EXHIBIT 4.2
EXECUTION COPY
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INDENTURE
by and between
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-1,
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 May 16, 2002
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CapitalSource Commercial Loan Trust 2002-1 Loan-Backed Notes, Series 2002-1
Class A, Class B, Class C, and Class D Notes
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................... 2
Section 1.01 Definitions...................................................................... 2
Section 1.02 Rules of Construction............................................................ 9
ARTICLE II THE NOTES................................................................................. 9
Section 2.01 Form............................................................................. 9
Section 2.02 Execution, Authentication and Delivery........................................... 10
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................................................ 12
Section 3.06 Protection of Indenture Collateral............................................... 13
Section 3.07 Opinions as to Indenture Collateral.............................................. 14
Section 3.08 [Reserved]....................................................................... 14
Section 3.09 Performance of Obligations; Sale and Servicing Agreement......................... 14
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.............................. 16
Section 3.14 Indenture Trustee's Review of Loan Files......................................... 16
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................................ 17
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.......................................................... 19
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............................................................. 20
Section 3.25 Representations and Warranties of the Issuer..................................... 20
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........................................................ 23
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 Swaps........................................ 24
Section 3.33 Payments from Obligor Lock-Boxes and Obligor Lock-Box Accounts................... 26
ARTICLE IV THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE........................................ 26
Section 4.01 The Notes........................................................................ 26
Section 4.02 Registration of Transfer and Exchange of Notes................................... 26
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.................................................................... 37
Section 4.06 Satisfaction and Discharge of Indenture.......................................... 38
Section 4.07 Application of Trust Money....................................................... 39
Section 4.08 Repayment of Moneys Held by Paying Agent......................................... 39
ARTICLE V REMEDIES.................................................................................. 39
Section 5.01 Events of Default................................................................ 39
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................................ 45
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................................................... 47
Section 5.10 Delay or Omission Not a Waiver................................................... 47
Section 5.11 Control by Noteholders........................................................... 48
Section 5.12 Waiver of Past Defaults.......................................................... 49
Section 5.13 Undertaking for Costs............................................................ 49
Section 5.14 Waiver of Stay or Extension Laws................................................. 49
Section 5.15 Sale of Indenture Collateral..................................................... 49
Section 5.16 Action on Notes.................................................................. 51
Section 5.17 Performance and Enforcement of Certain Obligations............................... 51
ARTICLE VI THE INDENTURE TRUSTEE..................................................................... 52
Section 6.01 Duties of Indenture Trustee...................................................... 52
Section 6.02 Rights of Indenture Trustee...................................................... 53
Section 6.03 Individual Rights of Indenture Trustee........................................... 54
Section 6.04 Indenture Trustee's Disclaimer................................................... 54
Section 6.05 Notice of Event of Default....................................................... 54
Section 6.06 Reports by Indenture Trustee to Holders.......................................... 55
Section 6.07 Compensation and Indemnity....................................................... 55
Section 6.08 Replacement of Indenture Trustee................................................. 55
Section 6.09 Successor Indenture Trustee by Merger............................................ 57
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee................ 57
Section 6.11 Eligibility; Disqualification.................................................... 58
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........................................................................ 60
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS............................................................ 60
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TABLE OF CONTENTS
(continued)
PAGE
Section 7.01 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders........... 60
Section 7.02 Preservation of Information; Communications to Noteholders....................... 61
Section 7.03 Fiscal Year...................................................................... 61
ARTICLE VIII TRUST ACCOUNTS, DISBURSEMENTS AND RELEASES................................................ 61
Section 8.01 Collection of Money.............................................................. 61
Section 8.02 Trust Accounts................................................................... 62
Section 8.03 Opinion of Counsel............................................................... 62
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............................................ 63
ARTICLE IX SUPPLEMENTAL INDENTURES................................................................... 63
Section 9.01 Supplemental Indentures Without Consent of Noteholders........................... 63
Section 9.02 Supplemental Indentures With Consent of Noteholders.............................. 64
Section 9.03 Execution of Supplemental Indentures............................................. 66
Section 9.04 Effect of Supplemental Indenture................................................. 66
Section 9.05 [Reserved]....................................................................... 66
Section 9.06 Reference in Notes to Supplemental Indentures.................................... 66
ARTICLE X [RESERVED]................................................................................ 67
ARTICLE XI MISCELLANEOUS............................................................................. 67
Section 11.01 Compliance Certificates and Opinions, etc........................................ 67
Section 11.02 Form of Documents Delivered to Indenture Trustee................................. 68
Section 11.03 Acts of Noteholders.............................................................. 69
Section 11.04 Notices, etc., to Indenture Trustee and Others................................... 69
Section 11.05 Notices to Noteholders; Waiver................................................... 70
Section 11.06 Alternate Payment and Notice Provisions.......................................... 71
Section 11.07 [Reserved]....................................................................... 71
Section 11.08 Effect of Headings............................................................... 71
Section 11.09 Successors and Assigns........................................................... 71
Section 11.10 Severability..................................................................... 71
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TABLE OF CONTENTS
(continued)
PAGE
Section 11.11 Benefits of Indenture............................................................ 71
Section 11.12 Legal Holidays................................................................... 71
Section 11.13 GOVERNING LAW.................................................................... 72
Section 11.14 Counterparts..................................................................... 72
Section 11.15 [Reserved]....................................................................... 72
Section 11.16 Issuer Obligation................................................................ 72
Section 11.17 No Petition...................................................................... 72
Section 11.18 Inspection; Confidentiality...................................................... 73
Section 11.19 Limitation of Liability.......................................................... 73
Section 11.20 Disclaimer and Subordination..................................................... 73
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 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 May 16, 2002 (as amended, modified,
restated, replaced, substituted, supplemented, waived or extended from time to
time, the "Indenture"), is by and between CAPITALSOURCE COMMERCIAL LOAN TRUST
2002-1, a Delaware business 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 Swap 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 Swap 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 Swaps, 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 Swap Transaction, and (y) to secure compliance
with the covenants and agreement in this Indenture, the Swap and the other
Transaction Documents.
The Indenture Trustee, on behalf of the Noteholders and on behalf of
the Swap 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 Swap Counterparties may be adequately and
effectively protected.
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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 Swap Counterparty that is
outstanding on that date under all Swap 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.
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"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 November 20, 2004.
"Class B Expected Maturity Date" means March 20, 2005.
"Class C Expected Maturity Date" means April 20, 2006.
"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 Swap Counterparty, any Person
providing credit support on behalf of such Swap 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.
"Fixed Rate Permitted Excess Amount" means, with respect to Fixed Rate Loans,
$150,000.
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"Floating Prime Rate Permitted Excess Amount" means, with respect to Floating
Prime Rate Loans, $150,000.
"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.
"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 First Union Securities, Inc., or any successor
thereto.
"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 February 20, 2014.
"Letter of Representations" means the Letter of Representations, dated as of May
16, 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).
4
"Opinion" or "Opinion of Counsel" has the meaning given to such term in the Sale
and Servicing Agreement.
"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 or Class D 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 or Class D 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 or the Initial Class D 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).
"Private Placement Memorandum" means the Private Placement Memorandum, dated May
13, 2002 prepared in connection with the offer and sale of the Class A Notes and
the Class B Notes.
"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 Swap Counterparty" means a party that is a recognized dealer in
interest rate swaps, 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
5
itself or its Credit Support Provider: (a) at the time it becomes a Swap
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, after the Class C Interest Commencement
Date, 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 or, after the
Class C Interest Commencement Date, Class C 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, after the Class C
Interest Commencement Date, 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, after the
Class C Interest Commencement Date, 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 or, after the Class C Interest Commencement Date, Class C
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 "A2" 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, after the Class C Interest Commencement Date, 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 Swap,
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 Swap 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.
"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.
6
"Sale and Servicing Agreement" means the Sale and Servicing Agreement, dated as
of May 16, 2002, by and among CapitalSource Commercial Loan Trust 2002-1, as the
Trust, CapitalSource Commercial Loan LLC, 2002-1, 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 Act" means the Securities Act of 1933, as amended.
"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 APPLICABLE LAWS
AND ONLY (1) (A) 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, IN EACH
CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, OR (B) 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, SUBJECT TO (X) THE RECEIPT BY THE INDENTURE TRUSTEE OF A
LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (Y) 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 APPLICABLE LAWS, (2) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (4) PURSUANT TO An
effective REGISTRATION STATEMENT."
"Series" means 2002-1.
"Servicer's Certificate" means the certificate as defined in Section 9.02 of the
Sale and Servicing Agreement.
"Servicing Officer" means any officer of the Servicer involved in, or
responsible for, the administration and servicing of the Loans whose name
appears on a list of servicing officers furnished to the Indenture Trustee by
the Servicer, as such list may from time to time be amended.
"Substitute Swap Counterparty" means any substitute or replacement swap
counterparty under a Swap.
7
"Swap" means each agreement between the Issuer and a Swap Counterparty that
governs one or more Swap 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 Swap Transaction.
"Swap Counterparty" means Wachovia Bank, National Association or any other
Qualified Swap Counterparty that agrees that in the event that it or its Credit
Support Provider fails to maintain certain ratings as provided in the applicable
Swap, then the Swap Counterparty shall (i) transfer all of its rights and
obligations under the Swap to a Substitute Swap Counterparty as provided in the
Swap or (ii) post collateral, as applicable, as provided in the Swap.
"Swap Transactions" has the meaning given to such term in the Sale and Servicing
Agreement.
"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 Agreement" means the Trust Agreement, dated as of May 16, 2002, among the
Owner Trustee and the Trust Depositor.
"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.
"UCC" means, unless the context otherwise requires, the Uniform Commercial Code,
as in effect in the relevant jurisdiction, as amended from time to time.
"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).
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SECTION 1.02 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(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 and A-4 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 and A-4 are
part of the terms of this Indenture.
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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.
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, the Class
C Notes for original issue in an aggregate amount equal to the Initial Class C
Principal Balance and Class D Notes for original issue in an aggregate amount
equal to the Initial Class D 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 (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.
ARTICLE III
COVENANTS
SECTION 3.01 COLLECTION OF PAYMENTS ON LOANS; TRUST ACCOUNTS.
The Servicer shall establish and maintain 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
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case may be) shall within ten (10) Business Days establish a 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 Swaps 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 Swaps shall be paid over to the Issuer except as provided in this Section
3.03.
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 Swaps 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 Swaps;
(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;
(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 Swaps 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
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(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes or the
Swaps 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 business 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 Swaps, the other Transaction Documents, the Indenture Collateral and
each other instrument or agreement included in the Indenture Collateral.
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
Swaps in accordance with the terms thereof. The Issuer
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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 Swaps, to the applicable Swap 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 Swap 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 Swap 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 Swap 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
(iv) preserve and defend title to the Indenture Collateral
and the rights of the Indenture Trustee, the Noteholders and the Swap
Counterparties in such Indenture Collateral against the claims of all
persons and parties.
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(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 Swap 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 Swap 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 [RESERVED].
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
14
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 Swap 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 Swap 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:
(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 Swap 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 Swaps 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
15
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 Swap
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.
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 Swap 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 Swap Counterparties, to review the Loan Files as provided in Section 2.08 of
the Sale and Servicing Agreement.
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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 Swap and payment of all amounts
payable thereunder in connection with such termination, including Swap Breakage
Costs, release all of the Indenture Collateral to the Issuer (other than any
cash held for the payment of the Notes or the Swaps 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.
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
17
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 Swap Counterparty, in form satisfactory to the Indenture
Trustee and the Swap Counterparties, the due and punctual payment of
the principal of and interest on all Notes and all amounts payable
under the Swaps and the performance or observance of every agreement
and covenant of this Indenture, the Swaps, 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;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee and
the Swap Counterparties) to the effect that such transaction will not
have any material adverse tax consequence to the Issuer, any
Noteholder, any Swap 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 Swap 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:
18
(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 Swap Counterparty, in
form and substance reasonably satisfactory to the Indenture Trustee and
the Swap Counterparties, the due and punctual payment of the principal
of and interest on all Notes, the amounts payable under the Swaps and
each other Transaction Document, and the performance or observance of
every agreement and covenant of this Indenture and the Swaps 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 Swap
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 Swap Counterparty) to the effect that such transaction will not
have any material adverse tax consequence to the Issuer, any
Noteholder, any Swap 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 Swap 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
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with respect to the Notes or the Swaps 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 Swaps 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 Swaps 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.
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
20
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 (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 business 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.
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(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, 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 Swap 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.
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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 Swap 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.
SECTION 3.29 STATEMENTS TO NOTEHOLDERS.
The Indenture Trustee shall forward by mail to each Noteholder and each
Swap 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 Swap 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 Swap 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 Swap
Counterparties, the parties to the Transaction Documents and the Rating
Agencies. In connection with providing access to the Indenture Trustee's
Internet
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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, on and after receipt of
notice from the Servicer of the Class C Interest Commencement Date, 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 SWAPS.
(a) On each day, the Issuer shall maintain one or more Swap
Transactions, provided that each such Swap Transaction shall:
(i) be entered into with a Swap Counterparty and governed
by a Swap;
(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 Swap 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
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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
Swap 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
Swap Transactions under all Swaps 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 Swap will provide that any scheduled periodic
payments required to be made by the Issuer and the Swap Counterparty on
the same date with respect to a Swap 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 Swap 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 Swap Counterparty,
all right, title and interest of the Issuer in each Swap, each Swap Transaction,
and all present and future amounts payable by a Swap Counterparty to the Issuer
in accordance with the terms of the respective Swap and Swap Transaction(s) with
that Swap Counterparty ("Swap Collateral"), and Grants a security interest to
the Indenture Trustee, as agent for the Noteholders and each Swap Counterparty,
in the Swap 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 Swap or Swap Transaction,
except for the Issuer's right under any Swap to enter into Swap 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 Agreement. Nothing herein shall have the effect of releasing
the Issuer from any of its obligations under any Swap or any Swap Transaction,
nor be construed as requiring the consent of the Indenture Trustee, any
Noteholder or any Swap Counterparty for the performance by the Issuer of any
such obligations.
(c) The Issuer hereby agrees to maintain a register of outstanding
Swaps. Such register shall contain the name of each Swap Counterparty as well as
the address of each Swap 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 Swap
Counterparties and over which the Trustee shall have the exclusive control and
the sole right of withdrawal. The Trustee shall deposit all collateral received
from a Swap Counterparty under a Swap 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
25
Swap 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 Swap
Counterparty to the Issuer under Swap if such Swap becomes subject to early
termination or (ii) to return collateral to such Swap Counterparty when and as
required by such Swap. The Trustee shall be fully protected in relying upon such
Issuer Order. The Hedge Counterparty Collateral Account shall remain at all
times with the Corporate Trust Office of the Indenture Trustee or a financial
institution acceptable to the Swap Counterparties having a long-term debt rating
at least equal to "BBB+" or its equivalent.
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 maintained
without the prior written consent of the Indenture Trustee and with the consent
of the Majority Noteholders and the Swap 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.
ARTICLE IV
THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 4.01 THE NOTES.
Certain of the Class A Notes and the Class B Notes shall be registered
initially in the name of Cede & Co. Beneficial Owners will hold interests in the
Class A Notes and the Class B 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),
certain of the Class A Notes and Class B Notes and all of the Class C Notes and
the Class D Notes 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
26
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 and the
Initial Class D 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 and
the applicable Initial Class D Principal Balance.
At the option of the Class C Noteholders on and after the Class C
Interest Commencement Date, the Class C Note issued in the form of an Individual
Note may be exchanged for, and 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 Class C Principal Balance on
such date.
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
27
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.
(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
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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.
(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.
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(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
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
30
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 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.
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(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 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.
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(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. 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 (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
33
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 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.
34
(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
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 C Note and the Class D
Note each in the form of a single Individual Note in an aggregate principal
amount equal to the Initial Class C Principal Balance and Initial Class D
Principal Balance, as applicable; provided, however, upon request of the Class C
Noteholder, on and after the Class C Interest Commencement Date, the Indenture
Trustee shall authenticate in the name of, and deliver to, the Class C
Noteholder one or more Global Notes and/or Individual Notes in an aggregate
principal amount equal to the Class C Principal Balance on such date. The Holder
of the Class C Note and the Class D Note shall initially be the Trust Depositor.
No transfer, sale, pledge or other disposition of one or more Class C Notes,
Class D Notes or Trust Certificates shall be made until the Class C Interest
Commencement Date unless after giving effect to such transfer, sale, pledge or
other disposition the Class C Notes, the Class D Notes and the Trust
Certificates would be held by the same Person. No transfer, sale, pledge or
other disposition of one or more Class D Notes (a "Transfer") shall be made, on
and after the Class C Interest Commencement Date, 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 D Notes so Transferred to all Class D Notes are equal, (2) the
Transfers of the Trust Certificates and Class D Notes referred to herein are
made to the same Person, and (3) the Percentage Interest of the Trust
Certificates and Class D Notes, respectively, so transferred is no less than ten
(10%) percent.
(s) The Class C Notes (prior to the Class C Interest Commencement
Date) and the Class D Notes may only be owned by United States Persons (as
defined in Section 7701(a)(30) of the Code).
35
(t) No Class C Note (prior to the Class C Interest Commencement
Date) or Class D 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 C Note (prior to the Class C Interest Commencement Date) or
a Class D 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 C Note or a Class D 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 C Note (prior to the Class C
Interest Commencement Date) or a Class D 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.
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 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.
36
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 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 C Notes (prior
to the Class C Interest Commencement Date) and the Class D Notes) will qualify
as indebtedness secured by the Indenture Collateral and (ii) the Issuer shall
not be treated as an association or publicly traded partnership taxable as a
corporation. The Issuer, by entering into this Indenture, and each Noteholder
(other than the Class C Noteholders (prior to the Class C Interest Commencement
Date) and the Class D Noteholders), by the
37
acceptance of any such Note (and each beneficial owner of a Note, by it's
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 C Noteholders (prior
to the Class C Interest Commencement Date) and the Class D Noteholders) 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 C
Noteholders (prior to the Class C Interest Commencement Date), the Class D
Noteholders and the Certificateholders that, (i) until the Class C Interest
Commencement Date, the Trust Certificates, the Class C Notes and the Class D
Notes will be owned by a single Holder, and, therefore, for federal income tax
purposes, the Trust will be treated as a division of such Holder, and such
Holder, by acceptance of the Trust Certificates, the Class C Notes and the Class
D Notes, agrees to take no action inconsistent with such treatment and (ii) on
the Class C Interest Commencement Date and thereafter, in the event that the
Trust Certificates and/or the Class D Notes are owned by more than one (1)
Holder, the Trust will be treated as a partnership, the partners of which are
the Certificateholders and the Class D Noteholders, and the Certificateholders
and the Class D Noteholders, by acceptance of a Trust Certificate and a Class D
Note, respectively, agree to treat the Trust Certificates and the Class D Notes
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
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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
Swap when such Swap has been terminated and the Swap 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.
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;
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(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
Swap 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;
(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 Swap 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 Swap
Counterparties;
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(viii) the Issuer shall be required to register as an
"investment company" under the Investment Company Act of 1940, as
amended;
(ix) prior to the Class C Interest Commencement Date, the
Class C Notes, the Class D Notes and the Trust Certificates are not
held by the same Person; or
(x) on any day, any Swap Transaction fails to meet the
requirements set forth in this Agreement.
The Issuer shall deliver to the Indenture Trustee, each Swap
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.
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 Swap 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 Swap and all other amounts
that would then be due hereunder, upon the Notes and
each Swap 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.
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No such rescission or annulment shall affect any subsequent default or
impair any right consequent thereto. No such rescission or annulment shall
affect a Swap or any Swap 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.
(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 Swap 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:
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(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;
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,
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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 Swap Counterparties; and
(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
and the Class B 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 and, unless it shall be paid in full all amounts payable to each Swap
Counterparty upon a termination of its Swap, each Swap Counterparty consents
thereto, (ii) from and after the payment in full of the Class A Notes, the Class
B Notes and amounts due under the Swaps, Class C Noteholders evidencing 100% of
the aggregate Outstanding Principal Balance of all Class C Notes consent
thereto, (iii) from and after payment in full of the Class A Notes, the Class B
Notes, the Class C Notes and amounts due under the Swaps, the Class D
Noteholders evidencing 100% of the aggregate Outstanding Principal Balance of
all Class D Notes consent 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 Swap Counterparty upon termination of the Swaps, 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
44
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 and the Class B 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 and, unless it shall be paid in full all amounts payable to
each Swap Counterparty upon a termination of its Swap, each Swap Counterparty,
(ii) from and after the payment in full of the Class A Notes, the Class B Notes
and amounts due under the Swaps, Class C Noteholders evidencing 66 2/3% of the
aggregate Outstanding Principal Balance of all Class C Notes, and (iii) 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 Swaps, the Class D Noteholders evidencing 66
2/3% of the aggregate Outstanding Principal Balance of all Class D 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 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 Swaps 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.
45
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
and the Class B Notes, the Class A Noteholders evidencing 25% of the
aggregate Outstanding Principal Balance of all Class A Notes and the
Class B Noteholders evidencing 25% of the aggregate Outstanding
Principal Balance of all Class B 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, (B) from and
after the payment in full of the Class A Notes and the Class B Notes,
Class C Noteholders evidencing 25% of the aggregate Outstanding
Principal Balance of all Class C 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, and (C) from
and after the payment in full of the Class A Notes, the Class B Notes
and the Class C Notes, Class D Noteholders evidencing 25% of the
aggregate Outstanding Principal Balance of all Class D 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;
(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
and Class B 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 and Class B Notes, (B) from and after
payment in full of the Class A Notes and the Class B 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 C Notes, and
(C) from and after payment in full of the Class A Notes, the Class B
Notes and the Class C 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 D 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
46
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 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.
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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 and the Class B Notes, 100% of
the aggregate Outstanding Principal Balance of all Class A Notes and
the Class B Noteholders and, unless it shall be paid in full all
amounts payable to each Swap Counterparty upon a termination of its
Swap, each Swap Counterparty, (B) from and after the payment in full of
the Class A Notes, the Class B Notes and amounts due under the Swaps,
100% of the aggregate Outstanding Principal Balance of all Class C
Notes, (C) from and after the payment in full of the Class A Notes, the
Class B Notes, amounts due under the Swaps, and the Class C Notes, 100%
of the aggregate Outstanding Principal Balance of all Class D 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
force and effect unless (A) prior to the payment in full of the Class A
Notes and the Class B Notes, the Class A Noteholders evidencing 100% of
the aggregate Outstanding Principal Balance of all Class A Notes and
the Class B Noteholders evidencing 100% of the aggregate Outstanding
Principal Balance of all Class B Notes and, unless it shall be paid in
full all amounts payable to each Swap Counterparty upon a termination
of its Swap, each Swap Counterparty consent thereto, (B) from and after
the payment in full of the Class A Notes, the Class B Notes and amounts
due under the Swaps, Class C Noteholders evidencing 100% of the
aggregate Outstanding Principal Balance of all Class C Notes consent
thereto (C) from and after the payment in full of the Class A Notes,
the Class B Notes, amounts due under the Swaps, and the Class C Notes,
Class D Noteholders evidencing 100% of the aggregate Outstanding
Principal Balance of all Class D Notes consent 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 Swap Counterparties not consenting to
such action.
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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
Swap or any Swap Transaction that has been terminated in accordance with its
terms.
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
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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 and Class C Notes (from and after the Class C
Interest Commencement Date) and each Swap 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 Swap Counterparties under the Swaps, in full payment thereof
(including all Swap Breakage Costs and other amounts payable in
connection with the termination of the Swaps) on the Remittance Date
next succeeding the date of such Sale, or
(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 Swap
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
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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.
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 Swap 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 and the Class B Notes, the Class A
Noteholders evidencing 66 2/3% of the aggregate Outstanding Principal Balance of
all Class A Notes and the Class B Noteholders evidencing 66 2/3% of the
aggregate Outstanding Principal Balance of all Class B Notes consent thereto,
(ii) from and after the payment in full of the Class A Notes and the Class B
Notes, Class C Noteholders evidencing 66 2/3% of the aggregate Outstanding
Principal Balance of all Class C Notes consent thereto, and (iii) from and
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after the payment in full of the Class A Notes, the Class B Notes and the Class
C Notes, Class D Noteholders evidencing 66 2/3% of the aggregate Outstanding
Principal Balance of all Class D Notes consent 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.
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.
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(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.
(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.
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(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 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 Swap
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 Swap Counterparties.
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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 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;
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(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.
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 Swap 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 Swap 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.
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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 Swap Counterparties prior written notice of
any such transaction.
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 Swap 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 Swap 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
57
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
(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 Swap 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.
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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 Swap Counterparties shall rely:
(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
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Noteholders or the Swap 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 Swap Counterparties;
(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 (from and after the Class C Interest Commencement Date) and the Class C
Notes (prior to the Class C Interest Commencement Date) and the Class D Notes,
the Issuer shall appoint a successor Indenture Trustee for the Class A Notes,
the Class B Notes and the Class C Notes (from and after the Class C Interest
Commencement Date) and a successor for the Class C Notes (prior to the Class C
Interest Commencement Date) and the Class D Notes so that there will be separate
Indenture Trustees for the Class A Notes, the Class B Notes and the Class C
Notes (from and after the Class C Interest Commencement Date) on the one hand,
and for the Class C Notes (prior to the Class C Interest Commencement Date) and
the Class D Notes 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
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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.
(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
Swap 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.
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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 Swap 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 Swap Counterparties in
respect of the Swaps, 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 Swap 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 Swap 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 Swaps or the rights of the Noteholders and the Swap
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.
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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 Swap 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.
(b) The Indenture Trustee shall, at such time as (i) there are no
Notes Outstanding, (ii) all outstanding Swap Transactions under all Swaps then
in effect have been terminated and all payments payable to the Swap
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;
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(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 Swap 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 Trustee, adversely affect
the interests of the Noteholders or the Swap 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; and
(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.
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 Swap
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 Swap 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.
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 Swap Counterparties,
enter into an indenture or indentures supplemental
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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:
(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; or
(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
Swap 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.
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 Swap 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
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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.
It shall not be necessary for any Act of Noteholders or Swap
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 Swap 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.
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
conform, in the opinion of the Indenture Trustee and the Issuer, to any such
supplemental
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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) (i) 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 imposed in subsection
11.01(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an
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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 such application or at the effective date of such certificate or
report (as the case may be), of the
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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 2002-1, c/o Wilmington Trust
Company, Xxx Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration, with a copy to CapitalSource
Finance LLC at 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx Xxxxx, Xxxxxxxx
00000, Attention: Xxxxx
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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; 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 Swap 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.
70
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 Swap 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.
71
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
72
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 Swap 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).
73
In furtherance of and not in derogation of the foregoing, each Noteholder by
accepting a Note and each Swap 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 Swap 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 Swap 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 Swap
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 Swap
Counterparty against any guaranty by CapitalSource Finance LLC of the Issuer's
obligations under any Swap.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
74
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 2002-1
By: WILMINGTON TRUST COMPANY, not
in its individual capacity,
but solely as Owner Trustee
on behalf of the Trust
By: /s/ Xxxxx X. Xxxxxx
_____________________________
Name: Xxxxx X. Xxxxxx
___________________________
Title: Vice President
__________________________
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 14th of [May __], 2002, before me personally appeared Xxxxx X.
Xxxxxx, to me known, who being by me duly sworn, did depose and say, that he
resides in Wilmington, DE _____, that he is the Vice President 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 14th day of May, 2002, before me personally appeared
Xxxxxxx Xxxxx, to me known, who being by me duly sworn, did depose and say,
that he resides at Minneapolis, Minnesota 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/ Xxxxxxxx X. Xxxxx
_________________________________
Notary Public
EXHIBIT A-1
[FORM OF CLASS A NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-1
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 APPLICABLE LAWS AND ONLY (1) (A)
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, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (B) 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, SUBJECT TO (X) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (Y) 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 APPLICABLE LAWS, (2) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (4) 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 (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 AND HOLDING 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
A-1-1
& 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. 012753667]
CapitalSource Commercial Loan Trust 2002-1, a business 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: [________________], 2002
CAPITALSOURCE COMMERCIAL LOAN
TRUST 2002-1
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
2002-1 designated above and referred to in the within-mentioned Indenture.
Date: [_______________], 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
2002-1, Class A (herein called the "Class A Notes"), all issued under an
Indenture, dated as of May 16, 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 May 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 calendar day immediately preceding
a Remittance Date (or, in the case of the first Remittance Date, May 19, 2002)
(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
A-1-5
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 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 Instruments.
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:
Amount of Amount of Principal Amount
decrease in increase in of this Global Signature of
Principal Amount Principal Amount Note following Responsible
Date of of this Global of this Global such decrease Officer of Note
Exchange Note Note (or increase) 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.
X-0-0
XXXXXXX X-0
[FORM OF CLASS B NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-1
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 APPLICABLE LAWS AND ONLY (1) (A)
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, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (B) 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, SUBJECT TO (X) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (Y) 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 APPLICABLE LAWS, (2) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (4) 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 (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 AND HOLDING 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
A-2-1
& 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. 012753691]
CapitalSource Commercial Loan Trust 2002-1, a business 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: [__________________], 2002
CAPITALSOURCE COMMERCIAL LOAN
TRUST 2002-1
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 2002-1
designated above and referred to in the within-mentioned Indenture.
Date: [__________________], 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
2002-1, Class B (herein called the "Class B Notes"), all issued under an
Indenture, dated as of May 16, 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 May 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 calendar day immediately preceding
a Remittance Date (or in the case of the first Remittance Date, May 19, 2002)
(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 Instruments.
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:
Amount of Amount of Principal Amount
decrease in increase in of this Global Signature of
Principal Amount Principal Amount Note following Responsible
Date of of this Global of this Global such decrease Officer of Note
Exchange Note Note (or increase) 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.
X-0-0
XXXXXXX X-0
[FORM OF CLASS C NOTE]
CAPITALSOURCE COMMERCIAL LOAN TRUST 2002-1
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 APPLICABLE LAWS AND ONLY (1) (A)
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, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (B) 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, SUBJECT TO (X) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (Y) 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 APPLICABLE LAWS, (2) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (4) 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 (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 AND HOLDING 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
A-3-1
& 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 ON
AND AFTER THE CLASS C INTEREST COMMENCEMENT DATE 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.
NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF ONE OR MORE CLASS C
NOTES SHALL BE MADE UNTIL THE CLASS C INTEREST COMMENCEMENT DATE UNLESS AFTER
GIVING EFFECT TO SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION THE CLASS C
NOTES, THE CLASS D NOTES AND THE TRUST CERTIFICATES WOULD BE HELD BY THE SAME
PERSON.
THIS CLASS C NOTE (PRIOR TO THE CLASS C INTEREST COMMENCEMENT DATE) 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.
A-3-2
REGISTERED $_______________
No. C-
SEE REVERSE FOR CERTAIN DEFINITIONS
[CUSIP NO. ___________]
[Reg S ISIN NO._______]
[Reg S CUSIP No._________]
[Common Code No. 012753691]
CapitalSource Commercial Loan Trust 2002-1, a business 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: [__________________], 2002
CAPITALSOURCE COMMERCIAL LOAN
TRUST 2002-1
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 2002-1
designated above and referred to in the within-mentioned Indenture.
Date: [__________________], 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
2002-1, Class C (herein called the "Class C Notes"), all issued under an
Indenture, dated as of May 16, 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 prior to the Class C Interest Commencement
Date, commencing May 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 last Business Day of the month immediately preceding a
Remittance Date (or in the case of the first Remittance Date, May 19, 2002) (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; provided, however, notwithstanding the foregoing,
if, after the Class C Interest Commencement Date, the Class C Note is issued as
a book-entry Note the Record Date shall be the close of business on the calendar
day immediately preceding a Remittance Date.
Prior to the Class C Interest Commencement Date, this Class C Note will
not bear interest. During each Interest Accrual Period on and after the Class C
Interest Commencement Date, 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
A-3-5
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.
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 Instruments.
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:
Amount of Amount of Principal Amount
decrease in increase in of this Global Signature of
Principal Amount Principal Amount Note following Responsible
Date of of this Global of this Global such decrease Officer of Note
Exchange Note Note (or increase) 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: ____________________________ _________________________________(6)
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 2002-1
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 APPLICABLE LAWS AND ONLY (1) (A)
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, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, OR (B) 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, SUBJECT TO (X) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (Y) 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 APPLICABLE LAWS, (2) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (4) PURSUANT TO A VALID
REGISTRATION STATEMENT. THE PURCHASE OF THIS NOTE WILL BE DEEMED A
REPRESENTATION BY THE ACQUIRER THAT 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.
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 D NOTE TO RECEIVE INTEREST ARE
SUBORDINATED TO THE RIGHTS OF THE HOLDERS OF THE CLASS A NOTES, THE CLASS B
NOTES AND (ON AND AFTER THE CLASS C INTEREST COMMENCEMENT DATE) THE CLASS C
NOTES TO RECEIVE INTEREST
A-4-1
AND 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 AND INTEREST.
NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF ONE OR MORE CLASS D
NOTES SHALL BE MADE UNTIL THE CLASS C INTEREST COMMENCEMENT DATE UNLESS AFTER
GIVING EFFECT TO SUCH TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION THE CLASS C
NOTES, THE CLASS D NOTES AND THE TRUST CERTIFICATES WOULD BE HELD BY THE SAME
PERSON.
THIS CLASS D 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 D
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 D NOTES SO
TRANSFERRED TO THE PERCENTAGE INTEREST OF ALL CLASS D NOTES ARE EQUAL, (2) THE
TRANSFERS OF THE TRUST CERTIFICATES AND CLASS D NOTES REFERRED TO HEREIN ARE
MADE TO THE SAME PERSON, AND (3) THE PERCENTAGE INTEREST OF THE TRUST
CERTIFICATES AND CLASS D NOTES, RESPECTIVELY, SO TRANSFERRED IS NO LESS THAN TEN
(10%) PERCENT.
A-4-2
REGISTERED $_______________
No. D-
SEE REVERSE FOR CERTAIN DEFINITIONS
CapitalSource Commercial Loan Trust 2002-1, a business 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: [__________________], 2002
CAPITALSOURCE COMMERCIAL LOAN
TRUST 2002-1
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 2002-1
designated above and referred to in the within-mentioned Indenture.
Date: [__________________], 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
2002-1, Class D (herein called the "Class D Notes"), all issued under an
Indenture dated as of May 16, 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 May 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 last Business Day of the month
immediately preceding a Remittance Date (or in the case of the first Remittance
Date, May 19, 2002) (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.
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 Instruments.
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 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.
A-4-6
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: _______________________ __________________________________(7)
Signature Guaranteed:
----------------------------
(7) 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-4-7
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 2002-1, [Class A]
[Class B] [Class C]
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 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 2002-1
Class A, Class B, Class C, and Class D 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
or Class C Note and Prohibited Transaction Class Exemption ("PTCE") 00-00, XXXX
00-0, XXXX 91-38, PTCE 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 or Class C Note, (h) if the purchaser is acquiring a Class D
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 D Note, the purchase 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 D Notes being acquired to all Class D Notes are
equal.
Very truly yours,
_________________________________________
Print Name of Transferee
By: _____________________________________
Responsible Officer
X-0-0
XXXXXXX X-0
FORM OF RULE 144A CERTIFICATION
CapitalSource Finance LLC,
as the Servicer
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx 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 2002-1
Class A, Class B, Class C, and Class D 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,
or Class C Note and Prohibited Transaction Class Exemption ("PTCE") 84-14, XXXX
00-0, XXXX 00-00,
X-0-0
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 or Class C Note, (f) if we are acquiring a Class D 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
D 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 D Notes
being acquired to all Class D 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
X-0-0
XXXXX 0 XX XXXXXXX X-0
[FORM OF CERTIFICATION]
[Date]
CapitalSource Finance LLC,
as the Servicer
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx 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 2002-1 Class A, Class
B, Class C, and Class D 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
----------------------------
* 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
company as defined in Section 2(a)(48) 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
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 2002-1
Class [A], [B] and [C]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 16, 2002 (as amended,
modified, waived, supplemented or restated from time to time, the "Agreement"),
between CapitalSource Commercial Loan Trust 2002-1, 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 2002-1
Class [A], [B] and [C]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 16, 2002 (as amended,
modified, waived, supplemented or restated from time to time, the "Agreement"),
between CapitalSource Commercial Loan Trust 2002-1, 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
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(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 2002-1
Class [A], [B] and [C]
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 16, 2002 (as amended,
modified, waived, supplemented or restated from time to time, the "Agreement"),
between CapitalSource Commercial Loan Trust 2002-1, 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 2002-1
Class [A], [B] and [C]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 4.02 of the Indenture, dated
as of May 16, 2002 (as amended, modified, waived, supplemented or restated from
time to time, the "Agreement"), between CapitalSource Commercial Loan Trust
2002-1, 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
H-1
upon completion of the transaction, the Transferred Interest
will be held with the Depository through [Euroclear]
[Clearstream];
(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:
H-2
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 2002-1
Class A, Class B, Class C, and Class D Notes
In accordance with Section 3.29 of the Indenture, dated as of May 16,
2002 (as amended, modified, waived, supplemented or restated from time to time,
the "Agreement"), by and between CapitalSource Commercial Loan Trust 2002-1, 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.
I-1
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: _____________________________________
Title: __________________________________
Company: ________________________________
Phone: __________________________________
I-2
