
legal action which is not a bankruptcy, reorganization, arrangement, insolvency,
moratorium or liquidation proceeding.
7. Nonconsolidation.
(a) The Seller shall maintain corporate records and books of account
separate from those of the Depositor and the Issuer.
(b) The resolutions, agreements and other instruments underlying the
transactions described in this Agreement shall be continuously maintained by the
Seller as official records.
(c) The Seller shall maintain an arm's-length relationship with the
Depositor and the Issuer and shall not hold itself out as being liable for any
indebtedness of the Depositor or the Issuer.
(d) The Seller shall keep its assets and its liabilities wholly separate
from those of the Depositor and the Issuer.
(e) The Seller shall not mislead third parties by conducting or appearing
to conduct business on behalf of the Depositor or the Issuer or expressly or
impliedly representing or suggesting
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that the Seller is liable or responsible for any indebtedness of the Depositor
or the Issuer or that the assets of the Seller are available to pay the
creditors of the Depositor or the Issuer.
(f) The Seller shall at all times have stationery and other business forms
separate from those of the Depositor and the Issuer.
8. Change of Name, Etc. The Seller shall not change its name, identity or
structure (including a merger) or the location of its state of organization or
any other change which could render any UCC financing statement filed in
connection with this Agreement, the Depositor Transfer Agreement, the Indenture
or any other transaction document to become "seriously misleading" under the
UCC, unless at least twenty (20) days prior to the effective date of any such
change the Seller delivers to the Depositor, the Trustee and the Issuer such
documents, instruments or agreements, executed by the Seller as are necessary to
reflect such change and to continue the perfection of the Depositor's, the
Issuer's and the Trustee's ownership interests or security interests in the
Collateral.
9. Amendments. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except upon the execution and delivery of a
written agreement by the parties hereto.
10. Communications. Except as may be otherwise agreed between the parties, all
communications hereunder shall be made in writing to the relevant party, by
personal delivery or by courier or first-class registered mail, or the closest
local equivalent thereto, or by facsimile transmission confirmed by personal
delivery or by courier or first-class registered mail as follows:
To the Seller: Delaware Bonds Holdings, Inc.
000 XX 000 Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
To the Sponsor: Delaware Securities Holdings, Inc.
000 XX 000 Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
To the Depositor: XXXX Equity, Inc.
000 XX 000 Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
or to such other address, telephone number or facsimile number as either party
may notify to the other in accordance with the terms hereof from time to time.
Any communications hereunder shall be effective upon receipt.
11. Governing Law and Consent to Jurisdiction.
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(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflicts of law
provisions thereof.
(b) The parties hereto hereby irrevocably submit to the jurisdiction of
the United States District Court for the Southern District of New York and any
court in the State of New York located in the City and County of New York, and
any Appellate Court from any thereof, in any action, suit or proceeding brought
against it or in connection with this Agreement or the transaction contemplated
hereunder or for recognition or enforcement of any judgment in any such action,
suit or proceeding, and the parties hereto hereby irrevocably and
unconditionally agree that all claims in respect of any such action or
proceeding may be heard or determined in such New York State court or, to the
extent permitted by law, in such federal court. The parties hereto agree that a
final judgment in any such action, suit or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. To the extent permitted by applicable law, the parties
hereto hereby waive and agree not to assert by way of motion, as a defense or
otherwise in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of such courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that the subject matter thereof may not be
litigated in or by such courts.
(c) To the extent permitted by applicable law, the parties hereto shall
not seek and hereby waive the right to any review of the judgment of any such
court by any court of any other nation or jurisdiction which may be called upon
to grant an enforcement of such judgment.
12. Costs. The Sponsor shall pay all expenses that are incidental to the
performance of the obligations of the Seller and the Sponsor under this
Agreement.
13. Characterization. (a) It is the express intent of the parties hereto that
the conveyance of the Collateral Securities by the Seller to the Depositor
contemplated by this Agreement be, and be treated for all purposes as, a sale by
the Seller of the related Collateral Securities. It is, further, not the
intention of the parties that such conveyance be deemed a pledge by the Seller
of the rights, titles and interests in and to such Collateral Securities
conveyed to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, such rights, titles and
interests in and to the Collateral Securities intended to be conveyed by the
Seller are held to continue to be property of the Seller, then (a) this
Agreement shall also be deemed to be a security agreement under applicable law;
(b) the conveyance of such Collateral Securities provided for herein shall be
deemed to be a grant by the Seller to the Depositor of a first priority security
interest in the rights, titles and interests in and to such Collateral
Securities intended to be conveyed by the Seller, all amounts payable to the
holders of such Collateral Securities in accordance with the terms thereof and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property; (c) the possession by the
Trustee of the Collateral Securities and such other items of property as
constitute instruments, money, negotiable documents, chattel paper or investment
property shall be deemed to be "possession" by the secured party and "control"
for purposes of perfecting the security interest pursuant to the Uniform
Commercial Code as in effect in any applicable jurisdiction (including but not
limited to Sections 9-313 and 9-106 thereof); and (d) notifications to Persons
holding such property, and acknowledgments, receipts or confirmations from
Persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts
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or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Depositor or any successor thereto for the purpose of
perfecting such security interest under applicable law. Any assignment of the
rights, titles and interests of the Depositor in and to the Collateral
Securities pursuant to any provision of the Indenture shall also be deemed to be
an assignment of any related security interests created hereby.
(b) On or prior to the Closing Date, the Seller shall xxxx its records
to reflect that the Collateral Securities have been sold in accordance with this
Agreement. In addition, the Seller and the Sponsor agree that from time to time,
at the Sponsor's expense, it shall promptly execute and deliver all further
instruments and documents, and take all further action, that the Depositor, the
Issuer or the Trustee may reasonably request in order to perfect, protect or
more fully evidence the purchases hereunder, or to enable the Depositor, the
Issuer or the Trustee to exercise or enforce any of their respective rights with
respect to the Collateral Securities.
(c) The Seller hereby authorizes the Depositor or its assignee or
designee to file one or more financing or continuation statements, and
amendments thereto and assignments thereof, relative to all or any of the
Collateral Securities now existing or hereafter arising in the name of the
Seller as debtor and, to the extent permitted by the Deposit Transfer Agreement
and the Indenture, to notify the issuers of the Collateral Securities of the
sale of the Collateral Securities.
14. Survival. Each of the Sponsor, the Seller and the Depositor agrees that the
representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed to
have been relied upon by the Sponsor, the Seller and the Depositor,
respectively, notwithstanding any investigation heretofore or hereafter made by
the other party or on the other party's behalf, and that the representations,
warranties and agreements made by the Sponsor and the Seller herein or in any
such certificate or other instrument shall survive the delivery of and payment
for the Collateral Securities.
15. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
16. Notice and Acknowledgment of Assignment. The Sponsor and the Seller hereby
consent to, and hereby confirm and agree that the Depositor may assign its
rights, title and interest in (but not its obligations under) this Agreement to
the Issuer pursuant to the Depositor Transfer Agreement; and the Sponsor and the
Seller by their signatures below agree to, and acknowledge, that such assignment
has been made. The parties hereto acknowledge that the Issuer and the Trustee
are express third party beneficiaries hereof entitled to enforce the provisions
hereof as if they were actually parties hereto, including, without limitation,
the provisions of Section 5 hereof. The Depositor hereby gives notice to the
Seller and the Sponsor that the Depositor has sold, pursuant to the Depositor
Transfer Agreement, to the Issuer all of the Depositor's right, title and
interest in and to the Collateral Securities and this Agreement, and that the
Issuer has pledged, pursuant to the Indenture, to the Trustee all of the
Issuer's right, title and interest in and to the Collateral Securities and this
Agreement. The Sponsor and the Seller hereby acknowledge that upon receipt of
this notice, (i) the Seller has directed that all payments under or arising from
the Collateral Securities on and after August 1, 2002, should be made to the
Collection Account or, if otherwise specified by written notice from the Trustee
from time to time, to the Trustee or to its order, (ii) all remedies provided
for in this Agreement or available at law or in equity are exercisable by the
Trustee, (iii)
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all rights to compel performance by the Sponsor or the Seller are exercisable by
the Trustee and (iv) all rights, interests and benefits whatsoever accruing to
or for the benefit of the Depositor arising from the this Agreement belong to
the Trustee. By its execution of this Agreement, the Sponsor and the Seller
hereby acknowledge receipt of this notice and confirm that it has not received
notice of any previous assignments or charges of or over any of the rights,
interests and benefits referred to in the foregoing notice. The Sponsor and the
Seller further confirm that no amendment, waiver, release or termination of any
such rights, interests and benefits shall be effective without the prior written
consent of the Trustee.
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IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first written above.
DELAWARE SECURITIES HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
DELAWARE BONDS HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXX EQUITY, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
-11-
Schedule I
Collateral Security Schedule
Certain CMBS Characteristics
------------------------------------------------------------------------------------------------------------------------------------
Rating/(1)/
-------------- Aggregate Initial % of
Additional Class Balance CMBS
Rating of entire CMBS Contributed Collateral
# Issue Class Moody's S&P Fitch Agencies/(2)/ Class/(1)/ Face Value Securities/(1)/ Subordination %/(1)/ Coupon/(1)/
------------------------------------------------------------------------------------------------------------------------------------
1 BACM 2000-2 J BB+ $ 34,479,629 $ 6,579,133 0.8% 5.72% 7.00%
0 XXXX 0000-0 X Xx0 XX 5,561,230 4,065,341 0.5% 5.09% 7.00%
3 BACM 2000-2 L Ba3 BB- 6,673,476 4,878,410 0.6% 4.33% 7.00%
4 BACM 2000-2 M B1 B+ 2,224,492 1,626,137 0.2% 4.07% 7.00%
0 XXXX 0000-0 X X0 X 6,673,477 4,878,410 0.6% 3.31% 7.00%
6 BACM 2000-2 O B3 B- 4,448,984 3,252,273 0.4% 2.80% 7.00%
7 BACM 2000-2 P NR NR 24,469,414 10,485,557 1.3% 0.00% 7.00%
8 BACM 2001-1 K Ba2 BB 23,480,584 8,012,049 1.0% 4.67% 6.13%
9 BACM 2001-1 L Ba3 BB- 2,134,598 1,710,250 0.2% 4.44% 6.13%
10 BACM 2001-1 M B1 B+ 5,538,842 4,437,748 0.6% 3.85% 6.13%
00 XXXX 0000-0 X X0 X 6,788,329 5,438,843 0.7% 3.13% 6.13%
12 BACM 2001-1 O B3 B- 5,883,218 4,713,663 0.6% 2.50% 6.13%
13 BACM 2001-1 P NR NR 23,532,872 11,052,495 1.4% 0.00% 6.13%
00 XXXX 0000-XX0 X Xx0 XX 19,675,751 10,791,801 1.3% 5.25% 6.29%
15 BACM 2002-PB2 M Ba3 BB- 8,432,465 4,625,058 0.6% 4.50% 6.29%
16 BACM 2002-PB2 N B+ 13,276,452 7,281,899 0.9% 3.32% 6.29%
17 BACM 2002-PB2 O B 7,234,924 3,968,228 0.5% 2.68% 6.29%
18 BACM 2002-PB2 P B- 4,823,283 2,645,485 0.3% 2.25% 6.29%
19 BACM 2002-PB2 Q NR NR 25,260,130 8,121,570 1.0% 0.00% 6.29%
20 CCMSC 2000-3 H XX Xxxxx 5,756,505 5,756,505 0.7% 5.07% 6.89%
21 CCMSC 2000-3 I BB- Fitch 5,756,506 5,756,506 0.7% 4.31% 6.89%
22 CCMSC 2000-3 J B+ Fitch 9,594,175 9,594,175 1.2% 3.04% 6.89%
23 CCMSC 2000-3 K B Fitch 3,837,671 3,837,671 0.5% 2.53% 6.89%
24 CCMSC 2000-3 L B- Fitch 3,837,670 3,837,670 0.5% 2.03% 6.89%
25 CCMSC 2000-3 M NR 15,350,681 8,801,524 1.1% 0.00% 6.89%
00 XXXX 0000-X0 X Xx0 X&X, Xxxxx 15,503,000 3,341,706 0.4% 9.51% 6.00%
00 XXXX 0000-X0 X Xx0 X&X, Xxxxx 15,503,000 3,341,706 0.4% 7.45% 6.00%
00 XXXX 0000-X0 X Xx0 X&X, Xxxxx 7,751,000 1,670,494 0.2% 6.42% 6.00%
00 XXXX 0000-X0 X Xx0 X&X, Xxxxx 11,627,000 8,353,906 1.0% 4.88% 6.00%
Certain CMBS Characteristics
------------------------------------------------------------------------------------------------------------------------------------
Rating/(1)/
-------------- Aggregate Initial % of
Additional Class Balance CMBS
Rating of entire CMBS Contributed Collateral
# Issue Class Moody's S&P Fitch Agencies/(2)/ Class/(1)/ Face Value Securities/(1)/ Subordination %(1)/ Coupon/(1)/
-----------------------------------------------------------------------------------------------------------------------------------
30 CMAT 1999-C2 L B1 S&P, Fitch 7,751,000 5,569,031 0.7% 3.85% 6.00%
31 CMAT 1999-C2 M B2 S&P, Fitch 7,751,000 5,569,031 0.7% 2.83% 6.00%
00 XXXX 0000-X0 X X0 X&X, Xxxxx 5,813,000 4,176,594 0.5% 2.06% 6.00%
00 XXXX 0000-X0 X0 XX 15,510,294 6,532,565 0.8% 0.00% 6.00%
00 XXXX 0000-X0 X Xx0 XX 105,600,000 21,120,000 2.6% 6.76% 6.75%
35 CSFB 1998-C2 G Ba3 BB- 19,200,000 13,459,200 1.7% 5.71% 6.75%
00 XXXX 0000-X0 X XX XX 12,500,000 3,047,759 0.4% 4.96% 7.33%
37 CSFB 2000-C1 J BB- BB- 9,800,000 7,240,735 0.9% 4.07% 7.33%
38 CSFB 2000-C1 K B+ B+ 11,100,000 8,201,241 1.0% 3.05% 7.33%
39 CSFB 2000-C1 L B B 9,700,000 7,166,850 0.9% 2.17% 7.33%
40 CSFB 2000-C1 M B- 8,400,000 6,206,345 0.8% 1.40% 7.33%
00 XXXX 0000-X0 X XX XX 15,299,815 6,626,506 0.8% 0.00% 7.33%
42 CSFB 2001-CP4 J BB BB 19,149,000 6,848,924 0.9% 4.53% 6.00%
43 CSFB 2001-CP4 K BB- BB- 10,311,000 7,061,925 0.9% 3.65% 6.00%
44 CSFB 2001-CP4 L B+ B+ 8,838,000 6,053,079 0.8% 2.89% 6.00%
45 CSFB 2001-CP4 M B B 7,365,000 5,044,232 0.6% 2.26% 6.00%
46 CSFB 2001-CP4 N B- B- 5,892,000 4,035,386 0.5% 1.76% 6.00%
47 CSFB 2001-CP4 O NR NR 20,621,722 8,279,213 1.0% 0.00% 6.00%
00 XXXX 0000-XXX0 X Xx0 XX 16,134,000 9,375,225 1.2% 5.14% 6.29%
49 CSFB 2002-CKP1 M Ba3 8,688,000 5,770,071 0.7% 4.26% 6.29%
50 CSFB 2002-CKP1 N B1 B+ 7,447,000 4,945,775 0.6% 3.51% 6.29%
00 XXXX 0000-XXX0 X X0 X 8,687,000 5,768,411 0.7% 2.63% 6.29%
52 CSFB 2002-CKP1 P B3 B- 4,965,000 3,297,184 0.4% 2.13% 6.29%
53 CSFB 2002-CKP1 Q Caa2 CCC 4,964,000 1,932,305 0.2% 1.63% 6.29%
00 XXXX 0000-XXX0 X XX XX 16,134,599 6,280,598 0.8% 0.00% 6.29%
00 XXXXX 0000-X0 X Xx0 XX 52,445,000 9,177,875 1.1% 6.84% 5.35%
00 XXXXX 0000-X0 X X0 X 37,877,000 26,513,900 3.3% 3.42% 5.35%
57 FUNBC 2001-C2 K Ba1 BB+ 15,023,000 3,747,346 0.5% 6.31% 6.46%
58 FUNBC 2001-C2 L Ba2 BB 20,031,000 7,517,926 0.9% 4.29% 6.46%
Certain CMBS Characteristics
------------------------------------------------------------------------------------------------------------------------------------
Rating/(1)/
------------------ Aggregate Initial % of
Additional Class Balance CMBS
Rating of entire CMBS Contributed Collateral
# Issue Class Moody's S&P Fitch Agencies/(2)/ Class/(1)/ Face Value Securities/(1)/ Subordination %/(1)/ Coupon/(1)/
------------------------------------------------------------------------------------------------------------------------------------
59 FUNBC 2001-C2 M Ba3 BB- 5,008,000 3,753,342 0.5% 3.78% 6.46%
60 FUNBC 2001-C2 N B1 B+ 6,048,000 4,532,790 0.6% 3.17% 6.46%
61 FUNBC 2001-C2 O B2 B 5,908,000 4,427,864 0.6% 2.58% 6.46%
62 FUNBC 2001-C2 P B3 B- 3,939,000 2,952,159 0.4% 2.18% 6.46%
63 FUNBC 2001-C2 Q NR NR 21,663,038 9,517,326 1.2% 0.00% 6.46%
64 FUNBC 2001-C3 K BB BB 14,330,000 4,497,594 0.6% 5.29% 6.16%
65 FUNBC 2001-C3 L BB BB- 6,141,000 5,523,945 0.7% 4.53% 6.16%
66 FUNBC 2001-C3 M BB- B+ 4,094,000 3,682,630 0.5% 4.03% 6.16%
67 FUNBC 2001-C3 N B+ B 6,142,000 5,524,845 0.7% 3.27% 6.16%
68 FUNBC 2001-C3 O B- B- 4,094,000 3,682,630 0.5% 2.77% 6.16%
69 FUNBC 2001-C3 P NR NR 22,518,217 11,873,700 1.5% 0.00% 6.16%
70 FUNBC 2001-C4 N B1 B+ 7,029,000 5,623,200 0.7% 3.80% 6.00%
71 FUNBC 2001-C4 O B2 B 6,938,000 5,550,400 0.7% 3.09% 6.00%
72 FUNBC 2001-C4 P B3 B- 4,626,000 3,700,800 0.5% 2.61% 6.00%
73 FUNBC 2001-C4 Q NR NR 25,443,069 11,931,671 1.5% 0.00% 6.00%
74 GECMC 2001-3 J BB- BB- 7,229,000 6,166,857 0.8% 4.52% 6.00%
75 GECMC 2001-3 K B+ B+ 12,048,000 10,277,811 1.3% 3.27% 6.00%
76 GECMC 2001-3 L B B 4,819,000 4,110,954 0.5% 2.76% 6.00%
77 GECMC 2001-3 M B- B- 4,819,000 4,110,954 0.5% 2.26% 6.00%
78 GECMC 2001-3 N NR NR 21,687,068 10,844,969 1.4% 0.00% 6.00%
79 JPMCC 2002-CIBC4 G Ba1 BB+ 13,981,000 7,306,285 0.9% 6.25% 6.16%
80 JPMCC 2002-CIBC4 H Ba2 BB 11,984,000 8,755,851 1.1% 4.75% 6.16%
81 JPMCC 2002-CIBC4 J Ba3 BB- 3,994,000 2,918,130 0.4% 4.25% 6.16%
82 JPMCC 2002-CIBC4 K B1 B+ 5,992,000 4,377,926 0.5% 3.50% 6.16%
83 JPMCC 2002-CIBC4 L B2 B 7,989,000 5,836,991 0.7% 2.50% 6.16%
84 JPMCC 2002-CIBC4 M B3 B- 3,995,000 2,918,861 0.4% 2.00% 6.16%
85 JPMCC 2002-CIBC4 NR NR NR 15,978,296 6,479,304 0.8% 0.00% 6.16%
00 XXX 0000-X0 X Xx0 XX 4,081,000 3,452,400 0.4% 5.86% 7.00%
87 KEY 2000-C1 K Ba3 BB- 6,122,000 5,179,023 0.6% 5.09% 7.00%
Certain CMBS Characteristics
------------------------------------------------------------------------------------------------------------------------------------
Rating/(1)/
------------------ Aggregate Initial % of
Additional Class Balance CMBS
Rating of entire CMBS Contributed Collateral
# Issue Class Moody's S&P Fitch Agencies/(2)/ Class/(1)/ Face Value Securities/(1)/ Subordination %/(1)/ Coupon/(1)/
------------------------------------------------------------------------------------------------------------------------------------
88 KEY 2000-C1 L B+ 12,252,000 10,364,814 1.3% 3.56% 7.00%
89 KEY 2000-C1 M B2 10,204,000 8,632,269 1.1% 2.29% 7.00%
90 KEY 2000-C1 N B3 6,122,000 5,179,023 0.6% 1.53% 7.00%
91 KEY 2000-C1 O NR NR 12,245,929 6,072,787 0.8% 0.00% 7.00%
92 LBUBS 2000-C3 J Ba2 BB 16,322,000 3,855,562 0.5% 3.81% 7.59%
93 LBUBS 2000-C3 K Ba3 BB- 9,792,000 4,367,615 0.5% 3.05% 7.59%
94 LBUBS 2000-C3 L B1 10,446,000 9,318,649 1.2% 2.23% 7.59%
95 LBUBS 2000-C3 M B2 11,751,000 10,482,811 1.3% 1.32% 7.59%
96 LBUBS 2000-C3 N B3 3,917,000 3,494,270 0.4% 1.02% 7.59%
97 LBUBS 2000-C3 P NR 13,057,485 6,828,169 0.9% 0.00% 7.59%
98 LBUBS 2000-C5 H Ba1 BB+ 19,944,000 4,326,476 0.5% 5.14% 6.22%
99 LBUBS 2000-C5 J Ba2 BB 9,972,000 4,326,476 0.5% 4.11% 6.22%
100 LBUBS 2000-C5 K Ba3 BB- 4,985,000 4,313,497 0.5% 3.60% 6.22%
101 LBUBS 2000-C5 L B1 B+ 7,479,000 6,471,543 0.8% 2.83% 6.22%
000 XXXXX 0000-X0 X X0 X 4,986,000 4,314,362 0.5% 2.31% 6.22%
103 LBUBS 2000-C5 N B3 B- 4,986,000 4,314,362 0.5% 1.80% 6.22%
104 LBUBS 2000-C5 P CCC 2,493,000 1,264,528 0.2% 1.54% 6.22%
000 XXXXX 0000-X0 X XX XX 14,958,255 7,587,296 0.9% 0.00% 6.22%
106 LBUBS 2001-C3 H BB+ Fitch 15,534,000 5,886,969 0.7% 5.03% 6.16%
107 LBUBS 2001-C3 J XX Xxxxx 20,711,000 8,830,453 1.1% 3.52% 6.16%
108 LBUBS 2001-C3 K BB- Fitch 6,904,000 4,064,363 0.5% 3.02% 6.16%
109 LBUBS 2001-C3 L B+ Fitch 10,355,000 6,095,956 0.8% 2.27% 6.16%
110 LBUBS 2001-C3 M B Fitch 3,452,000 2,032,182 0.3% 2.01% 6.16%
111 LBUBS 2001-C3 N B- Fitch 6,904,000 4,064,363 0.5% 1.51% 6.16%
112 LBUBS 2001-C3 P CCC Fitch 3,452,000 1,191,254 0.1% 1.26% 6.16%
000 XXXXX 0000-X0 X XX 17,259,716 5,956,171 0.7% 0.00% 6.16%
114 LBUBS 2002-C1 L Ba2 BB 13,982,000 10,499,881 1.3% 3.51% 6.43%
115 LBUBS 2002-C1 M Ba3 BB- 6,214,000 4,666,447 0.6% 3.00% 6.43%
116 LBUBS 2002-C1 N B1 B+ 6,215,000 4,667,198 0.6% 2.50% 6.43%
Certain CMBS Characteristics
------------------------------------------------------------------------------------------------------------------------------------
Rating/(1)/
------------------ Aggregate Initial % of
Additional Class Balance CMBS
Rating of entire CMBS Contributed Collateral
# Issue Class Moody's S&P Fitch Agencies/(2)/ Class/(1)/ Face Value Securities/(1)/ Subordination %/(1)/ Coupon/(1)/
------------------------------------------------------------------------------------------------------------------------------------
117 LBUBS 2002-C1 P B2 B 6,214,000 4,666,447 0.6% 2.00% 6.43%
118 LBUBS 2002-C1 Q B3 B- 4,661,000 3,500,211 0.4% 1.63% 6.43%
119 LBUBS 2002-C1 S Caa2 CCC 3,107,000 1,367,723 0.2% 1.38% 6.43%
120 LBUBS 2002-C1 T NR NR 17,089,924 7,523,103 0.9% 0.00% 6.43%
121 SBM7 2000-C3 J Ba2 BB 6,860,000 3,430,000 0.4% 4.57% 7.00%
122 SBM7 2000-C3 K Ba3 BB- 5,716,000 2,858,000 0.4% 3.93% 7.00%
123 SBM7 2000-C3 L B1 B+ 10,290,000 10,290,000 1.3% 2.79% 7.00%
124 SBM7 2000-C3 M B2 B 4,574,000 4,574,000 0.6% 2.28% 7.00%
125 SBM7 2000-C3 N B3 B- 3,430,000 3,430,000 0.4% 1.90% 7.00%
126 SBM7 2000-C3 P NR NR 17,150,060 10,053,273 1.3% 0.00% 7.00%
127 WBCMT 2002-1 H Ba1 BB+ 15,438,000 2,398,210 0.3% 7.38% 6.29%
128 WBCMT 2002-1 J Ba2 BB 17,814,000 8,301,316 1.0% 5.50% 6.29%
129 WBCMT 2002-1 K Ba3 BB- 4,750,000 2,951,786 0.4% 5.00% 6.29%
130 WBCMT 2002-1 L B+ 9,980,000 6,201,174 0.8% 3.95% 6.29%
131 WBCMT 2002-1 M B2 B 7,036,000 4,371,452 0.5% 3.21% 6.29%
132 WBCMT 2002-1 N B3 B- 4,690,000 2,914,508 0.4% 2.72% 6.29%
133 WBCMT 2002-1 O NR NR 25,796,449 9,395,972 1.2% 0.00% 6.29%
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Total/Weighted Average $800,629,578 100.0% 2.94% 6.44%
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1) As of May 2002, after giving effect to all distributions made in May
2002.
2) Indicated rating agencies reviewed underlying mortgage collateral and
rated certain classes other than the contributed class.
Schedule II
Registration and Delivery Instructions for the Retained Securities
Security Certificate No. Denomination Register in the Name of and Deliver to:
-------- --------------- ------------- ----------------------------------------
Class G G-144A-1 $ 20,016,000 LaSalle Bank National Association, as
Notes custodian for Delaware Bonds Holdings,
Inc.
Class H H-144A-1 $ 27,021,000 LaSalle Bank National Association, as
Notes custodian for Delaware Bonds Holdings,
Inc.
Preferred "P" 1 $ 145,114,289 LaSalle Bank National Association, as
Shares custodian for Delaware Bonds Holdings,
Inc.
