Exhibit 4.1


 


EXECUTION COPY


 


AMENDED
AND RESTATED MASTER INDENTURE


 


DATED
AS OF MARCH 17, 2006


 






 


BETWEEN


 


SPIRIT
MASTER FUNDING, LLC,


 


AS
AN ISSUER,


 


AND


 


CITIBANK,
N.A.


 


AS
INDENTURE TRUSTEE


 


NET-LEASE
MORTGAGE NOTES


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS AND OTHER PROVISIONS
  OF GENERAL APPLICATION

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  2

  
	
  Section 1.02

  	
  Rules of Construction

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE NOTES

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Forms; Denominations

  	
  21

  
	
  Section 2.02

  	
  Execution, Authentication, Delivery and Dating

  	
  22

  
	
  Section 2.03

  	
  Certification of Receipt of the Collateral

  	
  23

  
	
  Section 2.04

  	
  The Notes Generally; New Issuances

  	
  24

  
	
  Section 2.05

  	
  Registration of Transfer and Exchange of Notes

  	
  26

  
	
  Section 2.06

  	
  Book-Entry Notes

  	
  30

  
	
  Section 2.07

  	
  Mutilated, Destroyed, Lost or Stolen Notes

  	
  32

  
	
  Section 2.08

  	
  Noteholder Lists

  	
  32

  
	
  Section 2.09

  	
  Persons Deemed Owners

  	
  33

  
	
  Section 2.10

  	
  Payment Account

  	
  33

  
	
  Section 2.11

  	
  Payments on the Notes

  	
  33

  
	
  Section 2.12

  	
  Final Payment Notice

  	
  38

  
	
  Section 2.13

  	
  Compliance with Withholding Requirements

  	
  38

  
	
  Section 2.14

  	
  Cancellation

  	
  39

  
	
  Section 2.15

  	
  The Insurance Policies

  	
  39

  
	
  Section 2.16

  	
  The Hedge Agreements

  	
  40

  
	
  Section 2.17

  	
  Tax Treatment of the Notes and the Issuers

  	
  42

  
	
  Section 2.18

  	
  Cashflow Coverage Reserve Account

  	
  42

  
	
  Section 2.19

  	
  Representations and Warranties With Respect To Mortgage Loans,
  Mortgaged Properties and Leases

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  SATISFACTION AND DISCHARGE

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Satisfaction and Discharge of Indenture

  	
  43

  
	
  Section 3.02

  	
  Application of Trust Money

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  EVENTS OF DEFAULT; REMEDIES

  	
  45

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Events of Default

  	
  45

  
	
  Section 4.02

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  46

  
	
  Section 4.03

  	
  Collection of Indebtedness and Suits for Enforcement by Indenture
  Trustee

  	
  47

  
	
  Section 4.04

  	
  Remedies

  	
  49

  
	
  Section 4.05

  	
  Application of Money Collected

  	
  50

  
	
  Section 4.06

  	
  Limitation on Suits

  	
  50

  
	
  Section 4.07

  	
  Unconditional Right of Noteholders to Receive Principal and Interest

  	
  51

  
	
  Section 4.08

  	
  Restoration of Rights and Remedies

  	
  51

  



 


i

















 


	
  Section 4.09

  	
  Rights and Remedies Cumulative

  	
  51

  
	
  Section 4.10

  	
  Delay or Omission Not Waiver

  	
  51

  
	
  Section 4.11

  	
  Control by Requisite Global Majority

  	
  51

  
	
  Section 4.12

  	
  Waiver of Past Defaults

  	
  52

  
	
  Section 4.13

  	
  Undertaking for Costs

  	
  52

  
	
  Section 4.14

  	
  Waiver of Stay or Extension Laws

  	
  53

  
	
  Section 4.15

  	
  Sale of Collateral

  	
  53

  
	
  Section 4.16

  	
  Action on Notes

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  THE INDENTURE TRUSTEE

  	
  55

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Certain Duties and Responsibilities

  	
  55

  
	
  Section 5.02

  	
  Notice of Defaults

  	
  58

  
	
  Section 5.03

  	
  Certain Rights of Indenture Trustee

  	
  58

  
	
  Section 5.04

  	
  Compensation; Reimbursement; Indemnification

  	
  60

  
	
  Section 5.05

  	
  Corporate Indenture Trustee Required; Eligibility

  	
  62

  
	
  Section 5.06

  	
  Authorization of Indenture Trustee

  	
  62

  
	
  Section 5.07

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  63

  
	
  Section 5.08

  	
  Resignation and Removal; Appointment of Successor

  	
  63

  
	
  Section 5.09

  	
  Acceptance of Appointment by Successor

  	
  64

  
	
  Section 5.10

  	
  Unclaimed Funds

  	
  65

  
	
  Section 5.11

  	
  Illegal Acts

  	
  65

  
	
  Section 5.12

  	
  Communications by the Indenture Trustee

  	
  65

  
	
  Section 5.13

  	
  Separate Indenture Trustees and Co-Trustees

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  REPORTS TO NOTEHOLDERS

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Reports to Noteholders and Others

  	
  67

  
	
  Section 6.02

  	
  Certain Communications with the Rating Agencies

  	
  68

  
	
  Section 6.03

  	
  Access to Certain Information

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  REDEMPTION; SERIES ENHANCEMENT

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Redemption of the Notes

  	
  70

  
	
  Section 7.02

  	
  Series Enhancement

  	
  70

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  SUPPLEMENTAL
  INDENTURES; AMENDMENTS

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Supplemental Indentures or Amendments Without Consent of Noteholders

  	
  70

  
	
  Section 8.02

  	
  Supplemental Indentures With Consent

  	
  72

  
	
  Section 8.03

  	
  Delivery of Supplements and Amendments

  	
  73

  
	
  Section 8.04

  	
  Series Supplements

  	
  73

  
	
  Section 8.05

  	
  Execution of Supplemental Indentures, etc

  	
  74

  
	
  Section 8.06

  	
  Amendments to any Insurance Policy

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  COVENANTS; WARRANTIES

  	
  75

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Maintenance of Office or Agency

  	
  75

  
	
  Section 9.02

  	
  Existence and Good Standing

  	
  75

  



 


ii

















 


	
  Section 9.03

  	
  Payment of Taxes and Other Claims

  	
  75

  
	
  Section 9.04

  	
  Validity of the Notes; Title to the Collateral; Lien

  	
  76

  
	
  Section 9.05

  	
  Protection of Collateral Pool

  	
  77

  
	
  Section 9.06

  	
  Negative Covenants

  	
  78

  
	
  Section 9.07

  	
  Statement as to Compliance

  	
  79

  
	
  Section 9.08

  	
  Issuers May Consolidate, Etc., Only on Certain Terms

  	
  79

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  COVENANTS REGARDING MORTGAGED
  PROPERTIES

  	
  81

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Insurance

  	
  81

  
	
  Section 10.02

  	
  Mortgage Loans, Leases and Rents

  	
  81

  
	
  Section 10.03

  	
  Compliance With Laws

  	
  81

  
	
  Section 10.04

  	
  Estoppel Certificates

  	
  82

  
	
  Section 10.05

  	
  Other Rights, Etc

  	
  83

  
	
  Section 10.06

  	
  Right to Release Any Portion of the Collateral Pool

  	
  83

  
	
  Section 10.07

  	
  Environmental Covenants

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  COSTS

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Performance at the Issuers’ Expense

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  MISCELLANEOUS

  	
  85

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Execution Counterparts

  	
  85

  
	
  Section 12.02

  	
  Compliance Certificates and Opinions, etc

  	
  85

  
	
  Section 12.03

  	
  Form of Documents Delivered to Indenture Trustee

  	
  85

  
	
  Section 12.04

  	
  No Oral Change

  	
  86

  
	
  Section 12.05

  	
  Acts of Noteholders

  	
  87

  
	
  Section 12.06

  	
  Computation of Percentage of Noteholders

  	
  87

  
	
  Section 12.07

  	
  Notice to the Indenture Trustee, the Issuers and Certain Other
  Persons

  	
  87

  
	
  Section 12.08

  	
  Notices to Noteholders; Notification Requirements and Waiver

  	
  88

  
	
  Section 12.09

  	
  Successors and Assigns

  	
  88

  
	
  Section 12.10

  	
  Interest Charges; Waivers

  	
  88

  
	
  Section 12.11

  	
  Severability Clause

  	
  89

  
	
  Section 12.12

  	
  Governing Law

  	
  89

  
	
  Section 12.13

  	
  Insurer Default

  	
  89

  
	
  Section 12.14

  	
  Effect of Headings and Table of Contents

  	
  89

  
	
  Section 12.15

  	
  Benefits of Indenture

  	
  90

  
	
  Section 12.16

  	
  Trust Obligation

  	
  90

  
	
  Section 12.17

  	
  Inspection

  	
  90

  
	
  Section 12.18

  	
  Method of Payment

  	
  90

  
	
  Section 12.19

  	
  Limitation on Liability of the Issuers

  	
  90

  



 


Exhibits


 


	
  Exhibit A-1

  	
  Form of
  Restricted Global Net-Lease Mortgage Note

  	
   

  
	
  Exhibit A-2

  	
  Form of
  Regulation S Global Net-Lease Mortgage Note

  	
   

  



 


iii

















 


	
  Exhibit A-3

  	
  Form of
  Definitive Global Net-Lease Mortgage Note

  	
   

  
	
  Exhibit B

  	
  Form of
  Trustee Report

  	
   

  
	
  Exhibit C-1

  	
  Form of
  Transferor Certificate for Transfers of Definitive Notes

  	
   

  
	
  Exhibit C-2

  	
  Form of
  Transferee Certificate for Transfers of Definitive Notes

  	
   

  
	
  Exhibit D-1

  	
  Form of
  Transfer Certificate for Transfers From Regulation S Global Note to
  Restricted Global Note

  	
   

  
	
  Exhibit D-2

  	
  Form of
  Transfer Certificate for Transfer from Restricted Global Note to Regulation S
  Global Note During the Restricted Period

  	
   

  
	
  Exhibit D-3

  	
  Form of
  Transfer Certificate for Transfer from Restricted Global Note to Regulation S
  Global Note After the Restricted Period

  	
   

  
	
  Exhibit D-4

  	
  Form of
  Regulation S Letter for Exchange of Interests in the Temporary Regulation S
  Global Note for Interests in the Permanent Regulation S Global Note

  	
   

  
	
  Exhibit E-1

  	
  Form of
  Certificate with Respect to Information Request by Beneficial Owner

  	
   

  
	
  Exhibit E-2

  	
  Form of Certificate with Respect to
  Information Request by Prospective Purchaser

  	
   

  



 


iv

















 


AMENDED AND RESTATED MASTER INDENTURE, dated
as of March 17, 2006 (as amended, modified or supplemented from time to
time as permitted hereby, the “Indenture”),
between Spirit Master Funding, LLC, a Delaware limited liability company, as an
issuer (an “Issuer”), and Citibank, N.A.,
a national banking association, not in its individual capacity, but solely as
Indenture Trustee (the “Indenture Trustee”)
under this Indenture.


 


PRELIMINARY
STATEMENT


 


The Issuers (as defined herein) have duly authorized the execution and
delivery of this Indenture to provide for the issuance of their respective series of
Net-Lease Mortgage Notes (collectively, the “Notes”),
to be issued pursuant to this Indenture. The Notes issuable under this
Indenture shall be issued in series (each, a “Series”),
as from time to time may be created by supplements (each, a “Series Supplement”) to this
Indenture.


 


In connection
with each Series of Notes issued under this Indenture, the applicable Issuers
may enter into agreements with other entities that will provide credit
enhancement or other protection for the Holders of a Series of Notes and the
applicable Issuers will incur obligations under the terms of such agreements.


 


All things necessary to make the Notes, when
the Notes are executed by the applicable Issuers and authenticated and
delivered by the Indenture Trustee hereunder and duly issued by such Issuers,
the valid and legally binding obligations of such Issuers enforceable in
accordance with their terms, and to make this Indenture a valid and legally
binding agreement of such Issuers enforceable in accordance with its terms,
have been done.


 


GRANTING
CLAUSE


 


Each of the
Issuers hereby Grants to the Indenture Trustee on the applicable Series Closing
Date, for the benefit of the Indenture Trustee, the Noteholders and the Insurers,
all of such Issuer’s right, title and interest in and to the assets of such Issuer,
together with the assets of any other Issuers (individually, the “Collateral” and, collectively, the “Collateral Pool”), including, without
limitation, (i) such Issuer’s Mortgaged Properties, (ii) each of the
Leases with respect to such Mortgaged Properties and all payments required
thereunder on and after the applicable Series Closing Date or Transfer
Date, (iii) such Issuer’s Equipment Loans, (iv) such Issuer’s Mortgage
Loans and all payments required thereunder on and after the applicable Series Closing
Date or Transfer Date, (v) all of such Issuer’s right, title and interest
in all fixtures and reserves and escrows, if any, related to such Issuer’s Mortgaged
Properties, (vi) any guarantees of and security for the Tenants’ obligations
under the Leases, including any security deposits thereunder, (vii) all of
such Issuer’s rights under the applicable Performance Undertaking and
Environmental Indemnity Agreement, (viii) all of such Issuer’s rights (but
none of its obligations) under the Purchase and Sale Agreements, (ix) the
Collection Account, the Release Account, the Lockbox Accounts, the Cashflow
Coverage Reserve Account, the Payment Account and any other accounts (other
than any Insurance Policy Proceeds Account) established under the Transaction
Documents for purposes of receiving, retaining and distributing amounts
received in respect of the Collateral Pool and making payments to the holders
of the Notes and the Insurers and making distributions to the holders of the LLC
Interests, and all funds and Permitted Investments as may from time to
time be deposited therein, (x) all present and future


 

















 


claims, demands and causes of
action in respect of the foregoing, and (xi) all proceeds of the foregoing of
every kind and nature whatsoever, including, without limitation, all proceeds
of the conversion thereof, voluntary or involuntary, into cash or other liquid
property, all cash proceeds, accounts receivable, notes, drafts, acceptances,
chattel paper, checks, deposit accounts, rights to payment of any and every
kind and other forms of obligations and receivables, instruments and other
property that at any time constitute all or part of or are included in the
proceeds of the foregoing.


 


The foregoing Grants are made in trust to
secure the payment of principal of and interest on, and any other amounts owing
in respect of, the Notes, and of all amounts owing to the Insurers under the related
Insurance Agreements and to secure compliance with the provisions of this
Indenture, all as provided in this Indenture and each Series Supplement.


 


GENERAL COVENANT


 


IT IS HEREBY COVENANTED AND DECLARED that the
Notes are to be authenticated and delivered by the Indenture Trustee on the
applicable Series Closing Dates, that the Collateral is to be held by or
on behalf of the Indenture Trustee and that moneys in or from the Collateral Pool
are to be applied by the Indenture Trustee for the benefit of the Noteholders
and the Insurers, subject to the further covenants, conditions and trusts
hereinafter set forth, and each Issuer does hereby represent and warrant, and
covenant and agree, to and with the Indenture Trustee, for the equal and
proportionate benefit and security of each Noteholder and for the benefit of
the Insurers, as follows:


 


ARTICLE I



DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION


 


Section 1.01                            Definitions.


 


Whenever used in this Indenture, including in
the Preliminary Statement, the Granting Clause and the General Covenant
hereinabove set forth, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this Section 1.01
or, if not specified in this Section 1.01, then in the Property
Management Agreement.


 


“1933 Act”:  The
Securities Act of 1933, as amended, and the rules, regulations and published
interpretations of the SEC promulgated thereunder from time to time.


 


“1939 Act”:  The Trust Indenture Act of 1939, as amended,
and the rules, regulations and published interpretations of the SEC promulgated
thereunder from time to time.


 


“1940 Act”:  The Investment Company Act of 1940, as
amended, and the rules, regulations and published interpretations of the SEC
promulgated thereunder from time to time.


 


“Account Control Agreement”: As
defined in the Property Management Agreement.


 


2

















 


“Accrual Period”:  With respect to any Class of Notes, as
defined in the applicable Series Supplement.


 


“Act”:  As defined in Section 12.05.


 


“Additional Servicing Compensation”:  As defined in the Property Management
Agreement.


 


“Affiliate”:  With respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, “control” when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.


 


“Aggregate Collateral Value”:  On any date of determination, the sum of the
Collateral Values of the Mortgage Loans and Mortgaged Properties (that do not
otherwise secure Mortgage Loans), that are included in the Collateral Pool.


 


“Aggregate Note Principal
Balance”:  For any date of
determination and any Series, the sum of the Class Principal Balances of
each Class of Notes of such Series.


 


“Aggregate Series Principal Balance”:
 On any date of determination, the sum of
the Aggregate Note Principal Balances of each Series, in each case after giving
effect to any payments of principal on such date.


 


“Applicable Laws”:  As defined in Section 10.03(a).


 


“Appraised Value”:  As defined in the Property Management
Agreement.


 


“Authenticating Agent”:  As defined in Section 2.02(b).


 


“Authorized Officer”:  With respect to each Issuer, any person who
is authorized to act for such Issuer and who is identified on the list
delivered by such Issuer to the Indenture Trustee on each Series Closing
Date (as such list may be modified or supplemented from time to time
thereafter). With respect to an Insurer, the president, any vice president, or
any other officer customarily performing functions similar to those performed
by the persons who at the time shall be such officers.


 


“Available Amount”:  As defined in the Property Management
Agreement.


 


“Average Cashflow Coverage Ratio”:  As defined in the Property Management
Agreement.


 


“Back-Up Fee”: As defined in the
Property Management Agreement.


 


“Back-Up Manager”:  Midland Loan Services, Inc., a Delaware
corporation, or its successor in interest.


 


3

















 


“Book-Entry Custodian”:  Initially, the Indenture Trustee and
thereafter, such other bank or trust company as the Indenture Trustee shall
appoint pursuant to Section 2.06(a).


 


“Book-Entry Note”:  Any Note registered in the name of the
Depository or its nominee.


 


“Borrower”:  As defined in the Property Management
Agreement.


 


“Business Day”:  Any day other than a Saturday, a Sunday or a
day on which banking institutions are authorized or obligated by law or
executive order to remain closed in New York, New York, Scottsdale, Arizona, or
any other city in which the principal office of the Issuer, the Primary Servicing
Office of the Property Manager or the Special Servicer or the Indenture Trustee’s
Office is located.


 


“Business Sector”:  With respect to any Industry Group, any of
the following applicable business sectors, including, but not limited to the
following:  Specialty Retailers, Drug
Stores, Movie Theaters, Education Facilities, Restaurants, Interstate Travel
Plazas, Automotive Dealerships and Retailers, Gas/Propane Facilities,
Plumbing/Electrical Facilities, Poultry Distribution Facilities, and Banking
Facilities. Additional Business Sectors may be indicated in any of the Series Supplements.


 


“Cash”:  Coin or currency of the United States or
immediately available federal funds, including such funds delivered by wire
transfer.


 


“Cashflow Coverage Ratio”:  As defined in the Property Management
Agreement.


 


“Cashflow Coverage Reserve Account”:  The segregated account established in the
name of the Indenture Trustee pursuant to Section 2.18 hereof.


 


“Cashflow Shortfall Amount”:  As defined in Section 2.18(d).


 


“Class”:  Collectively, all of the Notes bearing the
same Series, alphabetical and, if applicable, numerical class designations.


 


“Class Principal Balance”:  With respect to any Class of Notes and
any date of determination, the amount stated for such Class on the face of
each such Note as “Note Principal Balance of the Class     
Notes as of the Series Closing Date”, as such amount is reduced by any
payments of principal actually made on the Notes of such Class prior to
such date of determination.


 


“Code”:  The Internal Revenue Code of 1986, as
amended.


 


“Collateral”:  As defined in the Granting Clause hereto.


 


“Collateral Agency Agreement”:  Collectively, the Collateral Agency
Agreement, dated as of April 27, 2005, between the Collateral Agent and
Spirit Finance, as amended, the Collateral Agency Agreement, dated as of November 7,
2005, among the


 


4

















 


Collateral Agent, Credit
Suisse, New York Branch and Spirit Finance, as amended and any other Collateral
Agency Agreement as set forth in a Series Supplement.


 


“Collateral Agent”:  Citibank, N.A., a national banking
association, in its capacity as collateral agent under this Indenture and the
Collateral Agency Agreement, or its successor in interest, or any successor
collateral agent appointed as provided in this Indenture and the Collateral
Agency Agreement.


 


“Collateral Defect”:  As defined in the Property Management
Agreement.


 


“Collateral Pool”:  As defined in the Granting Clause hereto.


 


“Collateral Pool Expenses”:  As defined in Section 2.11(b).


 


“Collateral Value”:  With respect to each Mortgaged Property
included in the Collateral Pool, the lesser of (a) the related Appraised
Value as of the applicable Series Closing Date or Transfer Date and (b) the
related Investment Amount. With respect to each Mortgage Loan, the outstanding
principal balance thereof.


 


“Collection Account”:  As defined in the Property Management
Agreement.


 


“Collection Period”:  As defined in the Property Management
Agreement.


 


“Condemnation Proceeds”: As defined
in the Property Management Agreement.


 


“Control Person”:  With respect to any Person, any other Person
that constitutes a “controlling person” within the meaning of Section 15
of the 1933 Act.


 


“Controlling Party”:  With respect to any Series, as defined in the
applicable Series Supplement


 


“Corrected Lease”:  As defined in the Property Management
Agreement.


 


“Corrected Mortgage Loan”:  As defined in the Property Management
Agreement.


 


“Current Cashflow Coverage Ratio”:  With respect to any date of determination, the
Cashflow Coverage Ratio for the Determination Date for the Collection Period
most recently ended.


 


“Custodian”:  LaSalle Bank National Association, a national
banking association or a custodian on its behalf, or its successor in interest.


 


“Deficiency”:  As defined in Section 2.15.


 


“Deficiency Amount”:  As defined in the applicable Insurance
Policy.


 


“Definitive Note”:  As defined in Section 2.06(a).


 


5

















 


“Depository”:  The Depository Trust Company or any successor
depository hereafter named as contemplated by Section 2.06. The
nominee of the initial Depository, for purposes of registering such Notes that
are Book-Entry Notes, is Cede & Co. The Depository shall at all times
be a “clearing corporation” as defined in Section 8-102(4) of the Uniform Commercial
Code of the State of New York and a “clearing agency” registered pursuant to
the provisions of Section 17A of the Securities Exchange Act of 1934, as
amended.


 


“Depository Participant”:  A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.


 


“Determination Date”:  As to any Payment Date, the 7th
day of the month in which such Payment Date occurs or, if such 7th
day is not a Business Day, the Business Day immediately succeeding such 7th
day.


 


“Early Amortization Event”:  An Early Amortization Event will occur as of
any date (A) if the then current Average Cashflow Coverage Ratio is less
than 1.10; provided, however, that following the occurrence of
any such Early Amortization Event, if during any period of determination, the
Cashflow Coverage Ratio exceeds 1.10 for such period for three consecutive
months, such Early Amortization Event will be deemed to have been cured and no
longer continuing, (B) if an Event of Default, after giving effect to any
grace period, shall have occurred and shall not have been cured or waived in
accordance with the terms hereof or (C) upon the occurrence of any other
event specified as an Early Amortization Event in a Series Supplement.


 


“Eligible Account”:  Any of (i) a segregated account
maintained with a federal- or state-chartered depository institution or trust
company, the long-term deposit or long-term unsecured debt obligations of which
(or of such institution’s parent holding company) are rated “A2” or better by
Moody’s, “A” or better by each other Rating Agency other than S&P, and “AA-”
or better by S&P, if the deposits are to be held in the account for more
than 30 days, or the short-term deposit or short-term unsecured debt
obligations of which (or of such institution’s parent holding company) are
rated “P-1” by Moody’s, “F-1” by Fitch and “A-1” by S&P if the deposits are
to be held in the account for 30 days or less, in any event at any time funds
are on deposit therein, (ii) a segregated trust account maintained with a
federal- or state-chartered depository institution or trust company acting in
its fiduciary capacity, which, in the case of a state-chartered depository
institution or trust company is subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 C.F.R. § 9.10(b), and
which, in either case, has a combined capital and surplus of at least
$50,000,000 and is subject to supervision or examination by federal or state
authority, (iii) an account or accounts maintained with PNC Bank (A) so
long as PNC Bank’s long-term unsecured debt rating shall be at least (x) “A1”
by Moody’s and “A” by S&P (if the deposits are to be held in the account
for more than 30 days) and (y) “A” by Fitch, or (B) so long as PNC’s
short-term deposit or short-term unsecured debt rating shall be at least (x) “P-1”
by Moody’s and “A-1” by S&P (if the deposits are to be held in the account
for 30 days or less) and (y) “F1” by Fitch, or (iv) any other account that
is acceptable to the Rating Agencies and each Insurer (as evidenced by written
confirmation from such Rating Agencies and each Insurer). Eligible Accounts may bear
interest.


 


6

















 


“Environmental Indemnity Agreement”:  Each Environmental Indemnity Agreement, dated
as of the applicable Series Closing Date, executed by the applicable Issuer
in favor of the Indenture Trustee and the other beneficiaries thereunder.


 


“Environmental Law”:  As defined in Section 10.07.


 


“Environmental Lien”:  As defined in Section 10.07.


 


“Environmental Release”:  As defined in Section 10.07.


 


“Equipment Loan”:  Any commercial
equipment loan secured by equipment used in the operation of a Mortgaged
Property and listed on the Mortgage Loan Schedule.


 


“ERISA”:  The Employee Retirement Income Security Act
of 1974, as amended.


 


“Event of Default”:  As defined in Section 4.01.


 


“Excess Cashflow”: With respect
to any Payment Date, consists of Percentage Rent (other than with respect to
certain Mortgaged Properties identified as “Percentage Rent Only” on the
Mortgaged Property Schedule that receive Percentage Rent in lieu of fixed
or “base” rent) and Excess Insurance Proceeds received during the related
Collection Period.


 


“Excess Insurance Proceeds”:  As of any Determination Date, the excess, if
any, of (a) the amounts released by casualty insurance policies related to
the Mortgaged Properties during the preceding Collection Period minus (b) the
sum of (i) the amount necessary to reimburse the Property Manager or
Back-Up Manager for any Property Protection Advances made with respect to
casualties relating to such casualty insurance policies and (ii) the
repair or replacement costs (as determined by the Property Manager) associated
with such casualties on the Mortgaged Properties, as applicable.


 


“Extraordinary Expense Cap”:  An amount equal to the greater of $250,000
per Series and 0.07% of the Aggregate Series Principal Balance (as of
the most recent Series Closing Date and each anniversary thereof) per year
and 1/12 of such amount per month (such amount to be cumulative for each month
in a calendar year if not used, although any such cumulative amount will not be
carried forward into the next calendar year).


 


“Extraordinary Expenses”:  Unanticipated expenses required to be borne
by the applicable Issuers, that consist of, among other things: (i) amounts
incurred in connection with the transfer of the Loan Files and Lease Files and
other administrative expenses related to the sale or transfer of the related Mortgage
Loans and Mortgaged Properties by such Issuers; (ii) payments to the
Property Manager, the Special Servicer, any applicable Hedge Counterparty, any Issuers,
the Indenture Trustee or the Collateral Agent or any of their respective
directors, officers, employees, agents and Control Persons of amounts for
certain expenses and liabilities as specified in this Indenture (including Section 5.04(a)(2)),
the Notes, the Property Management Agreement, the applicable LLC Agreements or
any other agreement related thereto; (iii) payments for the advice of
counsel and the cost of certain Opinions of Counsel; (iv) costs and
expenses incurred in connection with environmental remediation with respect to
any Mortgaged Property; and (v) certain indemnities that Spirit Finance is
obligated to pay but fails to pay under


 


7

















 


the applicable Environmental Indemnity
Agreement and the applicable Performance Undertaking, as the case may be.


 


“FDIC”:  Federal Deposit Insurance Corporation or any
successor.


 


“Final Payment Date”:  With respect to any Class of Notes, the
Payment Date on which the final payment on such Notes is made hereunder by
reason of all principal, interest and other amounts due and payable on such
Notes having been paid.


 


“Fitch”:  Fitch, Inc.


 


“Foreclosure Proceeding”:  Any proceeding, non-judicial sale or power of
sale or other proceeding (judicial or non-judicial) for the foreclosure, sale
or assignment of any Mortgage Loan, Mortgaged Property or Lease or any other
Collateral under any Mortgage.


 


“GAAP”:  Such accounting
principles as are generally accepted in the United States.


 


“Grant”:  To mortgage,
pledge, bargain, sell, warrant, alienate, demise, convey, assign, transfer,
create and grant a security interest in and right of set-off against, deposit,
set over and confirm. A Grant of Collateral shall include all rights, powers
and options (but none of the obligations) of the granting party thereunder,
including, without limitation, the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in
respect of such Collateral and all other moneys and proceeds 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 which the granting party is or may be entitled to do
or receive thereunder or with respect thereto.


 


“Guaranty”:  As defined in the Property Management
Agreement.


 


“Hazardous Materials”:  As defined in Section 10.07.


 


“Hedge Agreement”:  With respect to the Class of any Series,
as defined in the applicable Series Supplement.


 


“Hedge Counterparty”:  With respect to the Class of any Series,
as defined in the applicable Series Supplement.


 


“Hedge Counterparty Account”:  With respect to the Class of any Series,
as defined in the applicable Series Supplement.


 


“Indenture”:  This instrument as originally executed or as
it may be supplemented or amended from time to time by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, with respect to any Series, the related Series Supplement.


 


8

















 


“Indenture Trustee”:  Citibank, N.A., a national banking
association, in its capacity as trustee under this Indenture, or its successor
in interest, or any successor trustee appointed as provided in this Indenture.


 


“Indenture Trustee Fee”:  With respect to any Series, as defined in the
applicable Series Supplement.


 


“Indenture Trustee’s Office”:
 The corporate trust office of the Indenture Trustee at which at any
particular time its mortgage-backed securities trust business with respect to
this Indenture shall be administered, which office at the date of the execution
of this Indenture is located at (i) solely for purposes of the transfer,
surrender or exchange of Notes, 111 Wall Street, New York, New York 10005,
Attention: 15th Floor Window and (ii) for all other purposes,
388 Greenwich Street, 14th Floor, New York, New York 10013,
Attention: Agency and Trust-Spirit Master Funding, or at such other address as
the Indenture Trustee or Note Registrar may designate from time to time.


 


“Independent”:  When used with respect to any specified
Person, any such Person who (i) is in fact independent of the Indenture
Trustee, the Issuers and any and all Affiliates thereof, (ii) does not
have any direct financial interest in or any material indirect financial
interest in any of the Indenture Trustee, the Issuers or any Affiliate thereof,
and (iii) is not connected with the Indenture Trustee, the Issuers or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Indenture Trustee or the
Issuers or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Indenture
Trustee, any Issuer or any Affiliate thereof, as the case may be. The
Indenture Trustee may rely, in the performance of any duty hereunder, upon
the statement of any Person contained in any certificate or opinion that such
Person is Independent according to this definition.


 


“Initial Closing Date”: The Series Closing
Date of the first Series of Notes issued hereunder.


 


“Initial Purchaser”: With
respect to a Series of Notes, any Person named as such in the applicable Series Supplement
or any successor thereto.


 


“Insurance Agreement”:  With respect to any Series of Notes, as
defined in the applicable Series Supplement.


 


“Insurance Policy”:  With respect to any Series of Notes, as
defined in the applicable Series Supplement.


 


“Insurance Policy Proceeds Account”:  With respect to any Series of Notes, the
segregated account established in the name of the Indenture Trustee pursuant to
Section 2.15(b), if any, as further provided in the applicable Series Supplement.


 


“Insured Obligations”:  With respect to any Series of Notes, as
defined in the applicable Series Supplement.


 


9

















 


“Insurer”: With respect to any Series of
Notes, as defined in the applicable Series Supplement.


 


“Insurer Accrued Liabilities”:  With respect to any Payment Date and any
Series, all amounts paid by the related Insurer under the applicable Insurance
Policy and not yet reimbursed to such Insurer.


 


“Insurer Default”:  With respect to any Series of Notes, as
defined in the applicable Series Supplement.


 


“Insurer Premium”:  With respect to any Payment Date and any Series of
Notes, as defined in the applicable Series Supplement.


 


“Interested Person”:  Any
Issuer, any Issuer Member, the Property Manager, the Special Servicer, any
Insurer, any Holder of Notes or an Affiliate of any such Person.


 


“Investment Amount”:  With respect to each Mortgaged Property
included in the Collateral Pool, the amount (including all related closing
costs and expenses) paid by the applicable Issuer to purchase such Mortgaged
Property from the related Originator or third party, as applicable.


 


“Issuer”:  Each of Spirit
Master Funding, LLC, a Delaware limited liability company, or its successor in
interest, and any other party designated as an “Issuer” in any Series Supplement,
or its successors in interest, as the context may require. References to a
“related” or “applicable” Issuer shall refer to the Issuer that owns the
Collateral or has issued or co-issued the Notes being addressed.


 


“Issuer Advances”: As defined in Section 2.11(b).


 


“Issuer Expense Cap”:  An amount equal to 0.05% of the Aggregate Series Principal
Balance (as of the most recent Series Closing Date and each anniversary
thereof) per year and 1/12 of such amount per month; provided, that, upon
written confirmation from the Insurers and written confirmation from each
Rating Agency that such action will not result in the downgrade, qualification
or withdrawal of its then current ratings of the Notes, the Issuer Expense Cap
will be such higher amount as proposed by the Issuers.


 


“Issuer Expenses”:  With respect to the Collateral Pool, the
costs and expenses relating to the Collateral Pool for (i) general
liability insurance policies maintained by the applicable Issuers as owners of
the Mortgaged Properties, or such Issuers’ respective proportionate shares of
premiums with respect to general liability insurance policies maintained by
Affiliates of such Issuers, (ii) casualty insurance policies maintained by
the applicable Issuers, or such Issuers’ respective proportionate shares of
premiums with respect to casualty insurance policies maintained by Affiliates
of such Issuers, to insure casualties not otherwise insured by any related
Tenant due to a default by such Tenant under the insurance covenants of its
Lease or because any related Tenant permitted to self-insure fails to pay for
casualty losses, and (iii) certain state franchise taxes prohibited by law
from being passed through by any of the Issuers as lessor to a Tenant.


 


10

















 


“Issuer Order”:  A written
order signed in the name of an Issuer by a Responsible Officer of such Issuer.


 


“Issuer Request”:  A
written request signed in the name of an Issuer by a Responsible Officer of
such Issuer.


 


“Issuer’s Office”:  The principal office of Spirit Master
Funding, LLC, which office at the Initial Closing Date is located at 14631 N.
Scottsdale Road, Suite 200, Scottsdale, Arizona 85255, facsimile number:
480-606-0820, Attention: Catherine Long, Chief Financial Officer. The principal
office of any Issuer (other than Spirit Master Funding, LLC) is located at the
address provided in the related LLC Agreement.


 


“Lease”:  As defined in the Property Management
Agreement.


 


“Lease Due Date”:  With respect to a Lease, the day of each
calendar month on which the Monthly Lease Payment with respect thereto is due.


 


“Lease File”:  As defined in the Property Management
Agreement.


 


“Legal Final Payment Date”:  With respect to any Series of Notes, the
date by which the applicable Issuers shall be required to pay the related
Noteholders the entire outstanding principal balance and any accrued interest
on each related Class, as specified in the applicable Series Supplement.


 


“Letter of Representations”:  With respect to any Series of Notes, the
Letter of Representations, dated the applicable Series Closing Date, among
the Depository, the Indenture Trustee and the applicable Issuers.


 


“Liquidation Fee”:  As defined in the Property Management
Agreement.


 


“Liquidation Proceeds”: As defined
in the Property Management Agreement.


 


“LLC Agreement”:  As defined in the Property Management
Agreement.


 


“LLC Interests”:  As defined in the Property Management
Agreement.


 


“Loan Due Date”:  With respect to a Mortgage Loan, the day of
each calendar month on which the Monthly Loan Payment with respect thereto is
due.


 


“Loan File”:  As defined in the Property Management
Agreement.


 


“Lockbox Account”:  As defined in the Property Management
Agreement.


 


“Make Whole Payment”:  With respect to any Payment Date on which a
Voluntary Prepayment is made and an Early Amortization Event has not occurred
and is not continuing, the payment due to each Class of Notes in an amount
(as calculated two Business Days prior to such Payment Date) equal to:  (A) using the Reinvestment Yield, the
sum of the present values of the scheduled payments of principal and interest
remaining until such Class of


 


11

















 


Notes is scheduled to be repaid in full
(calculated prior to the application of the Voluntary Prepayment), minus (B)(i) using
the Reinvestment Yield, the sum of the present values of the scheduled payments
of principal and interest remaining until such Class of Notes is scheduled
to be repaid in full (calculated after application of the Voluntary Repayment)
plus (ii) the amount of the Voluntary Prepayment.


 


“Maturity”:  With respect to any Note, the date as of
which the principal of and interest on such Note has become due and payable as
herein provided, whether on the Legal Final Payment Date, by acceleration or
otherwise.


 


“Maximum Property Concentrations”:  With respect to any Series of Notes, as defined
in the most recent Series Supplement.


 


“Monthly Lease Payment”:  As defined in the Property Management
Agreement.


 


“Monthly Loan Payment”:  As defined in the Property Management
Agreement.


 


“Moody’s”:  Moody’s Investors Service, Inc.


 


“Mortgage”:  With respect to any Mortgaged Property, a
mortgage (or deed of trust or deed to secure debt), assignment of leases and
rents, security agreement and fixture filing or similar document executed by
the applicable Issuer or the related Borrower, as applicable, pursuant to which
such Issuer or Borrower grants a lien on its interest in such Mortgaged
Property in favor of the Collateral Agent or the initial lender of the related
Mortgage Loan, as applicable.


 


“Mortgage Loan”:  As defined in the Property Management
Agreement.


 


“Mortgage Loan Schedule”:  As defined in the Property Management
Agreement.


 


“Mortgaged Property”:  As defined in the Property Management
Agreement.


 


“Mortgaged Property Schedule”:  As defined in the Property Management
Agreement.


 


“New Issuance”: As defined in Section 2.04(c).


 


“Nonrecoverable Property Protection Advance”:  As defined in the Property Management
Agreement.


 


“Note”:  Any of the Issuers’ Net Lease Mortgage Notes,
executed, authenticated and delivered hereunder and under the related Series Supplements,
substantially in the forms attached as Exhibit A hereto.


 


“Note Interest”:  On any Payment Date for any Class of
Notes, the interest accrued during the related Accrual Period at the Note Rate
for such Class, applied to the Class


 


12

















 


Principal Balance of such Class before
giving effect to any payments of principal on such Payment Date. The Note
Interest with respect to each Class of Notes will be calculated on a
30/360 basis or actual/360 basis, as indicated in the applicable Series Supplement.


 


“Note Owner”:  With respect to a Book-Entry Note, the Person
who is the beneficial owner of such Note as reflected on the books of the
Depository, a Depository Participant or an indirect participating brokerage
firm for which a Depository Participant acts as agent.


 


“Note Principal Balance”:  With respect to any Note and any date of
determination, the amount stated for such Note as specified on the first page thereof,
reduced by any payments of principal actually made on such Note prior to such
date of determination.


 


“Note Rate”:  With respect to any Class of Notes, the
note interest rate specified in the applicable Series Supplement.


 


“Note Register”:  As defined in Section 2.05(a).


 


“Note Registrar”:  Initially, the Indenture Trustee and
thereafter, such other bank or trust company as the Indenture Trustee shall
appoint pursuant to Section 2.05(a).


 


“Noteholder” or “Holder”:  With respect to any Note, the Person in whose
name such Note is registered on the Note Register maintained pursuant to Section 2.05.
All references herein to “Noteholders” shall reflect the rights of Note Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a “Noteholder”
or “Holder” only the Person in whose name a Note is registered in the Note
Register as of the related Record Date.


 


“Notice of Default”:  As defined in Section 5.02.


 


“Officer’s Certificate”:  A certificate signed by any Responsible
Officer of an Issuer or of the Indenture Trustee, as the case may be.


 


“Opinion of Counsel”:  A written opinion of counsel (which shall be
rendered by counsel that is Independent of the Issuers, the Issuer Members and
the Indenture Trustee) in form and substance reasonably acceptable to and
delivered to the addressees thereof.


 


“Originators”:  As defined in the Property Management
Agreement.


 


“OTS”:  Office of Thrift Supervision or any successor
thereto.


 


“Outstanding”:  When used with respect to Notes, means, as of
any date of determination, any Note theretofore authenticated and delivered
under this Indenture, except:


 


(i)                                     Notes
theretofore canceled by the Note Registrar or delivered to the Note Registrar
for cancellation (other than any Note as to which any amount that has become
due and payable in respect thereof has not been paid in full); and


 


13

















 


(ii)                                  Notes
in exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect of
which there shall have been presented to the Note Registrar proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the applicable Issuers;


 


provided, however, that in determining
whether the Holders of the requisite amount or percentage have given any
request, demand, authorization, vote, direction, notice, consent or waiver
hereunder, Notes owned by an Interested Person shall be disregarded and deemed
not to be Outstanding (unless any such Person or Persons owns all the Notes),
except that, in determining whether the Indenture Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which the Note Registrar knows to be so owned
shall be so disregarded. Notes owned by an Interested Person which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Note Registrar in its sole discretion
the pledgee’s right to act with respect to such Notes and that the pledgee is
not an Interested Person.


 


“Ownership Interest”:  As
to any Note, any ownership or security interest in such Note as held by the
Holder thereof and any other interest therein, whether direct or indirect,
legal or beneficial, as owner or as pledgee.


 


“Payment Account”:  The segregated account established in the
name of the Indenture Trustee pursuant to Section 2.10(a).


 


“Payment Date”:  The 20th
day of each calendar month, or, if such 20th day is not a Business Day, the
next succeeding Business Day, commencing with respect to each Series on
the date specified in the applicable Series Supplement.


 


“Payoff Amount”:  As defined in the Property Management
Agreement.


 


“Percentage Interest”:  With respect to any Note, the fraction,
expressed as a percentage, the numerator of which is the initial Note Principal
Balance of such Note on the applicable Series Closing Date as set forth on
the face thereof, and the denominator of which is the initial Class Principal
Balance of the related Class of Notes on the applicable Series Closing
Date.


 


“Percentage Rent”:  As defined in the Property Management
Agreement.


 


“Performance Undertaking”:  Each Performance Undertaking, dated as of the
applicable Series Closing Date, between Spirit Finance and the applicable Issuer
and executed by Spirit Finance in favor of the such Issuer and its assignees,
including the Indenture Trustee and the Collateral Agent.


 


“Permanent Regulation S Global Note”:  As defined in Section 2.01(c).


 


“Permitted Exceptions”:  With respect to any Mortgaged Property and
the related Mortgage Loans and/or Leases, as applicable, (i) liens for
real estate taxes and special assessments not yet due and payable or due but
not yet delinquent, (ii) covenants, conditions and


 


14

















 


restrictions, rights-of-way,
easements and other matters of public record, such exceptions being of a type
or nature that are acceptable to mortgage lending institutions generally, (iii) Third
Party Purchase Options and (iv) other matters to which like properties are
commonly subject, which matters referred to in clauses (i),  (ii),
(iii) and (iv) do not, individually or in the
aggregate, materially interfere with the value of the Mortgaged Property, or do
not materially interfere or restrict the current use or operation of the
Mortgaged Property relating to the Mortgage Loan or do not materially interfere
with the security intended to be provided by the Mortgage, the current use or
operation of the Mortgaged Property or the current ability of the Mortgaged
Property to generate net operating income sufficient to service the Mortgage
Loan.


 


“Person”:  Any individual, corporation, partnership,
limited liability company, joint venture, joint-stock company, estate, trust, association,
unincorporated organization, or any federal, state, county or municipal
government or any political subdivision thereof.


 


“Plan”:  Any one of: (i)(A) an “employee benefit
plan”, as defined in Section 3(3) of ERISA that is subject to the
provisions of Title I of ERISA, or (B) a “plan”, as defined in Section 4975
of the Code, that is subject to the provisions of Section 4975 of the
Code; or (ii) an entity whose underlying assets include assets of any such
employee benefit plan or plan by reason of an investment in an entity by such
employee benefit plan or plan.


 


“Principal Terms”: With respect to
any Series: (i) the name or designation of such Series; (ii) the
initial principal amount of the Notes to be issued for such Series; (iii) the
interest rate to be paid with respect to such Series (or method for the
determination thereof); (iv) the Mortgage Loans and Mortgaged Properties
pledged to the Indenture Trustee in connection with such Series; (v) the
designation of any Series Accounts and the terms governing the operation
of any such Series Accounts; (vi) the terms of any form of Series Enhancement
with respect to such Series; (vii) the Legal Final Payment Date for the
Series; and (viii) such other terms and provisions as may be
specified in the applicable Series Supplement with respect to the related
Notes and the Collateral Pool.


 


“Proceeding”:  Any suit in
equity, action at law or other judicial or administrative proceeding.


 


“Property Insurance
Proceeds”: As defined in the Property Management Agreement.


 


“Property Management Agreement”:  The Amended and Restated Property Management
and Servicing Agreement, dated as of March 17, 2006, among the Issuers,
Spirit Finance and the Back-Up Manager, as the same may be amended.


 


“Property Management Fee”:  As defined in the Property Management
Agreement.


 


“Property Manager”:  As defined in the Property Management
Agreement.


 


“Property Manager Additional Servicing
Compensation”:  As defined
in the Property Management Agreement.


 


15

















 


“Property Protection Advances”:  As defined in the Property Management
Agreement.


 


“Purchase and Sale Agreements”:  Any Purchase and Sale Agreement or Loan
Purchase Agreement between an Originator and an Issuer.


 


“Purchase Option Deficiency”:  As defined in the Property Management
Agreement.


 


“Purchase Premium”:  As defined in the Property Management
Agreement.


 


“Qualified Institutional Buyer”:  A “qualified institutional buyer” within the
meaning of Rule 144A.


 


“Qualified Substitute Mortgage Loan”:
As defined in the Property Management Agreement.


 


“Qualified Substitute Mortgaged Property”:  As defined in the Property Management
Agreement.


 


“Rated Final Payment Date”:  With respect to any Series of Notes, the
date specified in the applicable Series Supplement.


 


“Rating Agency”:  With respect to any Series of Notes,
each nationally recognized statistical rating organization that has been
requested by the applicable Issuers to assign a rating to a Class of such
Series.


 


“Rating Condition”:  With respect to any action or event or
proposed action or event, will be satisfied upon the provision by each Rating
Agency then rating any existing Series of Notes of confirmation in writing
that such action or event or proposed action or event will not result in the
downgrade, qualification or withdrawal of such Rating Agency’s then current
ratings of such Notes (without regard to any applicable Insurance Policy).


 


“Record Date”:  As to any
Payment Date with respect to Book-Entry Notes, the Business Day immediately
preceding such Payment Date. As to any Payment Date with respect to Definitive
Notes, the last Business Day of the prior calendar month or, in the case of the
initial Payment Date for any Series, the applicable Series Closing Date.


 


“Regulated Substance”:  As defined in Section 10.07.


 


“Regulation S”:  Regulation S promulgated under the 1933 Act.


 


“Regulation S Global Note”:  As defined in Section 2.01(c).


 


“Reinvestment Yield”:  As defined in the most recent Series Supplement.


 


“Release Account”:  As defined in the Property Management
Agreement.


 


16

















 


“Requisite Global Majority”:  With respect to any action proposed to be
taken pursuant to the terms of this Indenture, if (a) Controlling Parties
representing more than 50% of the Aggregate Series Principal Balance shall
approve or direct such proposed action and (b) unless Controlling Parties
representing more than 66 2/3% of the Aggregate Series Principal Balance
approve or direct such proposed action, the Insurers (as to which no Insurer
Default is continuing) shall approve or direct such proposed action.


 


“Resolution”:  A copy of a
resolution of the board of directors of an Issuer certified by an Authorized
Officer of such Issuer to have been duly adopted by such Issuer and to be in
full force and effect on the date of such certification.


 


“Responsible Officer”:  When used with respect to any Issuer Member or
the Indenture Trustee, any officer of such Issuer Member or the Indenture
Trustee, as the case may be (and, in the case of the Indenture Trustee,
assigned to its Corporate Trust Services Group and customarily performing
functions with respect to corporate trust matters), and, 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 the particular subject, in
each case having direct responsibility for the administration of this Indenture.


 


“Restricted Global Note”:  As defined in Section 2.01(b).


 


“Restricted Note”:  A Restricted Global Note or a Definitive
Note.


 


“Restricted Period”:  With respect to the Notes of any Series, the
period of time to and including 40 days after the later of (a) the date
upon which such Notes were first offered to any Persons (other than
distributors) in reliance upon Regulation S and (b) the applicable Series Closing
Date.


 


“Rule 144A”:  Rule 144A
promulgated under the 1933 Act.


 


“S&P”:  Standard & Poor’s Ratings Services,
a division of The McGraw-Hill Companies, Inc.


 


“Scheduled Principal Payment”:  With respect to each Payment Date and each Series of
Notes, an amount equal to the sum of (a) any unpaid Scheduled Principal
Payment or portion thereof for such Series from any prior Payment Date
plus (b) the product of (i) (A) the related Scheduled Series Balance
for the prior Payment Date minus (B) the related Scheduled Series Balance
for the current Payment Date multiplied by (ii) a fraction (A) the
numerator of which is equal to the Aggregate Note Principal Balance of such Series immediately
prior to such Payment Date, minus the amounts specified in clause (a) of
this definition and (B) the denominator of which is the related Scheduled Series Balance
for the prior Payment Date.


 


“Scheduled Series Balance”:  With respect to any Payment Date and any Series of
Notes, as defined in the applicable Series Supplement.


 


“SEC”:  The Securities and Exchange Commission.


 


“Series”:
Any series of Notes issued pursuant to this Indenture.


 


17

















 


“Series Account”:
Any account described in a related Series Supplement as established in the
name of the Indenture Trustee for the benefit of the related Noteholders.


 


“Series Available
Amount”:  As defined in Section 2.11(b).


 


“Series Closing Date”:
With respect to any Series, the closing date specified in the applicable Series Supplement.


 


“Series Enhancement”:
The rights and benefits provided to the applicable Issuers or the Noteholders
of any Series or Class pursuant to any interest rate swap agreement,
interest rate cap agreement, reserve account, spread account, guaranteed rate
agreement, letter of credit, surety bond, financial guaranty insurance,
interest rate protection agreement or other similar agreement. Series Enhancement
shall also refer to any agreements, instruments or documents governing the
terms of the enhancements mentioned in the previous sentence or under which
they are issued, where the context makes sense. The subordination of any Class to
another Class shall be deemed to be a Series Enhancement.


 


“Series Enhancer”:
The Person or Persons providing any Series Enhancement, other than (except
to the extent otherwise provided with respect to any Series in the related
Series Supplement) the Noteholders of any Series or Class which
is subordinated to another Series or Class.


 


“Series Note”:
Any one of the Notes with the same Series designation, executed by the applicable
Issuers and authenticated by or on behalf of the Indenture Trustee.


 


“Series Supplement”: With
respect to any Series, a supplement to this Indenture, executed and delivered
in connection with the original issuance of the Notes of such Series under
Section 2.04 hereof, including all amendments thereof and
supplements thereto.


 


“Series Transaction Documents”:
With respect to any Series of Notes, any and all of the related Series Supplement,
any supplements or amendments to the Transaction Documents, documents related
to each Series Enhancement, if any, and any and all other agreements,
documents and instruments executed and delivered by or on behalf or in support
of the applicable Issuers with respect to the issuance and sale of such Series of
Notes, as the same may from time to time be amended, modified,
supplemented or renewed.


 


“Servicing Standard”:  As defined in the Property Management
Agreement.


 


“Special Servicer”:  As defined
in the Property Management Agreement.


 


“Special Servicer Additional Servicing
Compensation”:  As defined
in the Property Management Agreement.


 


“Special Servicing Fee”:  As defined in the Property Management
Agreement.


 


“Specially Serviced Asset”:  As defined in the Property Management Agreement.


 


18

















 


“Specially Serviced Lease”:  As defined in the Property Management
Agreement.


 


“Specially Serviced
Mortgage Loan”:  As
defined in the Property Management Agreement.


 


“Spirit Finance”:  Spirit Finance Corporation, a Maryland
corporation, and its successors and assigns.


 


“Sub-Management Agreement”:  As defined in the Property Management
Agreement.


 


“Sub-Manager”:  As defined in the Property Management
Agreement.


 


“Successor Person”:  As defined in Section 9.08(a)(i).


 


“Sweep Period”:  Any period: (a) commencing on the
Determination Date, if any, on which the Current Cashflow Coverage Ratio is equal
to or between 1.25 and 1.10; and (b) continuing until the Current Cashflow
Coverage Ratio is greater than 1.25 for each of three consecutive Determination
Dates, at which time 50% of the funds on deposit in the Cashflow Coverage
Reserve Account will be released, and the remaining 50% of the funds on deposit
in the Cashflow Coverage Reserve Account will be released when the Current
Cashflow Coverage Ratio is greater than 1.25 for each of three additional
consecutive Determination Dates.


 


“Tax Opinion”:  An opinion of Independent counsel that a
contemplated action will not cause a U.S. federal income tax to be imposed on any
Issuer or any Person having an Ownership Interest in the Notes of any Series.


 


“Taxes”:  As defined in Section 9.03(a).


 


“Temporary Regulation S Global Note”:  As defined in Section 2.01(b).


 


“Tenant”:  With respect to each Lease, the tenant under
such Lease and any successor or assign thereof.


 


“Third Party Purchase Option”:
As defined in the Property Management Agreement. 


 


“Total Debt Service”:  With respect to any Determination Date, the
sum of (i) the Scheduled Principal Payment and Note Interest with respect
to all Classes of Notes (in each case, less any scheduled principal payment due
on the applicable Legal Final Payment Date), (ii) the aggregate Insurer
Premiums, (iii) the Property Management Fee, (iv) the Special
Servicing Fee, if any, (v) the Back-Up Fee, (vi) any net payment due
from the Issuers under any applicable Hedge Agreements for the related Payment
Date (other than termination payments due as a result of the default of any
Hedge Counterparty) and (vii) the Indenture Trustee Fee, each as accrued
during the Collection Period ending on such Determination Date.


 


19

















 


“Transaction Documents”:  This Indenture, the Property Management
Agreement, the Insurance Agreements, the Hedge Agreements, the Purchase and
Sale Agreements, the LLC Agreements and other organizational documents of the
Issuers, each Account Control Agreement, the Environmental Indemnity Agreements,
the Performance Undertakings and other Series Transaction Documents specified
in the related Series Supplement.


 


“Transfer”:  Any direct or indirect transfer, sale,
pledge, hypothecation or other form of assignment of any Ownership
Interest in a Note.


 


“Treasury Regulations”:
 Temporary, final or proposed regulations (to the extent that by reason of
their proposed effective date such proposed regulations would apply to the
Issuers) of the United States Department of the Treasury.


 


“Trustee Report”:  As defined
in Section 6.01(a).


 


“UCC”:  The Uniform Commercial
Code as in effect in any applicable jurisdiction.


 


“UCC Financing Statement”:
 A financing statement executed and in form sufficient for filing
pursuant to the UCC, as in effect in the relevant jurisdiction.


 


“Unscheduled Principal Payment”:  On any Payment Date, the sum of (a) the
Unscheduled Proceeds deposited into the Collection Account for such Payment
Date plus (b) any Purchase Option Deficiency from the related Collection
Period, together with any unpaid Purchase Option Deficiency from any prior
Payment Date.


 


“Unscheduled Proceeds”:  As defined in the Property Management
Agreement.


 


“U.S. Person”:  As defined in Regulation S.


 


“Voluntary Prepayment”:  Any voluntary redemption of any Class of
Notes, in whole or in part, in accordance with the procedures set forth in Section 7.01,
or any Unscheduled Principal Payment (as described in clause (a) of
the definition thereof) actually paid on the related Payment Date, other than
any portion thereof consisting of Property Insurance Proceeds, Condemnation
Proceeds and amounts received in respect of a Specially Serviced Asset or a
repurchase due to a Collateral Defect.


 


“Workout Fee”:  As defined in the Property Management
Agreement.


 


Section 1.02                            Rules of
Construction.


 


For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:


 


(1)                                  the
terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;


 


20

















 


(2)                                  all
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP, and, except as otherwise herein expressly
provided, the terms “generally accepted accounting principles” or “GAAP” with
respect to any computation required or permitted hereunder means such
accounting principles as are generally accepted in the United States;


 


(3)                                  the
word “including” shall be construed to be followed by the words “without
limitation”;


 


(4)                                  article and
section headings are for the convenience of the reader and shall not be
considered in interpreting this Indenture or the intent of the parties hereto;


 


(5)                                  the
definition of or any reference to any agreement, document or instrument herein
shall be construed as referring to such agreement, document or instrument as
from time to time amended, restated, supplemented or otherwise modified;


 


(6)                                  references
to any law, constitution, statute, treaty, regulation, rule or ordinance,
including any section or other part thereof, shall refer to such law,
constitution, statute, treaty, regulation, rule or ordinance as amended
from time to time, and shall include any successor thereto;


 


(7)                                  references
herein to any Person shall be construed to include such Person’s successors and
permitted assigns;


 


(8)                                  the
words “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular article, section or
other subdivision; and


 


(9)                                  the
pronouns used herein are used in the masculine and neuter genders but shall be
construed as feminine, masculine or neuter, as the context requires.


 


ARTICLE II



THE NOTES


 


Section 2.01                            Forms;
Denominations.


 


(a)                                  Each
Series of Notes shall be designated as the “[SPIRIT] Net-Lease Mortgage Notes”. The Notes may be issued
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 consistent herewith, as determined by the officers executing
such Notes, as evidenced by their execution thereof. 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 number of Series of Notes
which may be created by this Indenture is not limited.


 


21

















 


(b)                                 The
Notes of each Class in a Series, upon original issuance, shall be issued
as Book-Entry Notes in substantially the form of (i) a global note
without interest coupons representing the Notes of such Class sold to
Qualified Institutional Buyers, in substantially the form of Exhibit A-1
hereto, with such applicable legends as may be set forth in such exhibit (the
“Restricted Global Note”),
and (ii) a temporary global note without interest coupons representing the
Notes of such Class sold in “offshore transactions” (within the meaning of
Regulation S) to non-U.S. Persons in reliance on Regulation S, in substantially
the form of Exhibit A-2 hereto, with such applicable legends
as may be set forth in such exhibit (the “Temporary Regulation S Global Note”). Each
Class of Notes will be issuable only in denominations of not less than $50,000
and in integral multiples of $1 in excess thereof or as otherwise specified in
the applicable Series Supplement. Each Note will be registered on issuance
in the names of the initial Noteholders thereof.


 


(c)                                  After
such time as the Restricted Period shall have terminated, and subject to the
receipt by the Indenture Trustee of a certificate substantially in the form of
Exhibit D-4 hereto (subject to Section 12.03),
beneficial interests in a Temporary Regulation S Global Note may be
exchanged for an equal aggregate principal amount of beneficial interest in a
permanent global note without interest coupons (a “Permanent Regulation S Global Note”
and, together with the Temporary Regulation S Global Notes, the “Regulation S Global Notes”),
substantially in the form of Exhibit A-2 hereto, with such
applicable legends as may be set forth in such exhibit. Upon any exchange
of any beneficial interest in a Temporary Regulation S Global Note for a
beneficial interest in a Permanent Regulation S Global Note, (i) such
Temporary Regulation S Global Note shall be endorsed by the Indenture Trustee
to reflect the reduction of the principal amount evidenced thereby, whereupon
the principal amount of such Temporary Regulation S Global Note shall be
reduced for all purposes by the amount so exchanged and endorsed and (ii) such
Permanent Regulation S Global Note shall be endorsed by the Indenture Trustee
to reflect the increase of the principal amount evidenced thereby, whereupon
the principal amount of such Permanent Regulation S Global Note shall be
increased for all purposes by the amount so exchanged and endorsed.


 


(d)                                 Each
Restricted Global Note will be deposited with the Book-Entry Custodian and
registered in the name of the Depository or a nominee thereof. Each Regulation
S Global Note will be deposited with the Book-Entry Custodian and registered in
the name of the Depository or a nominee thereof for the accounts of Clearstream
Banking, société anonyme, or its successors,
and/or Euroclear Bank S.A./N.V., as operator of the Euroclear System, or its
successors.


 


Section 2.02                            Execution,
Authentication, Delivery and Dating.


 


(a)                                  The
Notes of each Series shall be executed by manual or facsimile signature on
behalf of the applicable Issuers by any Authorized Officers of such Issuers. Notes
bearing the manual or facsimile signatures of individuals who were at any time
the Authorized Officers of such applicable Issuers shall be entitled to all
benefits under this Indenture, subject to the following sentence,
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. No Note shall be entitled to any
benefit under this Indenture, or be valid for any purpose, however, unless
there appears on such Note a certificate of authentication


 


22

















 


substantially
in the form provided for herein, executed by the Indenture Trustee by
manual signature, and such certificate of authentication upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. All Notes shall be dated the respective dates
of their authentication.


 


(b)                                 At
the election of the Indenture Trustee, the Indenture Trustee may appoint
one or more agents (each, an “Authenticating
Agent”) with power to act on its behalf and subject to its
direction in the authentication of Notes in connection with transfers and
exchanges under Sections 2.05 and 2.07, as fully to all intents
and purposes as though each such Authenticating Agent had been expressly
authorized under those Sections to authenticate the Notes. For all purposes of
this Indenture, the authentication of Notes by an Authenticating Agent shall be
deemed to be the authentication of such Notes “by the Indenture Trustee.”  The Indenture Trustee shall be the initial
Authenticating Agent.


 


Any corporation, bank, trust company or association into which any
Authenticating Agent may be merged or converted or with which it may be
consolidated, or any corporation, bank, trust company or association resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation, bank, trust company or association
succeeding to the corporate trust business of any Authenticating Agent, shall
be the successor of such Authenticating Agent hereunder, without the execution
or filing of any further act on the part of the parties hereto or such
Authenticating Agent or such successor corporation, bank, trust company or
association.


 


Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Indenture Trustee and the Issuers. The Indenture
Trustee may at any time terminate the agency of any Authenticating Agent
by giving written notice of termination to such Authenticating Agent and the
Issuers. Upon receiving such notice of resignation or upon such a termination,
the Indenture Trustee may promptly appoint a successor Authenticating
Agent, and give written notice of such appointment to the Issuers and to the
Noteholders. Upon the resignation or termination of the Authenticating Agent
and prior to the appointment of a successor, the Indenture Trustee shall act as
Authenticating Agent.


 


Each Authenticating Agent shall be entitled to all limitations on
liability, rights of reimbursement and indemnities that the Indenture Trustee
is entitled to hereunder as if it were the Indenture Trustee.


 


(c)                                  The
Indenture Trustee shall upon Issuer Request authenticate and deliver Notes of
each Series for original issue in an aggregate amount equal to the initial
Class Principal Balance for each related Class as set forth in the
applicable Series Supplement.


 


Section 2.03                            Certification
of Receipt of the Collateral.


 


(a)                                  The
Indenture Trustee, by its execution and delivery of this Indenture,
acknowledges receipt by it of all assets Granted to it and included in the Collateral
Pool, in good faith and without notice of any adverse claim, and declares that
it holds and will hold such assets on behalf of the present and future
Noteholders of all Series and the Insurers.


 


23

















 


(b)                                 The
Indenture Trustee shall not be under any duty or obligation to inspect, review
or examine any of the documents, instruments, certificates or other papers
relating to the Mortgage Loans, Mortgaged Properties and Leases delivered to it
to determine that the same are valid, legal, effective, genuine, enforceable,
in recordable form, sufficient or appropriate for the represented purpose or
that they are other than what they purport to be on their face.


 


Section 2.04                            The
Notes Generally; New Issuances.


 


(a)                                  Each
Note of a particular Class shall rank pari passu with
each other Note of such Class and be equally and ratably secured by the
Collateral included in the Collateral Pool. All Notes of a particular Class shall
be substantially identical except as to denominations and as expressly
permitted in this Indenture.


 


(b)                                 This
Indenture, together with the related Mortgages, shall evidence a continuing
lien on and security interest in the Collateral Granted hereunder or
subsequently included in the Collateral Pool to secure the full payment of the
principal, interest and other amounts on the Notes of all Series and all
amounts owed to the Insurers, which shall in all respects be equally and
ratably secured hereby for payment as provided herein, and without preference,
priority or distinction on account of the actual time or times of the
authentication and delivery of the Notes of any Class with respect to any
Series.


 


(c)                                  Pursuant
to one or more Series Supplements, the applicable Issuers may, from time
to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one
or more new Series of Notes (a “New
Issuance”). The Notes of all outstanding Series shall be
equally and ratably entitled as provided herein to the benefits of this
Indenture without preference, priority or distinction on account of the actual
time of the authentication and delivery or Final Payment Date of any such Notes,
all in accordance with the terms and provisions of this Indenture and each Series Supplement.


 


On or before the Series Closing Date relating to any New Issuance,
the applicable Issuers shall execute and deliver a Series Supplement which
shall specify the Principal Terms with respect to such Series. The Indenture
Trustee shall execute the Series Supplement, the applicable Issuers shall
execute the Notes of such Series and the Notes of such Series shall
be delivered to the Indenture Trustee for authentication and delivery.


 


(d)                                 The
issuance of the first Series of Notes (which Series shall be issued
pursuant to a Series Supplement dated as of the Initial Closing Date)
shall be subject to the satisfaction of the following conditions:


 


(i)                                     receipt
by the Indenture Trustee of an Issuer Order authorizing the execution and
authentication of such Notes;


 


(ii)                                  receipt
by the Indenture Trustee of the Transaction Documents and the related Series Transaction
Documents duly executed and delivered by the parties thereto and being in full
force and effect, free of any breach or waiver;


 


(iii)                               all
Lease Files and Loan Files with respect to the Collateral Pool, as set forth
herein, shall have been delivered to the Indenture Trustee or the Custodian


 


24

















 


together with all UCC Financing
Statements, documents of similar import in other jurisdictions, and other
documents reasonably necessary to perfect the Indenture Trustee’s security
interest in such Collateral for the benefit of the Noteholders of all Series;


 


(iv)                              receipt
by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection
and priority of the Indenture Trustee’s security interest, (x) relating to the
consolidation of the assets and liabilities of the applicable Issuer in a
bankruptcy proceeding that involves the applicable Originators, such Issuer or
Spirit Finance, (y) relating to the “true sale” of the Mortgage Loans and the
Mortgaged Properties included in the Collateral Pool to the applicable Issuer as
of the Initial Closing Date and (z) relating to the characterization of the particular
Class of Notes indicated in the related Series Supplement as debt for
U.S. federal income tax purposes; and


 


(v)                                 receipt
by the Indenture Trustee of copies of letters signed by each applicable Rating
Agency confirming that each Class of Notes has been given the ratings as
indicated in the related Series Supplement.


 


(e)                                  The
issuance of the Notes of any Series other than pursuant to Section 2.04(d) above
shall be subject to the satisfaction of the following conditions:


 


(i)                                     receipt
by the Indenture Trustee of an Issuer Order authorizing the execution and
authentication of such Notes;


 


(ii)                                  if
required by the related Series Supplement, delivery to the Indenture
Trustee of the form of any Series Enhancement and all accompanying
agreements with respect thereto;


 


(iii)                               satisfaction
of the Rating Condition;


 


(iv)                              receipt
by the Indenture Trustee and each Insurer of an Opinion of Counsel to the
effect that, for U.S. federal income tax purposes, such New Issuance (x) will
not adversely affect the tax characterization of the Class of Notes of any
outstanding Series that was characterized as debt for U.S. federal income
tax purposes as of the related Series Closing Date, (y) will not cause any
of the Issuers of any outstanding Series to be treated as an association,
a publicly-traded partnership or a taxable mortgage pool taxable as a
corporation, for U.S. federal income tax purposes, and (z) will not cause or
constitute an event in which any U.S. federal income tax gain or loss would be
recognized by any Noteholder or any of the Issuers of any outstanding Series;


 


(v)                                 receipt
by the Indenture Trustee and each Insurer of Opinions of Counsel, (w) relating
to the perfection and priority of the Indenture Trustee’s security interest, (x)
relating to the consolidation of the assets and liabilities of the applicable
Issuers in a bankruptcy proceeding that involves the applicable Originators, any
such Issuers or Spirit Finance, (y) relating to the “true sale” of the
Collateral included in the Collateral Pool (including any Qualified Substitute
Mortgage Loans or Qualified Substitute Mortgaged Properties pledged by the
applicable Issuers) on the related Series 


 


25



















 


Closing Date and (z) relating
to the characterization of any Class of Notes indicated in the related Series Supplement
as debt for U.S. federal income tax purposes;


 


(vi)                              receipt
by the Indenture Trustee of copies of letters signed by each applicable Rating
Agency confirming that each Class of Notes has been given the then-current
ratings by such Rating Agencies;


 


(vii)                           any
applicable Issuer, if it has not done so for any previously issued Series, has
delivered an Opinion of Counsel or certificate of the Issuer to the Indenture
Trustee, dated the applicable Series Closing Date, to the effect that such
Issuer is a solvent, special purpose, bankruptcy-remote entity;


 


(viii)                        receipt by
the Indenture Trustee of the written consent of each of the Insurers to such
New Issuance;


 


(ix)                                such
New Issuance shall not result in the occurrence of an Event of Default and the
Issuers have delivered to the Indenture Trustee and each Insurer an Officer’s
Certificate, dated the applicable Series Closing Date (upon which the Indenture
Trustee may rely), to the effect that (1) based on the facts known to
the Person executing such Officer’s Certificate, the Issuers reasonably believe
that no uncured Event of Default is continuing at the time of such New Issuance
and that such New Issuance shall not result in the occurrence of an Event of
Default and (2) all conditions precedent to such execution, authentication
and delivery have been satisfied.


 


Section 2.05                            Registration
of Transfer and Exchange of Notes.


 


(a)                                  At
all times during the term of this Indenture, there shall be maintained at the
office of the Note Registrar a “Note
Register” in which, subject to such reasonable regulations as
the Note Registrar may prescribe, the Note Registrar shall provide for the
registration of Notes and of transfers and exchanges of Notes as herein
provided. The offices of the Note Registrar shall be initially located (as of
the Initial Closing Date) at Citibank, N.A., 388 Greenwich Street, 14th Floor,
New York, New York 10013, Attention: Structured Finance Agency and Trust-
Spirit Master Funding. The Indenture Trustee is hereby initially appointed (and
hereby agrees to act in accordance with the terms hereof) as “Note Registrar” for the purpose of
registering Notes and transfers and exchanges of Notes as herein provided. The
Indenture Trustee may appoint, by a written instrument delivered to the
Issuers, any other bank or trust company to act as Note Registrar under such
conditions as the predecessor Indenture Trustee may prescribe; provided,
that the Indenture Trustee shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the Indenture
Trustee resigns or is removed in accordance with the terms hereof, the
successor trustee shall immediately succeed to its predecessor’s duties as Note
Registrar. The Issuers, the Property Manager, the Special Servicer, the Back-Up
Manager and the Indenture Trustee shall have the right to inspect the Note
Register or to obtain a copy thereof at all reasonable times, and to rely
conclusively upon a certificate of the Note Registrar as to the information set
forth in the Note Register. Upon written request of any Noteholder made for
purposes of communicating with other Noteholders with respect to their rights
under this Indenture, the Note Registrar shall


 


26

















 


promptly
furnish such Noteholder with a list of the other Noteholders of record
identified in the Note Register at the time of the request.


 


(b)                                 No
Transfer of any Note or interest therein shall be made unless that Transfer is
made pursuant to an effective registration statement under the 1933 Act, and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. No purported Transfer of any interest in any Note or any portion
thereof which is not made in accordance with this Section 2.05
shall be given effect by or be binding upon the Indenture Trustee and any such
purported Transfer shall be null and void ab initio and
vest in the transferee no rights against the Collateral Pool or the Indenture
Trustee.


 


None of the Issuers or any other person shall be obligated to register
or qualify any Notes under the 1933 Act or any other securities law or to take
any action not otherwise required under this Indenture to permit the transfer
of any Note or interest therein without registration or qualification.


 


By its acceptance of a Note or an Ownership Interest therein, each Holder
and Note Owner, respectively, will be deemed to have represented and agreed
that the Transfer thereof is restricted and agrees that it shall Transfer such
Note or Ownership Interest only in accordance with the terms of this Indenture
and such Note (including the legends applicable thereto) and in compliance with
applicable law.


 


(c)                                  A
Noteholder or Note Owner may Transfer a Book-Entry Note or Ownership
Interest therein only in accordance with the following provisions:


 


(i)                                     No
Transfer of any Book-Entry Note or an Ownership Interest therein shall be made
unless such Transfer is made to a Qualified Institutional Buyer in reliance on Rule 144A
or in an “offshore transaction” (within the meaning of Regulation S) to a
non-U.S. Person in reliance on Regulation S, and pursuant to exemption,
registration or qualification under applicable state securities laws. The
Indenture Trustee shall be entitled to rely upon the representations made by
each transferee pursuant to this Section 2.05, and shall have no
duty to undertake any investigation or verify that any Transfer satisfies the
requirements of this paragraph.


 


(ii)                                  Restricted
Global Note to Regulation S Global Note during Restricted Period. If a
Holder of or a Note Owner with respect to a Restricted Global Note wishes at
any time during the Restricted Period to Transfer such Restricted Global Note
or an Ownership Interest therein to a Person who wishes to take delivery
thereof in the form of a Regulation S Global Note or an Ownership Interest
therein, such Holder or Note Owner may, subject to the provisions of this Section 2.05,
Transfer such Restricted Global Note for a Regulation S Global Note of the same
Series and Class or an Ownership Interest therein with an equivalent
principal amount. Upon receipt by the Indenture Trustee of a certificate
substantially in the form of Exhibit D-2 (subject to Section 12.03)
given by the transferee of such Note or Ownership Interest (stating that such
transferee is a non-U.S. Person and the Transfer of such interest has been made
in compliance with the transfer restrictions applicable to such Notes and in
accordance with


 


27

















 


Regulation S), the Indenture
Trustee shall cancel the Restricted Global Note so transferred (or reduce the
principal amount of the Notes evidenced thereby), the applicable Issuers shall,
concurrently with such cancellation (or reduction), issue and the Indenture
Trustee shall cause to be authenticated to the transferee a Regulation S Global
Note of the same Series and Class (or increase the principal amount
of the Notes evidenced by such Regulation S Global Note) in an aggregate
principal amount equal to the aggregate principal amount of the Restricted
Global Note so transferred.


 


(iii)                               Restricted
Global Note to Regulation S Global Note after the Expiration of Restricted
Period. If a Holder of or a Note Owner with respect to a Restricted Global
Note wishes at any time after the expiration of the Restricted Period to
Transfer such Restricted Global Note or an Ownership Interest therein to a
Person who wishes to take delivery thereof in the form of a Regulation S
Global Note or an Ownership Interest therein, such Noteholder or Note Owner
may, subject to provisions of this Section 2.05, Transfer such
Restricted Global Note for a Regulation S Global Note of the same Series and
Class or an Ownership Interest therein with an equivalent principal
amount. Upon receipt by the Indenture Trustee of a certificate substantially in
the form of Exhibit D-3 (subject to Section 12.03)
given by the transferee stating that the Transfer of such interest has been
made in compliance with the transfer restrictions applicable to such Notes and
pursuant to and in accordance with Regulation S, the Indenture Trustee shall
cancel the Restricted Global Note so transferred (or reduce the principal
amount of the Notes evidenced thereby) and the applicable Issuers shall,
concurrently with such cancellation (or reduction), issue and the Indenture
Trustee shall cause to be authenticated to the transferee a Regulation S Global
Note of the same Series and Class (or increase the principal amount
of the Notes evidenced by such Regulation S Global Note) in an aggregate
principal amount equal to the aggregate principal amount of the Restricted
Global Note so transferred.


 


(iv)                              Regulation
S Global Note to Restricted Global Note. If a Holder of or a Note Owner
with respect to a Regulation S Global Note wishes at any time to transfer such
Regulation S Global Note or an Ownership Interest therein to a Qualified
Institutional Buyer who wishes to take delivery thereof in the form of a
Restricted Global Note or an Ownership Interest therein, such Noteholder or
Note Owner may, subject to the provisions of this Section 2.05,
Transfer such Regulation S Global Note for a Restricted Global Note of the same
Series and Class or an Ownership Interest therein in an equivalent
principal amount. Upon receipt by the Indenture Trustee of a certificate
substantially in the form of Exhibit D-1 (subject to Section 12.03)
given by the transferee and stating that such transferee is a Qualified
Institutional Buyer and is obtaining such Restricted Global Note or Ownership
Interest therein in a transaction meeting the requirements of Rule 144A,
the Indenture Trustee shall cancel the Regulation S Global Note so transferred
(or reduce the principal amount of the Notes evidenced thereby) and the
applicable Issuers shall, concurrently with such cancellation (or reduction),
issue and the Indenture Trustee shall cause to be authenticated to the
transferee a Restricted Global Note of the same Series and Class (or
increase the principal amount of the Notes evidenced by such Restricted Global
Note) in an aggregate principal amount equal to the aggregate principal amount
of the Regulation S Global Note so transferred.


 


28

















 


(v)                                 Transfer
of Ownership Interests in Book-Entry Notes. Ownership Interests in
Book-Entry Notes shall be transferred in accordance with the rules and
procedures of the Depository and the Depository Participants, including, with
respect to Regulation S Global Notes, Clearstream Banking, société
anonyme, or its successors, and Euroclear Bank S.A./N.V., as
operator of the Euroclear System, or its successors.


 


(d)                                 If
any Transfer of a Note or an Ownership Interest therein is to be held by the
related transferee in the form of a Definitive Note, then the Note
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) (A) an executed transferor
certificate from the transferor substantially in the form attached as Exhibit C-1
(subject to Section 12.03), and (B) an executed transferee
certificate from the prospective transferee substantially in the form attached
as Exhibit C-2 (subject to Section 12.03). If any such
transfer of a Note or Ownership Interest held by the related transferor and
also to be held by the related transferee in the form of a Book-Entry Note
is to be made without registration under the 1933 Act, the transferor will be
deemed to have made as of the transfer date each of the representations and
warranties set forth on Exhibit C-1 in respect of such Note and the
transferee will be deemed to have made as of the transfer date each of the
representations and warranties set forth on Exhibit C-2 in respect
of such Note, in each case as if such Note were evidenced by a Definitive Note.


 


(e)                                  If
a Person is acquiring any Note as a fiduciary or agent for one or more
accounts, such Person shall be required to deliver to the Note Registrar a
certification to the effect that, and such other evidence as may be
reasonably required by the Note Registrar to confirm that, it has (i) sole
investment discretion with respect to each such account and (ii) full
power to make the foregoing acknowledgments, representations, warranties,
certifications and agreements with respect to each such account as set forth in
subsections (b) and (c) of this Section 2.05.


 


(f)                                    Subject
to the preceding provisions of this Section 2.05, upon surrender
for registration of transfer of any Note at the offices of the Note Registrar
maintained for such purpose, the applicable Issuers shall execute, and the
Indenture Trustee shall cause to be authenticated and delivered, in the name of
the designated transferee or transferees, one or more new Notes of the same Series and
Class of a like Percentage Interest.


 


(g)                                 At
the option of any Holder, its Notes may be exchanged for other Notes of
authorized denominations of the same Series and Class of a like
Percentage Interest upon surrender of the Notes to be exchanged at the offices
of the Note Registrar maintained for such purpose. Whenever any Notes are so
surrendered for exchange, the applicable Issuers shall execute, and the
Indenture Trustee shall cause to be authenticated and delivered the Notes which
the Noteholder making the exchange is entitled to receive.


 


(h)                                 Every
Note presented or surrendered for transfer or exchange shall (if so required by
the Note Registrar) be duly endorsed by, or be accompanied by a written instrument
of transfer in the form satisfactory to the Note Registrar duly executed
by, the Holder thereof or his attorney duly authorized in writing.


 


29

















 


(i)                                     No
service charge shall be imposed for any transfer or exchange of Notes, but the
Indenture Trustee or the Note Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Notes.


 


(j)                                     All
Notes surrendered for transfer and exchange shall be physically canceled by the
Note Registrar, and the Note Registrar shall dispose of such canceled Notes in
accordance with its customary procedures.


 


(k)                                  The
Note Registrar or the Indenture Trustee shall provide to the Issuers upon
reasonable written request and at the expense of the requesting party a current
copy of the Note Register.


 


(l)                                     Each
transferee of a Note or an Ownership Interest therein will be deemed to have
represented, warranted and agreed that either (i) such transferee is not,
and is not purchasing such Note on behalf of, as a fiduciary of, as trustee of,
or with the assets of, a Plan or (ii)(A) such Note is rated investment
grade or better as of the date of the purchase, (B) such transferee
believes that such Note is properly treated as indebtedness without substantial
equity features for purposes of Department of Labor Regulations and agrees to
so treat such Note and (C) such transferee’s acquisition and continued
holding of such Note or Ownership Interest therein will not give rise to a
non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975
of the Code (or any materially similar applicable law).


 


Section 2.06                            Book-Entry
Notes.


 


(a)                                  The
Book-Entry Notes of each Series shall be delivered as one or more Notes
held by the Book-Entry Custodian or, if appointed to hold such Notes as
provided below, the Depository and registered in the name of the Depository or
its nominee and, except as provided in Section 2.06(c) below,
transfer of such Notes may not be registered by the Note Registrar unless
such transfer is to a successor Depository that agrees to hold such Notes for
the respective Note Owners with Ownership Interests therein. Except as provided
in Section 2.06(c) below, such Note Owners shall hold and
transfer their respective Ownership Interests in and to such Notes through the
book-entry facilities of the Depository and, except as provided in Section 2.06(c) below,
shall not be entitled to definitive, fully registered Notes (“Definitive Notes”) in respect of such
Ownership Interests. All transfers by Note Owners of their respective Ownership
Interests in the Book-Entry Notes to be held by the related transferees as
Book-Entry Notes shall be made in accordance with the procedures established by
the Depository Participant or brokerage firm representing each such Note Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Notes of Note Owners it represents or of brokerage firms for which
it acts as agent in accordance with the Depository’s normal procedures. The
Indenture Trustee is hereby initially appointed as the Book-Entry Custodian and
hereby agrees to act as such in accordance herewith and in accordance with the
agreement that it has with the Depository authorizing it to act as such.
Neither the Indenture Trustee nor the Note Registrar shall have any
responsibility to monitor or restrict the transfer of any Book-Entry Note
transferable through the book-entry facilities of the Depository. The
Book-Entry Custodian may, and, if it is no longer qualified to act as such, the
Book-Entry Custodian shall, appoint, by a written instrument delivered to the
Issuers, the Property Manager and Special Servicer, and, if


 


30

















 


the Indenture
Trustee is not the Book-Entry Custodian, the Indenture Trustee, any other
transfer agent (including the Depository or any successor Depository) to act as
Book-Entry Custodian under such conditions as the predecessor Book-Entry
Custodian and the Depository or any successor Depository may prescribe; provided,
that the predecessor Book-Entry Custodian shall not be relieved of any of its
duties or responsibilities by reason of any such appointment other than the
Depository. If the Indenture Trustee resigns or is removed in accordance with
the terms hereof, the successor trustee or, if it so elects, the Depository
shall immediately succeed to its predecessor’s duties as Book-Entry Custodian.
The Issuers shall have the right to inspect, and to obtain copies of, any Notes
held as Book-Entry Notes by the Book-Entry Custodian.


 


(b)                                 The
Issuers, the Indenture Trustee, the Property Manager, the Special Servicer, the
Back-Up Manager and the Note Registrar may for all purposes, including the
making of payments due on the Book-Entry Notes, deal with the Depository as the
Noteholder and the authorized representative of the Note Owners with respect to
such Notes for the purposes of exercising the rights of Noteholders hereunder.
The rights of Note Owners with respect to the Book-Entry Notes shall be limited
to those established by law and agreements between such Note Owners and the
Depository Participants and brokerage firms representing such Note Owners.
Multiple requests and directions from, and votes of, the Depository as holder
of the Book-Entry Notes with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Note Owners. The
Indenture Trustee may establish a reasonable record date in connection
with solicitations of consents from or voting by Noteholders and shall give
notice to the Depository of such record date.


 


(c)                                  If
(i) the Issuers advise the Indenture Trustee and the Note Registrar in
writing that the Depository is no longer willing or able to properly discharge
its responsibilities with respect to the Book-Entry Notes (or any portion
thereof), and (ii) the Issuers are unable to locate a qualified successor,
the Note Registrar shall notify all affected Note Owners, through the Depository,
of the occurrence of any such event and of the availability of Definitive Notes
to such Note Owners requesting the same. Upon surrender to the Note Registrar
of the Book-Entry Notes (or any portion thereof) by the Book-Entry Custodian or
the Depository, as applicable, and the delivery of registration instructions
from the Depository for registration of transfer, the applicable Issuers shall
execute, and the Indenture Trustee shall cause to be authenticated and
delivered, the Definitive Notes in respect of such Notes to the Note Owners
identified in such instructions. None of the applicable Issuers, the Indenture
Trustee, the Collateral Agent, the Property Manager, the Special Servicer, the
Back-Up Manager or the Note Registrar 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.


 


(d)                                 Upon
the issuance of Definitive Notes, for purposes of evidencing ownership of any
Notes formerly held as Book-Entry Notes, the registered holders of such
Definitive Notes shall be recognized as Noteholders hereunder and, accordingly,
shall be entitled directly to receive payments on, to exercise voting and
consent rights with respect to, and to transfer and exchange such Definitive
Notes.


 


(e)                                  Each
of the Issuers shall provide an adequate inventory of Definitive Notes of each Class of
each Series to the Indenture Trustee.


 


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Section 2.07                            Mutilated,
Destroyed, Lost or Stolen Notes.


 


If any mutilated Note is surrendered to the Note Registrar, the
applicable Issuers shall execute and the Indenture Trustee shall cause to be
authenticated and delivered, in exchange therefor, a new Note of the same
Series, Class and principal amount and bearing a number not
contemporaneously outstanding.


 


If there shall be delivered to the applicable Issuers, the Indenture
Trustee and the Note Registrar (i) evidence to their satisfaction of the
destruction (including mutilation tantamount to destruction), loss or theft of
any Note and the ownership thereof, and (ii) indemnity as may be
reasonably required by them to hold each of them and any of their agents
harmless, then, in the absence of notice to the applicable Issuers or the Note
Registrar that such Note has been acquired by a bona fide purchaser, the
applicable Issuers shall execute and the Indenture Trustee shall cause to be
authenticated and delivered, in lieu of any such destroyed, lost or stolen
Note, a new Note of the same Series, Class, tenor and denomination registered
in the same manner, dated the date of its authentication and bearing a number
not contemporaneously outstanding.


 


Upon the issuance of any new Note under this Section 2.07,
the applicable Issuers, the Indenture Trustee and the Note Registrar may require
the payment by the Noteholder of an amount sufficient to pay or discharge any
tax or other governmental charge that may be imposed in relation thereto
and any other reasonable expenses (including the reasonable fees and expenses
of the Authenticating Agent and the Indenture Trustee) in connection therewith.


 


Every new Note issued pursuant to this Section 2.07 in lieu
of any destroyed, mutilated, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuers, whether or not the destroyed,
mutilated, lost or stolen Note shall be at any time enforceable by any Person,
and such new Note shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes of its Class and Series duly
issued hereunder.


 


The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent permitted by applicable law) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Notes.


 


Section 2.08                            Noteholder
Lists.


 


The Note Registrar shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Noteholders of each Series, which list, upon request, will be
made available to the Indenture Trustee insofar as the Indenture Trustee is no
longer the Note Registrar. Upon written request of any Noteholder made for
purposes of communicating with other Noteholders with respect to their rights
under this Indenture, the Note Registrar shall promptly furnish such Noteholder
at such Noteholder’s expense with a list of the Noteholders of record
identified in the Note Register at the time of the request. Every Noteholder,
by receiving such access, or by receiving a Note or an interest therein, agrees
with the Note Registrar that the Note Registrar will not be held accountable in


 


32

















 


any way by reason of the disclosure of any
information as to the names and addresses of any Noteholder regardless of the
source from which such information was derived.


 


Section 2.09                            Persons
Deemed Owners.


 


The Issuers, the Indenture Trustee, the Note Registrar and any of their
agents, may treat the Person in whose name a Note is registered as the
owner of such Note as of the related Record Date for the purpose of receiving
payments of principal, interest and other amounts in respect of such Note and
for all other purposes, whether or not such Note shall be overdue, and none of
the Issuers, the Indenture Trustee, the Note Registrar or any agents of any of
them, shall be affected by notice to the contrary.


 


Section 2.10                            Payment
Account.


 


(a)                                  On
or prior to the Initial Closing Date, the Indenture Trustee shall establish and
maintain one or more segregated trust accounts (collectively, the “Payment Account”) at Citibank, N.A. (or
at such other financial institution as necessary to ensure that the Payment
Account is at all times an Eligible Account or a sub-account of an Eligible
Account, in each case subject to an Account Control Agreement), in its name, as
Indenture Trustee, bearing a designation clearly indicating that such account
and all funds deposited therein are held for the exclusive benefit of the
Noteholders, the Insurers and the Issuers as their interests may appear.
On each Remittance Date, the Indenture Trustee shall deposit or cause to be
deposited in the Payment Account, upon receipt or withdrawal as provided in the
Property Management Agreement, the Available Amount for such Payment Date.
Except as provided in this Indenture, the Indenture Trustee, in accordance with
the terms of this Indenture, shall have exclusive control and sole right of
withdrawal with respect to the Payment Account. Funds in the Payment Account
shall not be commingled with any other moneys. All moneys deposited from time
to time in the Payment Account shall be held by and under the control of the
Indenture Trustee in the Payment Account for the benefit of the Noteholders,
the Insurers and the Issuers as herein provided.


 


(b)                                 Amounts
in the Payment Account shall be held uninvested.


 


(c)                                  The
Indenture Trustee is authorized to make withdrawals from the Payment Account
(the order set forth hereafter in this subsection (c) not
constituting an order of priority for such withdrawals) to make payments on the
Notes and to other parties as set forth in the priorities of payments pursuant
to Section 2.11(b) of this Indenture, to the applicable Hedge
Counterparties, to the Insurers and to the Issuers as provided in Section 2.11.


 


(d)                                 Upon
the satisfaction and discharge of this Indenture pursuant to Section 3.01,
the Indenture Trustee shall pay to the Issuers, as their interests may appear,
all amounts, if any, held by it remaining as part of the Collateral Pool.


 


Section 2.11                            Payments
on the Notes.


 


(a)                                  Subject
to Section 2.11(b), the applicable Issuers agree to pay


 


33

















 


(i)                                     on
each Payment Date prior to the Legal Final Payment Date for the Classes of each
Series of Notes (but only to the extent of the Available Amount pursuant
to Section 2.11(b), in the case of payments of principal), interest
on and principal of such Notes in the amounts and in accordance with the
priorities set forth in Section 2.11(b); and


 


(ii)                                  on
the Legal Final Payment Date for the Classes of each Series of Notes, the
entire applicable Aggregate Note Principal Balance, together with all accrued
and unpaid interest thereon.


 


Amounts properly withheld under the Code by any Person from a payment
to any Holder of a Note of interest, principal or other amounts, or any such
payment set aside on the Final Payment Date for such Note as provided in Section 2.11(b),
shall be considered as having been paid by the applicable Issuers to such
Noteholder for all purposes of this Indenture.


 


(b)                                 With
respect to each Payment Date, any interest, principal and other amounts payable
on the Notes shall be paid to each Person that is a registered holder thereof
at the close of business on the related Record Date; provided, however,
that interest, principal and other amounts payable at the Final Payment Date of
any Note shall be payable only against surrender thereof at the Indenture
Trustee’s Office or such other address as may be specified in the notice
of final payment. Payments of interest, principal and other amounts on the
Notes shall be made on each Payment Date other than the Final Payment Date,
subject to applicable laws and regulations, by wire transfer to such accounts
as each such Noteholder shall designate by written instruction received by the
Indenture Trustee not later than the Record Date related to such Payment Date
or otherwise by check mailed on or before such Payment Date to the Person
entitled thereto at such Person’s address appearing on the Note Register as of
the related Record Date. The Indenture Trustee shall pay each Note in whole or
in part as provided herein on its Final Payment Date in immediately
available funds from funds in the Payment Account as promptly as possible after
presentation to the Indenture Trustee of such Note at the Indenture Trustee’s
Office, but in no event later than the next Business Day after the day of such
presentation. If presentation is made after 3:30 p.m., New York City time,
on any day, such presentation shall be deemed to have been made on the
immediately succeeding Business Day.


 


Each payment with respect to a Book-Entry Note shall be paid to the
Depository, as holder thereof, and the Depository shall be responsible for
crediting the amount of such payment to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such payments to the related
Note Owners that it represents and to each indirect participating brokerage
firm (a “brokerage firm” or “indirect participating firm”) for
which it acts as agent. Each brokerage firm shall be responsible for disbursing
funds to the related Note Owners that it represents. None of the parties hereto
shall have any responsibility therefor except as otherwise provided by this
Indenture or applicable law. The applicable Issuers and the Indenture Trustee
shall perform their respective obligations under each Letter of
Representations.


 


Except as provided in the following sentence, if a Note is issued in
exchange for any other Note during the period commencing at the close of
business at the office or agency where such exchange occurs on any Record Date
and ending before the opening of business at


 


34

















 


such office or agency on the related Payment
Date, no interest, principal or other amounts will be payable on such Payment
Date in respect of such new Note, but will be payable on such Payment Date only
in respect of the prior Note. Interest, principal and other amounts payable on
any Note issued in exchange for any other Note during the period commencing at
the close of business at the office or agency where such exchange occurs on the
Record Date immediately preceding the Final Payment Date for such Notes and ending
on the Final Payment Date for such Notes, shall be payable to the Person that
surrenders the new Note as provided in this Section 2.11(b).


 


All payments of interest, principal and other amounts made with respect
to the Notes of a Class of any Series will be allocated pro rata among the Outstanding Notes of such Class based
on the related Note Principal Balance.


 


If any Note on which the final payment was due is not presented for
payment on its Final Payment Date, then the Indenture Trustee shall set aside
such payment in a segregated, non-interest bearing account (and shall remain
uninvested) separate from the Payment Account (but which may be a
sub-account thereof) but which constitutes an Eligible Account (or a
sub-account of an Eligible Account), and the Indenture Trustee and the Issuers
shall act in accordance with Section 5.10 in respect of the
unclaimed funds.


 


On each Payment Date, the Available Amount for such Payment Date will
be applied by the Indenture Trustee, first to pay the following expenses of the
Issuers related to the Collateral Pool (collectively, “Collateral
Pool Expenses”) as follows:


 


(1)                                  to
the extent not withdrawn from the Collection Account by the Property Manager on
or prior to the applicable Remittance Date in accordance with the Property
Management Agreement, from amounts received with respect to any Mortgage Loan
or Mortgaged Property: first, to the Property Manager or the Back-Up
Manager, as applicable, reimbursement for unreimbursed Property Protection
Advances (plus interest thereon) with respect to such Mortgage Loan or
Mortgaged Property; and second, to the Special Servicer, any earned and
unpaid Special Servicing Fee, Liquidation Fees and Workout Fees with respect to
such Mortgage Loan or Mortgaged Property, if applicable; and


 


(2)                                  to
the extent not withdrawn from the Collection Account by the Property Manager on
or prior to the applicable Remittance Date in accordance with the Property
Management Agreement, on a pro rata
basis, (I) to the Indenture Trustee, the earned and unpaid Indenture Trustee
Fees, (II) to the Property Manager, the earned and unpaid Property Management
Fee, (III) to the extent not already paid pursuant to clause (1) above,
to the Special Servicer, any earned and unpaid Special Servicing Fees, (IV) to
the Back-Up Manager, the Back-Up Fee, (V) to the parties entitled thereto, the
amount of any Issuer Expenses (not to exceed the Issuer Expense Cap, unless an
Event of Default resulting in the acceleration of the Notes has occurred and is
then continuing, in which case, such limit will not apply), (VI) to the Back-Up
Manager and the Property Manager, as applicable, reimbursement for
Nonrecoverable Property Protection Advances (plus interest thereon) and (VII) (a) first,
to the Indenture Trustee and (b) second, to the relevant party, the
amount of Extraordinary Expenses not already


 


35

















 


reimbursed in sub-clauses
(I) through (VI) above (not to exceed the Extraordinary Expense Cap,
unless an Event of Default resulting in the acceleration of the Notes has
occurred and is then continuing, in which case (i) such limit will not
apply and (ii) indemnities due to the Issuers or any Control Person,
member, manager, officer, employee or agent of any such Issuers, other than any
such party in connection with its role as Property Manager or Special Servicer,
will be payable only after payments due to the Noteholders pursuant to the
allocation of Series Available Amount below).


 


The Available Amount remaining on any Payment Date after payment of
Collateral Pool Expenses will be allocated among each Series in the
following manner and priority (the aggregate amount allocated to any Series pursuant
to clauses (1) through (8) below, as applicable, the “Series Available Amount”):


 


(1)                                  pro rata, to each Series based on any
and all amounts due on such Payment Date for each Series in respect of
amounts due to the related Insurer in respect of any earned and unpaid Insurer
Premiums;


 


(2)                                  pro rata, to each Series based on any
and all amounts due on such Payment Date for each Series in respect of the
aggregate Note Interest on the Notes plus any unpaid Note Interest from any
prior Payment Date, together with interest thereon at the rates applicable to
such Notes, in each case, plus or minus, as applicable, any net payment due or
proceeds received (excluding any termination payments due as a result of the
default of any Hedge Counterparty) for such Payment Date from any related Hedge
Agreements;


 


(3)                                  so
long as no Early Amortization Event has occurred and is continuing,
sequentially:


 


a.                                       pro rata, to each Series based on any and all amounts
due on such Payment Date for each Series in respect of Scheduled Principal
Payments on the related Notes; and


 


b.                                      pro rata, to each Series in respect of principal, based
on the applicable Aggregate Note Principal Balance, in each case after
application of the allocations described in clause (3)(a) above,
the Unscheduled Principal Payment for such Payment Date, if any;


 


(4)                                  during
the continuance of an Early Amortization Event, pro rata, to each Series in respect of principal of the
related Notes, based on the applicable Aggregate Note Principal Balance, in
each case until such Aggregate Note Principal Balance has been reduced to zero;


 


(5)                                  (I)
if a Sweep Period is in effect and no Early Amortization Event has otherwise
occurred and is continuing, to the Cashflow Coverage Reserve Account, up to (a) the
amount that would be required to be added to the Monthly Loan Payments and the
Monthly Lease Payments received during the prior Collection Period to achieve a
Cashflow Coverage Ratio of 1.25 on the applicable


 


36

















 


Determination Date, plus (b) the
aggregate shortfalls, if any, of the amount that should have been deposited
into the Cashflow Coverage Reserve Account on any prior Payment Date; or (II)
if the Average Cashflow Coverage Ratio is below 1.10 and the Requisite Global
Majority waives the related Early Amortization Event, then pro rata to each Series in respect of
principal of the related Notes, based on the applicable Aggregate Note
Principal Balance, all amounts on deposit in the Cashflow Coverage Reserve
Account as of such Payment Date and all amounts that should have otherwise been
deposited in the Cashflow Coverage Reserve Account immediately before release
of all amounts on deposit therein (as described in clause 5(I) above) on
such Payment Date;


 


(6)                                  to
the Insurers, any and all amounts due on such Payment Date to each of the
Insurers (under the applicable Insurance Policies and Insurance Agreements) not
paid pursuant to the allocation described in clause (1) above, pro rata, based on such amounts due to
each of the Insurers;


 


(7)                                  to
any Hedge Counterparty, any and all amounts (including any termination payments
due as a result of the default of any Hedge Counterparty) due on such Payment
Date to such Hedge Counterparty not paid pursuant to the allocation described
in clause (2) above, pro rata,
based on such amounts due to such Hedge Counterparty; and


 


(8)                                  to
each Series, pro rata, based on
any and all amounts due on such Payment Date for such Series in respect of
Make Whole Payments, if any, on the related Notes and any unpaid Make Whole
Payments from any prior Payment Date.


 


On each Payment Date, the Indenture Trustee will apply and will pay the
Series Available Amount with respect to each Series for such Payment
Date for the purposes and in the order of priority indicated in the related Series Supplement.
The Available Amount remaining on any Payment Date after the allocations
described above shall be applied first, to the payment of Issuer
Expenses and Extraordinary Expenses not paid from the Available Amount in
accordance with the foregoing allocations, and second, to the Issuers
or, at the option of any such Issuer, to the Release Account. In the event that
no Early Amortization Event has occurred and is continuing, Excess Cashflow
received during a Collection Period shall be distributed, pro rata,
to the holders of the LLC Interests.


 


The Requisite Global Majority may waive the occurrence of an Early
Amortization Event under clauses (A) and (B) of the
definition of “Early Amortization Event”. An Early Amortization Event under clause
(A) of the definition of “Early Amortization Event” may only be
cured two times in any calendar year and may be cured no more than five
times in total (after which such Early Amortization Event may no longer be
cured). The occurrence of an Early Amortization Event under clause (C) of
the definition of “Early Amortization Event”, shall only be waivable in
accordance with the terms and provisions of the applicable Series Supplement.


 


37

















 


The Notes are nonrecourse obligations solely of the applicable Issuers
and will be payable only from the Collateral included in the Collateral Pool
and the proceeds of the Insurance Policies, as applicable. Each Noteholder and
Note Owner will be deemed to have agreed that they have no rights or claims
against the Issuers directly and may only look to the Collateral Pool and
the Insurance Policies, as applicable, to satisfy any such Issuer’s obligations
hereunder. Each Noteholder and Note Owner will be deemed to have agreed, by its
acceptance of its Note or its Ownership Interest therein, not to file or join
in filing any petition in bankruptcy or commence any similar proceeding in
respect of any applicable Issuer for a period of two years and 31 days
following payment in full of the Notes of all Series. Notwithstanding the
provisions of this Section 2.11(b), the Issuers may, subject to Section 9.06,
at any time advance funds to the Indenture Trustee for the purpose of allowing
the Indenture Trustee to make required payments on the Notes (“Issuer Advances”) without right of
reimbursement.


 


(c)                                  In
connection with making any payments pursuant to Section 2.11(b),
the Indenture Trustee shall make available to each Issuer and each Insurer on
the related Payment Date via the Indenture Trustee’s internet website specified
in Section 6.01(a), a written statement detailing the amounts so
paid; provided, that if such information is not so available on the
Indenture Trustee’s internet website for any reason, the Indenture Trustee
shall provide each Issuer and each Insurer with such written statement by
facsimile transmission, confirmed in writing by first class mail or
overnight courier.


 


Section 2.12                            Final
Payment Notice.


 


(a)                                  Notice
of final payment under Section 2.11(b) shall be given by the
Indenture Trustee as soon as practicable, but not later than two Business Days
prior to the Final Payment Date for a Class of any Series, to each
Noteholder of such Series as of the close of business on the Record Date
preceding the Final Payment Date at such Noteholder’s address appearing in the
Note Register and to each applicable Rating Agency, any applicable Insurer and
each applicable Issuer.


 


(b)                                 All
notices of final payment in respect of a Class of Notes of any Series shall
state (i) the Final Payment Date for such Notes, (ii) the amount of
the final payment for such Notes and (iii) the place where such Notes are
to be surrendered for payment.


 


(c)                                  Notice
of final payment of a Class of Notes of any Series shall be given by
the Indenture Trustee in the name and at the expense of the Indenture Trustee.
Failure to give notice of final payment, or any defect therein, to any
Noteholder of such Series shall not impair or affect the validity of the
final payment of any other Note.


 


Section 2.13                            Compliance
with Withholding Requirements.


 


Notwithstanding any other provision of this Indenture, the Indenture
Trustee shall comply with all federal withholding requirements with respect to
payments to Noteholders of interest, original issue discount, or other amounts
that the Indenture Trustee reasonably believes are applicable under the Code or
any other applicable federal law. The consent of Noteholders shall not be
required for any such withholding.


 


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Section 2.14                            Cancellation.


 


The applicable Issuers may at any time deliver to the Note Registrar
for cancellation any Notes previously authenticated and delivered hereunder
which such Issuers may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly canceled by the Note Registrar.


 


All Notes delivered to the Indenture Trustee for payment shall be
forwarded to the Note Registrar. All such Notes and all Notes surrendered for
transfer and exchange in accordance with the terms hereof shall be canceled and
disposed of by the Note Registrar in accordance with its customary procedures.


 


Section 2.15                            The
Insurance Policies.


 


(a)                                  (i) If,
as of 5:00 p.m. New York City time, on the third Business Day prior to any
Payment Date, the Indenture Trustee has received the Determination Date Report
from the Property Manager, it will determine whether the Series Available
Amount that is to be distributed on such Payment Date with respect to any Series of
Notes pursuant to (and subject to the priorities set forth in) Section 2.11(b) will
be sufficient to pay applicable Insured Obligations on such Payment Date (any
shortfall, a “Deficiency”).
If the Indenture Trustee determines there will be a Deficiency, the Indenture
Trustee shall by 12:00 p.m. on the second Business Day immediately prior
to such Payment Date make a claim under the applicable Insurance Policy for the
amount of the Deficiency for such Payment Date pursuant to the terms of such
Insurance Policy.


 


(ii)                                  If
the Indenture Trustee has been notified by a Noteholder that a Preference
Amount exists with respect to any Noteholder, the Indenture Trustee shall,
after receiving all documents required under the applicable Insurance Policy to
be delivered in connection with such a Preference Amount, make a claim under
such Insurance Policy for such a Preference Amount pursuant to the terms of
such Insurance Policy.


 


(iii)                               An
Insurer may elect, at its sole option, pursuant to this Indenture, the
applicable Insurance Policy and the applicable Insurance Agreement, to make an
advance to the Indenture Trustee for the benefit of the applicable Noteholders
in lieu of payment under such Insurance Policy in an amount equal to the amount
demanded under a notice for payment thereunder, for payment in respect of such
Noteholders, and such advance shall be deemed to be a payment under such
Insurance Policy for such Noteholders for purposes of this Indenture.


 


(b)                                 The
Indenture Trustee shall, prior to each applicable Series Closing Date,
establish at Citibank, N.A. (or at such other financial institution as provided
in the applicable Series Supplement or as necessary to ensure that such
Insurance Policy Proceeds Account is at all times an Eligible Account) a
segregated trust account that shall be designated as an “Insurance Policy Proceeds Account”, in
its name, as Indenture Trustee, bearing a designation clearly indicating that
such account and all funds deposited therein are held for the exclusive benefit
of the applicable Noteholders, over which the Indenture Trustee shall have
exclusive


 


39

















 


control and
the sole right of withdrawal, and in which neither the applicable Issuers nor
any other Person shall have any legal or beneficial interest. Such Insurance
Policy Proceeds Account may be a sub-account of the Payment Account. The
Indenture Trustee shall deposit all amounts received from the Insurer under
such Insurance Policy in such Insurance Policy Proceeds Account, which shall be
used solely to pay the applicable Insured Obligations. Any and all funds at any
time on deposit in, or otherwise to the credit of, such Insurance Policy
Proceeds Account shall be held uninvested (unless otherwise specified in the
applicable Series Supplement). The only permitted withdrawal from or
application of funds on deposit in, or otherwise to the credit of, such
Insurance Policy Proceeds Account shall be to make payments of the applicable
Insured Obligations due on the related Payment Date in respect of which such
funds are paid, to the extent such Insured Obligations are not paid pursuant to
Section 2.11 or Section 4.05. Any funds held in an
Insurance Policy Proceeds Account after the distributions made pursuant to Section 2.11
on any Payment Date shall promptly be remitted to the applicable Insurer.


 


(c)                                  Upon
the expiration of an Insurance Policy in accordance with the terms thereof, the
Indenture Trustee shall surrender the same to the applicable Insurer for
cancellation in accordance with the terms thereof.


 


(d)                                 The
Indenture Trustee shall, and hereby agrees that it will, hold each of the
Insurance Policies and any proceeds of any claim thereon in trust solely for
the use and benefit of the applicable Noteholders.


 


Section 2.16                            The
Hedge Agreements.


 


(a)                                  On
any Series Closing Date, the applicable Issuers may enter into one or
more Hedge Agreements with respect to any Class of any related Series of
Notes.


 


(b)                                 The Indenture Trustee
shall, on behalf of the applicable Issuers, distribute amounts due to each
Hedge Counterparty under the applicable Hedge Agreements on any Payment Date
from the Payment Account in accordance with Section 2.11 and the
applicable Series Supplement.


 


(c)                                  The Indenture Trustee
shall agree to any reduction in the notional amount of any Hedge Agreement
requested by the applicable Issuers; provided, that, if any Notes are
then Outstanding and rated by the Rating Agencies, the Indenture Trustee shall
first have received the prior written consent of each Insurer and written
confirmation that the Rating Condition is satisfied. Any amount paid by a Hedge
Counterparty to the applicable Issuers in connection with such reduction shall
constitute part of the Available Amount except as otherwise provided in
the applicable Series Supplement.


 


(d)                                 Each Hedge Agreement
(unless otherwise provided in the applicable Series Supplement) shall
permit the complete or partial termination thereof (without the payment by the
applicable Issuers of penalties or fees other than termination-related
expenses) by the applicable Issuers subject to the provision of at least ten (10) Business
Days notification to the Rating Agencies. The Indenture Trustee shall, prior to
each applicable Series Closing Dates if required by the applicable Series Supplement,
establish at Citibank, N.A. (or at such other financial institution as provided
in the applicable Series Supplement and as necessary to ensure


 


40

















 


that the Hedge Counterparty Account is at all times an Eligible Account
or a sub-account of an Eligible Account) a segregated trust account that shall
be designated as a “Hedge Counterparty Account”,
in its name, as Indenture Trustee, bearing a designation clearly indicating
that such account and all funds deposited therein are held for the exclusive
benefit of the applicable Noteholders, over which the Indenture Trustee shall
have exclusive control and the sole right of withdrawal, and in which neither
the applicable Issuers nor any other Person shall have any legal or beneficial
interest. The Hedge Counterparty Accounts may be a sub-accounts of the
Payment Account. The only permitted withdrawal from or application of funds on
deposit in, or otherwise to the credit of, a Hedge Counterparty Account shall
be for application to obligations of the applicable Hedge Counterparty to the
applicable Issuers under the related Hedge Agreement.


 


(e)                                  In the event a Responsible
Officer of the Indenture Trustee becomes aware that a Hedge Counterparty has
defaulted in the payment when due of its obligations to the applicable Issuers
under the related Hedge Agreement, the Indenture Trustee shall make a demand on
such Hedge Counterparty, or any guarantor, if applicable, demanding payment by
12:30 p.m., New York City time, on such date (or by such time on the next
succeeding Business Day if such knowledge is obtained after 11:30 a.m.,
New York City time). The Indenture Trustee shall give notice to the applicable
Noteholders upon the continuing failure by such Hedge Counterparty to perform its
obligations during the two Business Days following a demand made by the
Indenture Trustee on such Hedge Counterparty.


 


(f)                                    If at any time a
Hedge Agreement becomes subject to early termination due to the occurrence
thereunder of an event of default or a termination event, the applicable
Issuers and the Indenture Trustee shall take such actions (following the
expiration of any applicable grace period and after the expiration of the two
Business Day period referred to in Section 2.16(e), as applicable)
to enforce the rights of the applicable Issuers and the Indenture Trustee
thereunder as may be permitted by the terms of such Hedge Agreement and
consistent with the terms hereof, and shall apply the proceeds of any such
actions (including, without limitation, the proceeds of the liquidation of any
collateral pledged by the related Hedge Counterparty) to enter into a
replacement Hedge Agreement on such terms or provide such other substitute
arrangement (or forebear from doing either of the foregoing), subject to the
consent of the applicable Insurer (so long as no Insurer Default has occurred
and is continuing), if any, or as otherwise provided in the applicable Series Supplement.
Any costs attributable to entering into a replacement Hedge Agreement which
exceed the aggregate amount of the proceeds of the liquidation of the
terminated Hedge Agreement shall constitute Issuer Expenses payable under Section 2.11(b).
In addition, the applicable Issuers will use their best efforts to cause the
termination of a Hedge Agreement to become effective simultaneously with the
entry into a replacement Hedge Agreement described as aforesaid.


 


(g)                                 The applicable obligations
under a Hedge Agreement must be non-recourse obligations of the applicable
Issuers payable only to the extent of available funds in accordance with Section 2.11(b) and
must contain the agreement of the Hedge Counterparty equivalent to Section 9.12
of the Property Management Agreement.


 


41

















 


Section 2.17                            Tax
Treatment of the Notes and the Issuers.


 


The Issuers have entered into this Indenture, and each Class of
Notes will be issued, with the intention that, for purposes of any federal,
state and local income or franchise tax and any other taxes imposed on or
measured by income, such Notes will qualify as indebtedness of the applicable
Issuers (unless otherwise provided in the applicable Series Supplement).
The Issuers, by entering into this Indenture, each Noteholder, by acceptance of
its Note, and each Note Owner, by purchasing or otherwise acquiring an
Ownership Interest in a Note, agree to treat the Notes and such Ownership
Interests for purposes of any federal, state and local income or franchise tax
and any other taxes imposed on or measured by income, as indebtedness of the
applicable Issuers (unless otherwise provided in the applicable Series Supplement).


 


Section 2.18                            Cashflow
Coverage Reserve Account.


 


(a)                                  On or prior to the
date hereof, the Indenture Trustee shall establish and maintain at Citibank,
N.A. (or at such other financial institution as necessary to ensure that the
Cashflow Coverage Reserve Account is at all times an Eligible Account or a
sub-account of an Eligible Account, in each case subject to an Account Control
Agreement) one or more segregated trust accounts (collectively, the “Cashflow Coverage Reserve Account”), in
its name, as Indenture Trustee, bearing a designation clearly indicating that
such account and all funds deposited therein are held for the exclusive benefit
of the Noteholders, the Insurers and the Issuers as their interests may appear.


 


(b)                                 The
Indenture Trustee shall deposit or cause to be deposited in the Cashflow
Coverage Reserve Account during any Sweep Period the amount allocated for such
purpose pursuant to Section 2.11(b). Except as provided in this
Indenture, the Indenture Trustee, in accordance with the terms of this
Indenture, shall have exclusive control and sole right of withdrawal with
respect to the Cashflow Coverage Reserve Account. Funds in the Cashflow
Coverage Reserve Account shall not be commingled with any other moneys. All
moneys deposited from time to time in the Cashflow Coverage Reserve Account
shall be held by and under the control of the Indenture Trustee in the Cashflow
Coverage Reserve Account for the benefit of the Noteholders, the Insurers and
the Issuers as herein provided.


 


(c)                                  All amounts in the
Cashflow Coverage Reserve Account shall remain uninvested.


 


(d)                                 If, on any
Determination Date, the Indenture Trustee shall have determined that the
Available Amount is not sufficient to make the payments set forth in clauses
(1) through (3)(a) of the allocation of the Series Available
Amount pursuant to Section 2.11(b) (the “Cashflow
Shortfall Amount”), the Indenture Trustee shall transfer the
amounts on deposit in the Cashflow Coverage Reserve Account to the Payment
Account in an amount up to such Cashflow Shortfall Amount on such Payment Date
to be applied as part of the Available Amount. Upon the termination of a
Sweep Period, the Indenture Trustee shall remit all amounts on deposit in the
Cashflow Coverage Reserve Account to the Payment Account for application by the
Indenture Trustee in accordance with Section 2.11(b). On the Legal
Final Payment Date of any Class of Notes, the Indenture Trustee shall
transfer all amounts on deposit in the Cashflow


 


42

















 


Coverage Reserve Account on such date to the Payment Account to be
applied as part of the Available Amount.


 


Section 2.19                            Representations
and Warranties With Respect To Mortgage Loans, Mortgaged Properties and Leases.


 


(a)                                  Subject to any
exceptions approved by each Insurer, each of the applicable Issuers shall make
the representations and warranties set forth in Exhibit A of the
applicable Series Supplement, as of the applicable Series Closing
Date or Transfer Date, with respect to the indicated Mortgage Loans, Mortgaged
Properties and Leases added to the Collateral Pool by such Issuer in connection
with the issuance of any Series of Notes or as Qualified Substitute
Mortgage Loans and/or Qualified Substitute Mortgaged Properties; provided,
that, the Issuer and any such Co-Issuer shall not be required to make such
representations and warranties with respect to any Mortgage Loan, Mortgaged
Property or Lease acquired by the Issuer or such Co-Issuer from an Affiliate
pursuant to a Purchase and Sale Agreement which is subject to the Performance
Undertaking. Such representations and warranties shall be made in the
applicable Series Supplement or in a separate certificate delivered by the
applicable Issuers in connection with such New Issuance or substitution.


 


(b)                                 Without the express
prior written consent of each Insurer, no Mortgaged Property added to the
Collateral Pool may be operated as a convenience store and gasoline
station, gasoline station, beauty parlor or tattoo parlor.


 


ARTICLE III



SATISFACTION AND DISCHARGE


 


Section 3.01                            Satisfaction
and Discharge of Indenture.


 


This Indenture shall cease to be of further effect except as to (i) any
surviving rights herein expressly provided for, including any rights of
transfer or exchange of Notes herein expressly provided for, (ii) in the
case of clause (1)(B) below, the rights of the Noteholders
hereunder to receive payment of the Note Principal Balance of and interest on
the Notes and any other rights of the Noteholders hereunder, and (iii) the
provisions of Section 3.02, when


 


(1)                                  either:
(A) all Notes theretofore authenticated and delivered (other than (i) Notes
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.07 and (ii) Notes for which payment
of money has theretofore been deposited in the Payment Account by the Indenture
Trustee and thereafter repaid to the Issuers or discharged from such trust, as
provided in Section 5.10) have been delivered to the Note Registrar
for cancellation; or (B) all such Notes not theretofore delivered to the
Note Registrar for cancellation (i) have become due and payable, or (ii) will
become due and payable on the next Payment Date, and in the case of clause
(B)(i) or (B)(ii) above, cash in an amount sufficient to
pay and discharge the entire indebtedness on such Notes not theretofore
delivered to the Note Registrar for cancellation or sufficient to pay the Note
Principal Balance thereof and any interest thereon


 


43

















 


accrued to the date of such
deposit (in the case of Notes which have become due and payable) or to the end
of the related Accrual Period for the next Payment Date has been deposited with
the Indenture Trustee as trust funds in trust for these purposes;


 


(2)                                  the
Issuers have paid or caused to be paid all other sums payable or reasonably
expected to become payable by such Issuers to the Indenture Trustee, the
Collateral Agent, the Property Manager, the Special Servicer, the Back-Up
Manager, each of the Insurers, each of the Rating Agencies, each of the other
Persons to which amounts are payable hereunder and each of the Noteholders (in
each case, if any) and all applicable statute of limitation periods for all
applicable preference actions with respect to the Issuers, Spirit Finance and
any Originator have expired, during which time no preference action has been
commenced seeking to avoid the payment of any amount with respect to the
Insured Obligations;


 


(3)                                  the
Insurance Policies have all terminated in accordance with their terms;


 


(4)                                  the
Issuers have delivered to the Indenture Trustee an Officer’s Certificate (upon
which the Indenture Trustee may rely) stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with; and


 


(5)                                  the
Issuers have furnished to the Indenture Trustee a Tax Opinion with respect to
the actions contemplated by this Section 3.01;


 


provided, however, that if, at any time
after the payment that would have otherwise resulted in the satisfaction and
discharge of this Indenture and such obligations, such payment is rescinded or
must otherwise be returned for any reason, effective upon such rescission or
return such satisfaction and discharge of this Indenture and such obligations
shall automatically be deemed never to have occurred and this Indenture and
such obligations shall be deemed to be in full force and effect.


 


Notwithstanding the foregoing, the obligations of the Issuers to the
Indenture Trustee under Section 5.04 hereof and the obligations of
the Indenture Trustee to the Noteholders and the Insurers under Section 3.02
hereof shall survive satisfaction and discharge of this Indenture.


 


Section 3.02                            Application
of Trust Money.


 


Subject to the provisions of Section 2.11, Section 5.10
and Section 7.01, all Cash deposited with the Indenture Trustee
pursuant to Section 3.01 shall be held in the Payment Account and
applied by the Indenture Trustee, in accordance with the provisions of the
Notes and this Indenture, to pay to the Persons entitled thereto the amounts to
which such Persons are entitled pursuant to the provisions hereof.


 


44

















 


ARTICLE IV



EVENTS OF DEFAULT; REMEDIES


 


Section 4.01                            Events
of Default.


 


“Event of Default,” wherever
used herein with respect to the Notes of any Series, means 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):


 


(a)                                  a draw is made on an Insurance Policy;


 


(b)                                 unless
otherwise specified in the related Series Supplement, the failure of any
Issuer to pay interest on any
related Notes on any Payment Date (without giving effect to the applicable
Insurance Policy);


 


(c)                                  the
failure of any Issuer to retire any related Class of Notes on the
applicable Legal Final Payment Date (without giving effect to the applicable
Insurance Policy);


 


(d)                                 any
material default in the observance or performance of any material covenant or
agreement of the Issuers made in this Indenture
or any related Mortgage (other than a covenant or agreement, a default in the
observance or performance of which is elsewhere in this Section 4.01
specifically dealt with), which default shall continue unremedied for a period
of 60 days after there shall have been given to the Issuers by the Indenture
Trustee, or to the Issuers and the Indenture Trustee by an Insurer or by the
Noteholders holding at least 25% of the Aggregate Series Principal
Balance, a written notice specifying such default and requiring it to be
remedied;


 


(e)                                  the
impairment of the validity or effectiveness of this Indenture or the lien of
this Indenture or any Mortgage, the subordination of the lien of any such
Mortgage, the creation of any lien or other encumbrance on any part of the
Collateral Pool in addition to the lien of any such Mortgage or the failure of
the lien of any such Mortgages to constitute a valid first priority perfected
security interest in the Collateral included in the Collateral Pool, in each
case subject to liens expressly permitted under the terms of the Property
Management Agreement and the related Mortgages; provided, that if
susceptible of cure, no Event of Default shall arise pursuant to this clause
(e) until the continuation of any such default unremedied for a period
of 5 days or, with respect to the lien of any Mortgage, 30 days after receipt
by the Issuers of notice thereof;


 


(f)                                    a
material breach of the representations and warranties of any Issuer contained
in Section 9.04;


 


(g)                                 a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present or future
federal or state bankruptcy, insolvency or similar law or appointing a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities and reorganization or


 


45

















 


similar
proceedings, or for the winding up or liquidation of its affairs, shall have
been entered against any Issuer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days;


 


(h)                                 any
Issuer shall voluntarily file a petition for bankruptcy, reorganization,
assignment for the benefit of creditors or similar proceeding or consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities, or similar proceedings
of, or relating to, such Issuer or of, or relating to, all or substantially all
of the assets of the Issuers; or


 


(i)                                     the
Mortgaged Properties are transferred or encumbered other than as provided in
this Indenture or the Property Management Agreement.


 


Section 4.02                            Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default should occur and be continuing, the Indenture
Trustee shall, at the written direction of the Requisite Global Majority (which
shall have the right, but not the obligation, to direct the Indenture Trustee
to accelerate the Notes and, subject to the provisions of this Indenture, cause
the foreclosure and sale of the Collateral included in the Collateral Pool),
declare all of the Notes to be immediately due and payable. In the event a draw
under an Insurance Policy is made with respect to the Class of any
applicable Series, the Indenture Trustee shall, at the direction of the
applicable Insurer (which will have the right, but not the obligation, to
direct the Indenture Trustee to accelerate the Notes and, subject to the
provisions of this Indenture, cause the foreclosure and sale of the Collateral
included in the Collateral Pool), declare all of the Notes to be immediately
due and payable.


 


At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due in respect of the
Notes has been obtained by the Indenture Trustee as hereinafter provided in
this Article IV, the Requisite Global Majority (or applicable
Insurer if the related Event of Default is based on Section 4.01(a))
may rescind and annul such declaration and its consequences if:


 


(i)                                     the
Issuers have paid or deposited with the Indenture Trustee a sum sufficient to
pay:


 


(A)                              all
payments of principal of and interest on the Notes and all other amounts that
would, in each case, then be due hereunder or upon the Notes if the Event of
Default giving rise to such acceleration had not occurred; and


 


(B)                                all
sums paid or advanced by the Indenture Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
counsel; and


 


(ii)                                  all
Events of Default, other than the nonpayment of the principal of the Notes that
has become due solely by virtue of such acceleration, have been cured or waived
as provided in Section 4.12.


 


46

















 


No such rescission and annulment shall affect any subsequent default or
impair any right consequent thereto.


 


Section 4.03                            Collection
of Indebtedness and Suits for Enforcement by Indenture Trustee.


 


(a)                                  If
the Issuers fail to pay all amounts due upon an acceleration of the Notes under
Section 4.02 forthwith upon demand and such declaration and its
consequences shall not have been rescinded and annulled, the Indenture Trustee,
in its capacity as Indenture Trustee and as trustee of an express trust, shall,
if directed by the Requisite Global Majority (which will have the right, but
not the obligation, to direct the Indenture Trustee to cause the foreclosure
and sale of the Collateral in the Collateral Pool), institute a judicial
proceeding for the collection of the sums so due and unpaid, prosecute such
proceeding to judgment or final decree and enforce the same against the Issuers
or any other obligor upon such Notes and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the Collateral, wherever
situated, or may institute and prosecute such non-judicial proceedings in
lieu of judicial proceedings as are then permitted by applicable law.


 


(b)                                 If
an Event of Default occurs and is continuing, the Indenture Trustee may, in its
discretion and in any order, proceed to protect and enforce its rights and the
rights of the Noteholders and the Insurers 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 any Mortgage or by law.


 


(c)                                  In
case (x) there shall be pending, relative to the Issuers or any Person having
or claiming an interest in the Collateral Pool, proceedings under Title 11 of
the United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, (y) a receiver, assignee, debtor-in-possession
or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or shall have taken possession of any
Issuers or its property or such Person or (z) there shall be pending a
comparable judicial proceeding brought by creditors of any Issuer or affecting
the property of such Issuer, the Indenture Trustee, irrespective of whether the
principal of or interest on 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, shall be entitled and empowered, by intervention in such proceedings
or otherwise:


 


(i)                                     to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Notes and amounts owing to the Insurers 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 attorneys, 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
willful misconduct, negligence or bad faith of the Indenture


 


47

















 


Trustee or any predecessor
Indenture Trustee, as applicable) and of the Noteholders allowed in such
proceedings;


 


(ii)                                  unless
prohibited by applicable law and regulations, to vote on behalf of the
Noteholders 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, of the Insurers and of the Indenture Trustee on their and
its behalf; and


 


(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 any Issuer, its
creditors and its property;


 


and any trustee, receiver, liquidator, custodian or other similar
official in any such proceeding is hereby authorized by each of Noteholders and
the Insurers 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 or the Insurers, 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 attorneys, 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
willful misconduct, negligence or bad faith of the Indenture Trustee or
predecessor Indenture Trustee.


 


(d)                                 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 related Noteholder 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.


 


(e)                                  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 Noteholders, and it shall not be necessary to make any
Noteholder a party to any such proceedings.


 


(f)                                    All
rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Indenture Trustee without the possession of any
of the Notes or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Indenture Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its counsel, be for the
ratable benefit of the Noteholders in respect of which such judgment has been
recovered, subject to the payment priorities of Section 2.11(b).


 


48

















 


Section 4.04                            Remedies.


 


If an Event of Default has occurred and is continuing, and the Notes
have been declared due and payable pursuant to Section 4.02 and
such declaration and its consequences shall not have been rescinded and
annulled, the Indenture Trustee shall, at the written direction of the
Requisite Global Majority, in addition to performing any tasks as provided in Section 4.03, do one or more of the following:


 


(a)                                  institute,
or cause to be instituted, Proceedings for the collection of all amounts then
payable on or under the Collateral or this Indenture with respect to the Notes,
whether by declaration of acceleration or otherwise, of the sums due and
unpaid, prosecute such Proceedings, enforce any judgment obtained and collect
from the Collateral included in the Collateral Pool the moneys adjudged to be
payable;


 


(b)                                 liquidate,
or cause to be liquidated, all or any portion of the Collateral Pool at one or
more public or private sales called and conducted in any manner permitted by
applicable laws; provided, however, that the Indenture Trustee
shall give the Issuers written notice of any private sale called by or on
behalf of the Indenture Trustee pursuant to this Section 4.04(b) at
least 10 days prior to the date fixed for such private sale;


 


(c)                                  institute,
or cause to be instituted, Foreclosure Proceedings with respect to all or part of
the Collateral included in the Collateral Pool;


 


(d)                                 exercise,
or cause to be exercised, any remedies of a secured party under the UCC;


 


(e)                                  maintain
the lien of this Indenture and the Mortgages over the Collateral included in
the Collateral Pool and, in its own name or in the name of the Issuers or
otherwise, collect and otherwise receive in accordance with the Property
Management Agreement or this Indenture any money or property at any time
payable or receivable on account of or in exchange for the Mortgage Loans,
Mortgaged Properties and Leases in the Collateral Pool;


 


(f)                                    take
any other appropriate action to protect and enforce the rights and remedies of
the Indenture Trustee hereunder; and


 


(g)                                 exercise,
or cause to be exercised, any remedies contained in any Mortgage;


 


provided, however, that the Indenture
Trustee shall not, unless required by law, sell or otherwise liquidate all or
any portion of the Collateral Pool following any Event of Default except in
accordance with Section 4.15; provided, further,
that, with respect to instituting any remedies pursuant to this Section 4.04
in any state wherein the law prohibits more than one “judicial action” or “one form of
action” to enforce a mortgage obligation, the Indenture Trustee shall enforce
any of the Indenture Trustee’s rights hereunder with respect to any Mortgaged
Properties in accordance with the directions of the Property Manager.


 


49

















 


In the event that the Indenture Trustee, following an Event of Default
hereunder, institutes Foreclosure Proceedings, the Indenture Trustee shall
promptly give a notice to that effect to the Issuers, the Insurers and each
Rating Agency.


 


Section 4.05                            Application
of Money Collected.


 


Any money collected by the Indenture Trustee pursuant to this Article shall
be deposited in the Payment Account and, on each Payment Date, shall be applied
in accordance with Section 2.11 and, in case of the distribution of
such money on account of the principal of or interest on the Notes, upon
presentation and surrender of the Notes if fully paid.


 


Section 4.06                            Limitation
on Suits.


 


Except as provided in Section 4.07, no Noteholder 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:


 


(1)                                  such
Noteholder has previously given written notice to the Indenture Trustee of a
continuing Event of Default;


 


(2)                                  the
Noteholders holding more than 50% of the Aggregate Series Principal
Balance shall have made written request to the Indenture Trustee to institute
proceedings in respect of such Event of Default in its own name as Indenture
Trustee hereunder;


 


(3)                                  such
Noteholder has offered to the Indenture Trustee adequate indemnity or security
satisfactory to the Indenture Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;


 


(4)                                  the
Indenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity or security has failed to institute any such proceeding;


 


(5)                                  no
direction inconsistent with such written request has been given to the
Indenture Trustee during such 60-day period by the Requisite Global Majority;
and


 


(6)                                  an
Event of Default shall have occurred and be continuing;


 


it being understood and intended that no one or more of such
Noteholders shall have any right in any manner whatever by virtue of, or by
availing itself or themselves of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Noteholders, or to obtain
or to seek to obtain priority or preference over any other of such Noteholders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all of such Noteholders.
Subject to the foregoing restrictions, the Noteholders may exercise their
rights under this Section 4.06 independently.


 


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Section 4.07                            Unconditional
Right of Noteholders to Receive Principal and Interest.


 


Notwithstanding any other provision in this Indenture, the Holder of
any Note at Maturity shall have the right, which is absolute and unconditional,
to receive payments of interest, principal and other amounts then due on such
Note (subject to Section 2.11) and to institute suit for the
enforcement of any such payment (subject to Section 4.06), and such
rights shall not be impaired without the consent of such Noteholder, unless a
non-payment has been cured pursuant to the second paragraph of Section 4.02.
The Issuers shall, however, be subject to only one consolidated lawsuit by the
Noteholders, or by the Indenture Trustee on behalf of the Noteholders, for any
one cause of action arising under this Indenture or otherwise.


 


Section 4.08                            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, waived, rescinded or abandoned for any
reason, or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case, subject to any determination in such proceeding,
the Issuers, the Indenture Trustee and the Noteholders shall 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 4.09                            Rights
and Remedies Cumulative.


 


Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in Section 2.07, no
right or remedy herein conferred upon or reserved to the Indenture Trustee, to
any of the Insurers 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 4.10                            Delay
or Omission Not Waiver.


 


No delay or omission of the Indenture Trustee, any Insurer or any
Noteholder to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Indenture or by law to the Indenture Trustee, to any of the Insurers or to the
Noteholders may be exercised from time to time, and as often as may be
deemed expedient, to the extent permitted by applicable law, by the Indenture
Trustee, any of the Insurers or the Noteholders, as the case may be.


 


Section 4.11                            Control
by Requisite Global Majority.


 


The Requisite Global Majority shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Indenture Trustee under Section 4.04, or exercising any trust or
power conferred on the Indenture Trustee (including,


 


51

















 


without limitation, the exercise of its
rights under any Account Control Agreement); provided, that such
direction shall not be in conflict with any rule of law or with this
Indenture or involve the Indenture Trustee in personal liability; and provided,
further, that the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee which is not inconsistent with such
direction. Notwithstanding the foregoing, the Requisite Global Majority will
not be required to provide, and the Indenture Trustee will not be required to
obtain, a Tax Opinion in the case of a direction by the Requisite Global
Majority to the Indenture Trustee, following an Event of Default, to realize
upon the Collateral included in the Collateral Pool by liquidating such
Collateral or otherwise.


 


Section 4.12                            Waiver
of Past Defaults.


 


Prior to the acceleration of the Maturity of the Notes, the Requisite
Global Majority may waive any past default hereunder and its consequences,
except a default:


 


(1)                                  Based
upon a draw made on an Insurance Policy, for which a waiver shall require the
consent of the applicable Insurer;


 


(2)                                  in
the distribution of principal or interest on any Note, for which a waiver shall
require the consent of Noteholders holding 100% of the aggregate Note Principal
Balance of all Notes affected thereby;


 


(3)                                  in
respect of a covenant or provision hereof which under Article VIII
cannot be modified or amended without the consent of the Holder of each Note
affected thereby, for which a waiver shall require the consent by each such
Holder;


 


(4)                                  depriving
the Indenture Trustee of a lien on any part the Collateral, for which a
waiver shall require the consent of the Indenture Trustee; or


 


(5)                                  depriving
the Indenture Trustee or the Collateral Agent of any fees, reimbursement, or
indemnification, to which the Indenture Trustee or Collateral Agent, as
applicable, is entitled, for which a waiver shall require the written consent
of the Indenture Trustee or Collateral Agent, as applicable.


 


Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon. Any costs or expenses
incurred by the Indenture Trustee in connection with such waiver shall be
reimbursable to the Indenture Trustee as an Extraordinary Expense from amounts
on deposit in the Payment Account.


 


Section 4.13                            Undertaking
for Costs.


 


All parties to this Indenture agree, and each Noteholder and Note Owner
by its acceptance of such Note or an Ownership Interest therein 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


 


52

















 


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 and expenses
based on time expended, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any
suit instituted by any Issuer, or to any suit instituted by the Indenture
Trustee, or to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate at least 25% of the Aggregate Series Principal
Balance, or to any suit instituted by any Noteholder for the enforcement of the
payment of the principal of or interest on any Note on or after the Maturity of
such Note.


 


Section 4.14                            Waiver
of Stay or Extension Laws.


 


Each 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 to take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; each Issuer (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of
such law and covenants that it will not hinder, delay or impede the exercise of
any power herein granted to the Indenture Trustee, but will suffer and permit
the exercise of every such power as though no such law had been enacted.


 


Section 4.15                            Sale
of Collateral.


 


(a)                                  The
power to effect any public or private sale of any portion of the Collateral
Pool pursuant to Section 4.03 or Section 4.04 shall not
be exhausted by any one or more sales as to any portion of the Collateral
remaining unsold, but shall continue unimpaired until either the entirety of
the Collateral Pool shall have been sold or all amounts payable on the Notes,
to the Insurers, and under this Indenture with respect thereto shall have been
paid. The Indenture Trustee may from time to time postpone any sale by
public announcement made at the time and place of such sale. The Indenture
Trustee hereby expressly waives its right to any amount fixed by law as
compensation for any such sale but such waiver does not apply to any amounts to
which the Indenture Trustee is otherwise entitled under Section 5.04.


 


(b)                                 Subject
to Section 4.15(c), the Indenture Trustee shall not sell the
Collateral included in the Collateral Pool pursuant to Section 4.03
or Section 4.04, unless:


 


(i)                                     the
Requisite Global Majority consents to or directs the Indenture Trustee to make
the related sales; or


 


(ii)                                  the
proceeds of such liquidation would be greater than or equal to the Aggregate Series Principal
Balance plus all accrued and unpaid interest, and any amounts owed to the
Insurers.


 


The foregoing provisions of this Section 4.15 shall not
preclude or limit the ability of the Indenture Trustee or its designee to
purchase all or any portion of the Collateral at any sale, public or private,
and the purchase by the Indenture Trustee or its designee of all or any


 


53

















 


portion of the Collateral at any sale shall
not be deemed a sale or disposition thereof for purposes of this Section 4.15(b).


 


(c)                                  In
the event that any Series of Notes is not fully paid on the applicable
Legal Final Payment Date, the applicable Controlling Party shall have the right
to require the sale of the Collateral, subject to Section 4.15(b) and
(d).


 


(d)                                 In
connection with a sale of all or any portion of the Collateral Pool:


 


(i)                                     any
Holder or Holders of Notes or Insurer 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
Outstanding 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 shall execute and deliver, without recourse, an appropriate
instrument of conveyance transferring its interest in any portion of the
Collateral Pool in connection with a sale thereof;


 


(iii)                               the
Indenture Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuers to transfer and convey any such Issuer’s
interest in any portion of the Collateral Pool in connection with a sale
thereof, and to take all action necessary to effect such sale;


 


(iv)                              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; and


 


(v)                                 no
purchaser or transferee at such a sale shall have been a prior owner of such
Collateral if such prior owner was Spirit Finance or an Affiliate thereof.


 


Section 4.16                            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 the Mortgages and this Indenture nor any rights or remedies of the
Indenture Trustee, any Series Enhancer or the Noteholders shall be
impaired by the recovery of any judgment by the Indenture Trustee against any
Issuer or by the levy of any execution under such judgment upon any portion of
the Collateral Pool.


 


54

















 


ARTICLE V



THE INDENTURE TRUSTEE


 


Section 5.01                            Certain
Duties and Responsibilities.


 


The Issuers hereby irrevocably constitute and appoint the Indenture
Trustee, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in place and stead
of the Issuers and in the name of the Issuers or in its own name or in the name
of a nominee, from time to time in the Indenture Trustee’s discretion, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes
of this Indenture, all as set forth in this Section.


 


(a)                                  The
rights, duties and liabilities of the Indenture Trustee in respect of this
Indenture shall be as follows:


 


(i)                                     The
Indenture Trustee shall have the full power and authority to do all things not
inconsistent with the provisions of this Indenture that it may deem
advisable in order to enforce the provisions hereof or to take any action with
respect to a default or an Event of Default hereunder, or to institute, appear
in or defend any suit or other proceeding with respect hereto, or to protect
the interests of the Noteholders and the Insurers. The Issuers shall prepare
and file or cause to be filed, at the applicable Issuers’ expense, a UCC
Financing Statement and any continuation statements, describing such Issuers as
debtor, the Indenture Trustee as secured party and the Collateral included in
the Collateral Pool as the collateral, in all appropriate locations in the
State of Delaware promptly following the initial issuance of each Series of
Notes, and within six months prior to each fifth anniversary of the original
filing. The Indenture Trustee is hereby authorized and obligated to make, at
the expense of the applicable Issuers, all required filings and refilings with
respect to which the Indenture Trustee receives written direction from an
Issuer, necessary to preserve the liens created by the Mortgages and this
Indenture as provided therein and herein. The Indenture Trustee shall not be
required to take any action to exercise or enforce the trusts hereby created
which, in the opinion of the Indenture Trustee, shall be likely to involve
expense or liability to the Indenture Trustee, unless the Indenture Trustee
shall have received an agreement satisfactory to it in its reasonable
discretion to indemnify it against such liability and expense. Except as
otherwise expressly provided herein, the Indenture Trustee shall not be
required to ascertain or inquire as to the performance or observance of any of
the covenants or agreements contained herein, or in any other instruments to be
performed or observed by the Issuers.


 


(ii)                                  Subject
to the other provisions of this Article V, the Indenture Trustee,
upon receipt of all resolutions, certificates, statements, opinions, reports,
documents, orders or other instruments furnished to the Indenture Trustee that
are specifically required to be furnished pursuant to any provisions of this
Indenture, shall examine them to determine whether they are on their face in
the form required by this Indenture to the extent expressly set forth
herein. If any such instrument is found on its


 


55

















 


face not to conform to the
requirements of this Indenture in a material manner, the Indenture Trustee
shall take such action as it deems appropriate to have the instrument
corrected. The Indenture Trustee shall not incur any liability in acting upon
any signature, notice, request, consent, certificate, opinion, or other
instrument reasonably believed by it to be genuine. In administering the trusts
hereunder, the Indenture Trustee may execute any of the trusts or powers
hereunder directly or through its agents or attorneys; provided, that it
shall remain liable for the acts of all such agents and attorneys. The
Indenture Trustee may, at its own expense (except as otherwise provided in Section 5.04),
consult with counsel, accountants and other professionals to be selected and
employed by it, and the Indenture Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the advice of
any such Person nor for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Indenture Trustee was
negligent in ascertaining the pertinent facts.


 


(iii)                               The
Indenture Trustee shall not, except as otherwise provided in Section 5.01(a)(i),
have any duty to make, arrange or ensure the completion of any recording,
filing or registration of any instrument or other document (including any UCC
Financing Statements), or any amendments or supplements to any of said
instruments or to determine if any such instrument or other document is in a form suitable
for recording, filing or registration, and the Indenture Trustee shall not have
any duty to make, arrange or ensure the completion of the payment of any fees,
charges or taxes in connection therewith.


 


(iv)                              Whenever
in performing its duties hereunder, the Indenture Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Indenture Trustee may, in the
absence of bad faith on the part of the Indenture Trustee, rely upon
(unless other evidence in respect thereof be specifically prescribed herein) an
Officer’s Certificate of the Issuers and such Officer’s Certificate shall be
full warrant to the Indenture Trustee for any action taken, suffered or omitted
by it on the faith thereof.


 


(v)                                 Except
in its capacity as successor to the Property Manager, the Indenture Trustee
shall not have any obligations to see to the payment or discharge of any liens
(other than the liens of this Indenture and the Mortgages) upon the Collateral
included in the Collateral Pool, or to see to the application of any payment of
the principal of or interest on any Note secured thereby or to the delivery or
transfer to any Person of any property released from any such lien, or to give
notice to or make demand upon any mortgagor, mortgagee, trustor, beneficiary or
other Person for the delivery or transfer of any such property. The Indenture
Trustee (and any successor trustee or co-trustee in its individual capacity)
nevertheless agrees that it will, at its own cost and expense, promptly take
all action as may be necessary to discharge any liens or encumbrances on
the Collateral included in the Collateral Pool, arising as a result of the
Indenture Trustee (or such successor trustee or co-trustee, as the case may be)
acting negligently, in bad faith or with willful misconduct in its capacity as
Indenture Trustee (or such successor trustee or co-trustee, as the case may be).


 


56

















 


(vi)                              The
Indenture Trustee shall not be concerned with or accountable to any Person for
the use or application of any deposited moneys or of any property or securities
or the proceeds thereof that shall be released or withdrawn in accordance with
the provisions hereof or of any property or securities or the proceeds thereof
that shall be released from the lien hereof or thereof in accordance with the
provisions hereof or thereof and the Indenture Trustee shall not have any
liability for the acts of other parties that are not in accordance with the
provisions hereof.


 


(b)                                 The
rights, duties and liabilities of the Indenture Trustee in respect of the
Collateral Pool and this Indenture, in addition to those set forth in Section 5.01(a),
shall be as follows:


 


(i)                                     except
during the continuance of an Event of Default with respect to the Notes, 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)                                  the
Indenture Trustee may, in the absence of bad faith on its part, 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 or any other
Transaction Document, as applicable; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty
to examine the same to determine whether or not they conform on their face
to the requirements of this Indenture, to the extent expressly set forth
herein.


 


(c)                                  Subject
to Section 4.12, in case an Event of Default known to the Indenture
Trustee with respect to the Notes has occurred and is continuing, the Indenture
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and the Mortgages, 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 his own affairs.


 


(d)                                 No
provision of this Indenture shall be construed to relieve the Indenture Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:


 


(i)                                     this
subsection shall not be construed to limit the effect of subsections
(a), (b) or (c) of this Section;


 


(ii)                                  the
Indenture Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Indenture
Trustee was negligent in ascertaining the pertinent facts;


 


(iii)                               the
Indenture Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the directions of
any applicable party pursuant to a Transaction Document, the Requisite Global
Majority, any Controlling Party or Noteholders of more than 50% (unless a lower
or higher percentage


 


57

















 


of Noteholders is expressly
permitted or required to authorize such action hereunder, in which case such
lower or higher percentage) of the Aggregate Series Principal Balance, as
the case may be, relating to the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or exercising or
omitting exercise any trust or power conferred upon the Indenture Trustee,
under this Indenture with respect to the Notes; and


 


(iv)                              the
Indenture Trustee shall not be required to take notice or be deemed to have
notice or knowledge of a default in the observance of any covenant contained in
Section 9.06 or Article X unless either (i) a
Responsible Officer of the Indenture Trustee shall have actual knowledge of
such default or (ii) written notice of such default shall have been given
by the Issuers or by any Noteholder to and received by a Responsible Officer of
the Indenture Trustee. In the absence of receipt of such notice or actual
knowledge the Indenture Trustee may conclusively assume that is no default
or Event of Default.


 


The Indenture Trustee shall perform the
duties and obligations specified to be performed by the Indenture Trustee in
the Property Management Agreement and in the other Transaction Documents.


 


Section 5.02                            Notice
of Defaults.


 


The Indenture Trustee, promptly but not later than two (2) Business
Days after a Responsible Officer of the Indenture Trustee acquires actual
knowledge of the occurrence of any default under this Indenture, shall notify
the Issuers, the Insurers, the Noteholders and the Rating Agencies of any such
default (a “Notice of Default”), unless
all such defaults known to the Indenture Trustee shall have been cured before
the giving of such notice or unless the same is rescinded and annulled, or
waived by the Requisite Global Majority pursuant to Section 4.02 or
Section 4.12. For the purpose of this Section 5.02, the
term “default” means any event which is, or after notice, direction of the Requisite
Global Majority or any Insurer or lapse of time would become, an Event of
Default with respect to the Notes.


 


Section 5.03                            Certain
Rights of Indenture Trustee.


 


Subject to the provisions of Section 5.01, in connection
with this Indenture:


 


(a)                                  the
Indenture Trustee may request and rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties as may be required by such party or parties
pursuant to the terms of this Indenture or any other Transaction Document, as
applicable;


 


(b)                                 any
request or direction of an Issuer mentioned herein shall be sufficiently
evidenced by an Issuer Request or Issuer Order and any resolution of the board
of directors of an Issuer may be sufficiently evidenced by a Resolution,
and any request or direction of an Insurer


 


58

















 


mentioned
herein shall be sufficiently evidenced by a written order or request dated and
signed in the name of such Insurer by an Authorized Officer of such Insurer;


 


(c)                                  whenever
in the administration of this Indenture the Indenture Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Indenture Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer’s Certificate;


 


(d)                                 the
Indenture Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel rendered thereby shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;


 


(e)                                  the
Indenture Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any applicable
party pursuant to a Transaction Document, the Requisite Global Majority or of
any of the Noteholders pursuant to this Indenture, unless the Requisite Global
Majority or such 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 such request or direction;


 


(f)                                    the
Indenture Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but
the Indenture Trustee in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney;


 


(g)                                 the
Indenture Trustee may, at its own expense (except as otherwise provided in Section 5.04),
execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys of the Indenture
Trustee; provided, that it shall remain liable for the acts of all such
attorneys and agents;


 


(h)                                 the
Indenture Trustee shall not be required to provide any surety or bond of any
kind in connection with the execution or performance of its duties hereunder;


 


(i)                                     except
with respect to the representations made by it in Section 5.06, the
Indenture Trustee shall not make any representations as to the validity or
sufficiency of this Indenture;


 


(j)                                     the
Indenture Trustee shall not at any time have any responsibility or liability
with respect to the legality, validity or enforceability of the Collateral
included in the Collateral Pool other than its failure to act in accordance
with the terms of this Indenture or the Property Management Agreement;


 


(k)                                  The
Indenture Trustee shall be under no obligation to exercise any of the powers
vested in it by this Indenture or any other Transaction Document, as
applicable, or to


 


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institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Noteholders, pursuant to the
provisions of this Indenture, unless such Noteholders shall have offered to the
Indenture Trustee security or indemnity satisfactory to the Indenture Trustee
against the costs, expenses and liabilities which may be incurred therein
or thereby (which in the case of the Requisite Global Majority will be deemed
to be satisfied by a letter agreement with respect to such costs from such Noteholders);
nothing contained herein shall, however, relieve the Indenture Trustee of the
obligation, upon the occurrence of an Event of Default of which a Responsible
Officer of the Indenture Trustee shall have actual knowledge, and such Event of
Default having not been cured, to exercise such of the rights and powers vested
in it by this Indenture, and to 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;


 


(l)                                     The
Indenture Trustee shall not be personally liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within
the discretion or the rights and powers conferred upon it by this Indenture; and


 


(m)                               The
right of the Indenture Trustee to perform any discretionary act enumerated
in this Indenture shall not be construed as a duty, and the Indenture Trustee
shall not be answerable for other than its own negligence or willful misconduct
in the performance of such act.


 


Section 5.04                            Compensation;
Reimbursement; Indemnification.


 


(a)                                  Subject
to Section 5.04(b), the applicable Issuers hereby agree:


 


(1)                                  to
pay or cause to be paid to the Indenture Trustee, in accordance with the terms
of this Indenture, monthly, the related Indenture Trustee Fee as compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust); and


 


(2)                                  to
reimburse, indemnify or cause to be indemnified and hold harmless the Indenture
Trustee and its directors, officers, employees, agents, Affiliates and Control
Persons for any loss, liability, claim, expense or disbursements (including
without limitation costs and expenses of litigation, and of investigation,
reasonable counsel fees, damages, judgments and amounts paid in settlement): (A) incurred
in connection with any act (including any actions taken by the Indenture
Trustee or its agents pursuant to Article IV) or omission on the part of
the Indenture Trustee with respect to this Indenture (and the transactions
contemplated in connection herewith), any other Transaction Documents, the
Collateral Pool (including but not limited to protecting its interest in such
Collateral or collecting any amount payable thereunder or in enforcing its
rights with respect to such Collateral, whether or not any legal proceeding is
commenced hereunder or under the Mortgages) or the Notes (in each case, other
than any loss, liability or expense incurred by reason of willful misfeasance,
bad faith or negligence in the performance of the Indenture Trustee’s
obligations or


 


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duties under this Indenture); (B) arising
out of or in any way relating to any one or more of the following: (i) any
accident, injury to or death of persons or loss of or damage to property
occurring in, on or about any Mortgaged Property or any part thereof or on
the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (ii) any use, nonuse or condition in, on or about any
Mortgaged Property or any part thereof or on the adjoining sidewalks,
curbs, adjacent property or adjacent parking areas, streets or ways; (iii) performance
of any labor or services or the furnishing of any materials or other property
in respect of any Mortgaged Property or any part thereof; and (iv) any
failure of any Mortgaged Property to be in compliance with any Applicable Laws;
or (C) arising out of or in any way relating to any tax on the making
and/or recording of any Mortgage.


 


With respect to any third party claim:


 


(i)                                     the
Indenture Trustee shall give the Issuers and the Insurers written notice
thereof promptly after the Indenture Trustee shall have knowledge thereof;


 


(ii)                                  while
maintaining control over its own defense, the Indenture Trustee shall cooperate
and consult fully with the Issuers in preparing such defense; and


 


(iii)                               notwithstanding
the foregoing provisions of this Section 5.04(a), the Indenture Trustee
shall not be entitled to reimbursement out of the Payment Account for
settlement of any such claim by the Indenture Trustee entered into without the
prior written consent of the applicable Issuers, which consent shall not be
unreasonably withheld.


 


The provisions of this Section 5.04(a) shall survive
the termination of this Indenture and the resignation or termination of the
Indenture Trustee.


 


The Indenture Trustee agrees to fully perform its duties under
this Indenture notwithstanding any failure on the part of any of the
Issuers to make any payments, reimbursements or indemnifications to the
Indenture Trustee pursuant to this Section 5.04(a); provided,
however, that (subject to Sections 5.04(b) and 5.04(c))
nothing in this Section 5.04 shall be construed to limit the
exercise by the Indenture Trustee of any right or remedy permitted under this
Indenture in the event of any such Issuer’s failure to pay any sums due the
Indenture Trustee pursuant to this Section 5.04.


 


(b)                                 The
obligations of the Issuers set forth in Section 5.04(a) are
nonrecourse obligations solely of the Issuers and will be payable only from the
Collateral Pool. The Indenture Trustee hereby agrees that it has no rights or
claims against the Issuers directly and shall only look to the Collateral Pool
to satisfy any Issuer’s obligations under Section 5.04(a).
Notwithstanding the provisions of Section 4.03, the Indenture
Trustee hereby agrees not to file or join in filing any petition in bankruptcy
or commence any similar proceeding in respect of any Issuer.


 


(c)                                  The
Indenture Trustee shall not institute any proceeding seeking the enforcement of
any lien against the Collateral Pool unless (i) such proceeding is in
connection


 


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with a proceeding
in accordance with Article IV hereof for enforcement of the lien of
the Mortgages and this Indenture for the benefit of the Noteholders and the
Insurers after the occurrence of an Event of Default (other than an Event of
Default due solely to a breach of this Section 5.04) and a
resulting declaration of acceleration of such Notes that has not been rescinded
and annulled, or (ii) such proceeding does not and will not result in or
cause a sale or other disposition of the Collateral included in the Collateral
Pool.


 


Section 5.05                            Corporate
Indenture Trustee Required; Eligibility.


 


The Issuers hereby agree that there shall at all times be an Indenture
Trustee hereunder which shall be a bank (within the meaning of Section 2(a)(5) of
the 1940 Act) organized and doing business under the laws of the United States
or any State thereof, authorized under such laws to exercise corporate trust
powers, having aggregate capital, surplus and undivided profits of at least
$100,000,000, and subject to supervision or examination by Federal or State
authority, the long-term unsecured debt of which is rated not lower than “A1”
by Moody’s and “A+” by S&P and the short-term debt of which is rated not
lower than “P-1” by Moody’s and “A-1” by S&P, or another institution the
retention of which satisfies the Rating Condition. If such bank publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section, the combined capital, surplus and undivided profits of such bank shall
be deemed to be its combined capital, surplus and undivided profits as set
forth in its most recent report of condition so published. The Indenture
Trustee shall at all times meet the requirements of Section 26(a)(1) of
the 1940 Act and shall in no event be an Affiliate of any Issuer or an
Affiliate of any Person involved in the organization or operation of any Issuer
or be directly or indirectly controlled by any Issuer. If at any time a
Responsible Officer of the Indenture Trustee becomes aware that the Indenture
Trustee has ceased to be eligible in accordance with the provisions of this
Section, the Indenture Trustee shall resign immediately in the manner and with
the effect hereinafter specified in this Article.


 


Section 5.06                            Authorization
of Indenture Trustee.


 


The Indenture Trustee represents and warrants as to itself: that it is
duly authorized under applicable federal law, its charter and its by-laws to
execute and deliver this Indenture, and to perform its obligations
hereunder, including, without limitation, that (assuming it is enforceable
against the other parties hereto) this Indenture constitutes its valid and
binding obligation enforceable against it in accordance with the Indenture’s
terms (subject to applicable bankruptcy and insolvency laws and general
principles of equity), that it is duly authorized to accept the Grant to it of
the Collateral included in the Collateral Pool and is authorized to
authenticate any Series of Notes, and that all corporate action necessary
or required therefor has been duly and effectively taken or obtained and all
federal and state governmental consents and approvals required with respect
thereto have been obtained.


 


The Indenture Trustee is hereby authorized to execute any Joinder
Agreements with respect to the Custody Agreement in connection with the
inclusion of a new Issuer thereunder.


 


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Section 5.07                            Merger,
Conversion, Consolidation or Succession to Business.


 


Any corporation, bank, trust company or association into which the
Indenture Trustee may be merged or converted or with which it may be
consolidated, or any corporation, bank, trust company or association resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation, bank, trust company or association
succeeding to all or substantially all the corporate trust business of the
Indenture Trustee, shall be the successor of the Indenture Trustee hereunder; provided,
that such corporation, bank, trust company or association shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.


 


Section 5.08                            Resignation
and Removal; Appointment of Successor.


 


(a)                                  No
resignation or removal of the Indenture Trustee and no appointment of a
successor Indenture Trustee pursuant to this Article shall become
effective until (i) the acceptance of appointment by the successor
Indenture Trustee in accordance with the applicable requirements of Section 5.09,
(ii) payment to the predecessor Indenture Trustee of all unpaid fees and
expenses, (iii) receipt of prior written consent from each Insurer and (iv) the
Rating Condition is satisfied.


 


(b)                                 Subject
to Section 5.08(a), the Indenture Trustee may be removed at
any time with respect to the Notes by the Requisite Global Majority and notice
of such action by the Noteholders shall be delivered to the Indenture Trustee,
the Insurers, the Issuers and the Rating Agencies.


 


(c)                                  If
at any time:


 


(i)                                     the
Indenture Trustee shall cease to be eligible under Section 5.05, or
the representations of the Indenture Trustee in Section 5.06 shall
prove to be untrue in any material respect, and the Indenture Trustee shall
fail to resign after written request therefor by the Issuers or the Noteholders
of 10% of the Aggregate Series Principal Balance; or


 


(ii)                                  the
Indenture Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Indenture Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Indenture Trustee or its property or affairs for the purpose of rehabilitation,
conservation or liquidation;


 


then, in either such case, (i) the Issuers, may by written
notice remove the Indenture Trustee, or (ii) subject to Section 4.13,
any Insurer or Noteholder may, on its own behalf and on behalf of all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.


 


(d)                                 If
the Indenture Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Indenture Trustee for any reason
(including removal), the Issuers, with the consent of the Requisite Global
Majority, shall promptly appoint a


 


63

















 


successor
Indenture Trustee, who shall comply with the applicable requirements of Section 5.09.
If, within 60 days after such resignation, or incapacity, or the occurrence of
such vacancy, a successor Indenture Trustee shall not have been appointed by
the Issuers and shall not have accepted such appointment in accordance with the
applicable requirements of Section 5.09, then a successor Indenture
Trustee shall be appointed by act of the Requisite Global Majority delivered to
the Issuers and the retiring Indenture Trustee, and the successor Indenture
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 5.09,
become the successor Indenture Trustee with respect to the Notes. If the
Indenture Trustee shall resign pursuant to this Section 5.08, then
such resigning Indenture Trustee must pay all costs and expenses associated
with the transfer of its duties. If the Indenture Trustee shall be removed
pursuant to this Section 5.08, then the party requesting such
removal of the Indenture Trustee shall pay all costs and expenses associated
with the transfer of its duties.


 


If, within 120 days after such resignation, removal or incapacity, or
the occurrence of such vacancy, no successor Indenture Trustee shall have been
so appointed and accepted appointment in the manner required by Section 5.09,
the resigning Indenture Trustee may, on its own behalf, petition any court of
competent jurisdiction for the appointment of a successor Indenture Trustee.


 


(e)                                  The
Issuers shall give notice of any resignation or removal of the Indenture
Trustee and the appointment of a successor Indenture Trustee by giving notice
of such event to the Rating Agencies, the Insurers and the Noteholders. Each
notice shall include the name of the successor Indenture Trustee and the
address of its corporate trust office.


 


Section 5.09                            Acceptance
of Appointment by Successor.


 


In case of the appointment hereunder of a successor Indenture Trustee,
the successor Indenture Trustee so appointed shall execute, acknowledge and
deliver to the Issuers and to the retiring Indenture Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Indenture Trustee shall become effective and such successor Indenture
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Indenture Trustee;
but, on the request of the Issuers or the successor Indenture Trustee, such
retiring Indenture Trustee shall, upon payment of its fees, execute and deliver
an instrument transferring to such successor Indenture Trustee all the rights,
powers and trusts of the retiring Indenture Trustee, shall duly assign,
transfer and deliver to such successor Indenture Trustee all property and money
held by such retiring Indenture Trustee hereunder, and shall take such action
as may be requested by the Issuers to provide for the appropriate interest
in the Collateral Pool (including, without limitation, the Mortgages) to be
vested in such successor Indenture Trustee, but shall not be responsible for
the recording of such documents and instruments as may be necessary to
give effect to the foregoing.


 


Upon request of any such successor Indenture Trustee, the Issuers shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Indenture Trustee all such rights, powers and
trusts referred to in this Section.


 


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No successor Indenture Trustee shall accept its appointment unless at
the time of such acceptance such successor Indenture Trustee shall be qualified
and eligible under this Article.


 


Section 5.10                            Unclaimed
Funds.


 


The Indenture Trustee is required to hold any payments received by it
with respect to the Notes that are not paid to the Noteholders in trust for the
Noteholders. Notwithstanding the foregoing, at the expiration of three years
following the Final Payment Date for any Class of Notes of any Series and
with the prior written consent of each Insurer, any moneys set aside in accordance
with Section 2.11(b) for payment of principal, interest and
other amounts on such Notes remaining unclaimed by any lawful owner thereof,
and, to the extent required by applicable law, any accrued interest thereon
shall be remitted to the applicable Issuers, as their interest may appear,
to be held in trust by such Issuers for the benefit of the applicable
Noteholder until distributed in accordance with applicable law, and all
liability of the Indenture Trustee with respect to such money shall thereupon
cease; provided, that the Indenture Trustee, before being required to
make any such remittance, may, at the expense of the applicable Noteholder,
payable out of such unclaimed funds, to the extent permitted by applicable law,
and otherwise at the expense of the applicable Issuers payable out of the
Collateral Pool, cause to be published at least once but not more than three
times in two newspapers in the English language customarily published on each
Business Day and of general circulation in New York, New York, a notice to the
effect that such moneys remain unclaimed and have not been applied for the
purpose for which they were deposited, and that after a date specified therein,
which shall be not less than 30 days after the date of first publication of
said notice, any unclaimed balance of such moneys then remaining in the hands
of the Indenture Trustee will be paid to the applicable Issuers upon their
written directions to be held in trust for the benefit of the applicable
Noteholder until distributed in accordance with applicable law. Any successor
to an Issuer through merger, consolidation or otherwise or any recipient of
substantially all the assets of an Issuer in a liquidation of such Issuer shall
remain liable for the amount of any unclaimed balance paid to such Issuer
pursuant to this Section 5.10.


 


Section 5.11                            Illegal
Acts.


 


No provision of this Indenture or any amendment or supplement hereto
shall be deemed to impose any duty or obligation on the Indenture Trustee to do
any act in the performance of its duties hereunder or to exercise any right,
power, duty or obligation conferred or imposed on it, which under any present
or future law shall be unlawful, or which shall be beyond the corporate powers,
authorization or qualification of the Indenture Trustee.


 


Section 5.12                            Communications
by the Indenture Trustee.


 


The Indenture Trustee, if any principal of or interest on any Notes due
and payable hereunder is not paid, shall send to the applicable Issuers, within
one (1) Business Day after the Maturity thereof, a written demand for
payment thereon.


 


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Section 5.13                            Separate
Indenture Trustees and Co-Trustees.


 


(a)                                  Notwithstanding
any other provisions of this Indenture, at any time, for the purpose of meeting
legal requirements applicable to it in the performance of its duties hereunder,
the Indenture Trustee shall have the power to, and shall execute and deliver
all instruments to, appoint one or more Persons to act as separate trustees or
co-trustees hereunder, jointly with the Indenture Trustee, of any portion of
the Collateral Pool subject to this Indenture, and any such Persons shall be
such separate trustee or co-trustee, with such powers and duties consistent
with this Indenture as shall be specified in the instrument appointing such
Person but without thereby releasing the Indenture Trustee from any of its
duties hereunder. If the Indenture Trustee shall request the Issuers to do so,
the Issuers shall join with the Indenture Trustee in the execution of such
instrument, but the Indenture Trustee shall have the power to make such
appointment without making such request. A separate trustee or co-trustee
appointed pursuant to this Section 5.13 need not meet the
eligibility requirements of Section 5.05.


 


(b)                                 Every
separate trustee and co-trustee shall, to the extent not prohibited by law, be
subject to the following terms and conditions:


 


(i)                                     the
rights, powers, duties and obligations conferred or imposed upon such separate
or co-trustee shall be conferred or imposed upon and exercised or performed by
the Indenture Trustee and such separate or co-trustee jointly, as shall be
provided in the appointing instrument, except to the extent that under any law
of any jurisdiction in which any particular act is to be performed any
nonresident trustee shall be incompetent or unqualified to perform such
act, in which event such rights, powers, duties and obligations shall be
exercised and performed by such separate trustee or co-trustee at the direction
of the Indenture Trustee;


 


(ii)                                  all
powers, duties, obligations and rights conferred upon the Indenture Trustee, in
respect of the custody of all cash deposited hereunder shall be exercised
solely by the Indenture Trustee; and


 


(iii)                               the
Indenture Trustee may at any time by written instrument accept the
resignation of or remove any such separate trustee or co-trustee, and, upon the
request of the Indenture Trustee, the Issuers shall join with the Indenture
Trustee in the execution, delivery and performance of all instruments and
agreements necessary or proper to make effective such resignation or removal,
but the Indenture Trustee shall have the power to accept such resignation or to
make such removal without making such request. A successor to a separate
trustee or co-trustee so resigning or removed may be appointed in the
manner otherwise provided herein.


 


(c)                                  Such
separate trustee or co-trustee, upon acceptance of such trust, shall be vested
with the estates or property specified in such instruments, jointly with the
Indenture Trustee, and the Indenture Trustee shall take such action as may be
necessary to provide for (i) the appropriate interest in the Collateral
Pool to be vested in such separate trustee or co-trustee, and (ii) the
execution and delivery of any transfer documentation or bond powers that may be
necessary to give effect to the transfer of the lien of this Indenture and the
Mortgages to the co-trustee. Any separate trustee or co-trustee may, at any
time, by written instrument constitute the


 


66

















 


Indenture
Trustee, its agent or attorney-in-fact with full power and authority, to the
extent permitted by law, do all acts and things and exercise all discretion
authorized or permitted by it, for and on behalf of it and in its name. If any
separate trustee or co-trustee shall be dissolved, become incapable of acting,
resign, be removed or die, all the estates, property, rights, powers, trusts,
duties and obligations of said separate trustee or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Indenture Trustee,
without the appointment of a successor to said separate trustee or co-trustee,
until the appointment of a successor to said separate trustee or co-trustee is
necessary as provided in this Indenture.


 


(d)                                 Any
notice, request or other writing, by or on behalf of any Insurer or Noteholder,
delivered to the Indenture Trustee shall be deemed to have been delivered to
all separate trustees and co-trustees.


 


(e)                                  Although
co-trustees may be jointly liable, no co-trustee or separate trustee shall
be severally liable by reason of any act or omission of the Indenture Trustee
or any other such trustee hereunder.


 


(f)                                    No
appointment of a separate trustee or co-trustee pursuant to this Section 5.13
shall relieve the Indenture Trustee of any of its obligations, duties or
responsibilities hereunder in any way or to any degree.


 


ARTICLE VI



REPORTS TO NOTEHOLDERS


 


Section 6.01                            Reports
to Noteholders and Others.


 


(a)                                  Based
on information with respect to the Mortgage Loans, Mortgaged Properties and
Leases provided to the Indenture Trustee by the Property Manager and the
Special Servicer pursuant to the Property Management Agreement (and the
Indenture Trustee’s calculations based on such information and the Indenture
Trustee’s records with respect to the Notes), the Indenture Trustee shall
prepare, or cause to be prepared, and make available either in electronic
format or by first class mail on each Payment Date, or as soon thereafter
as is practicable, to the Issuers, the Insurers, the Initial Purchasers, the
Rating Agencies, each Noteholder and any other Person upon the direction of any
Issuer a statement in respect of the payments made on such Payment Date setting
forth the information set forth in Exhibit B hereto (the “Trustee Report”). The Indenture Trustee
shall promptly make each Trustee Report available via the Indenture Trustee’s
internet website to any Noteholder, Note Owner or prospective investor upon
receipt by the Indenture Trustee from such person of a certification in the form of
Exhibit E-1 or E-2 attached hereto, as applicable, and to
the Insurers, the Issuers, designees of the Issuers, the Property Manager, the
Special Servicer, the Back-Up Manager, any Sub-Manager, the Rating Agencies and
the Initial Purchasers. The Indenture Trustee’s internet website will be
located at “http://www.sf.citidirect.com” or at such other address as the
Indenture Trustee shall notify the parties hereto from time to time. For
assistance with the Indenture Trustee’s internet website, Noteholders may call
(800) 422-2066.


 


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In connection with providing access to the Indenture Trustee’s internet
website, the Indenture Trustee shall require registration and the acceptance of
a disclaimer as well as the delivery of a request for information,
substantially in the form of Exhibit E-1 or Exhibit E-2,
as applicable. The Indenture Trustee shall not be liable for having
disseminated information in accordance with this Indenture.


 


The Indenture Trustee shall be entitled to rely on and shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto
any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).


 


(b)                                 Within
a reasonable period of time after the end of each calendar year (but in no
event more than 60 days following the end of such calendar year), the Indenture
Trustee shall prepare, or cause to be prepared, and make available either in
electronic format or by first class mail to each Person who at any time
during the calendar year was a Noteholder (i) a statement containing the
aggregate amount of principal and interest payments on the Notes for such
calendar year or applicable portion thereof during which such person was a
Noteholder and (ii) such other customary information as the Indenture
Trustee deems necessary or desirable for Noteholders to prepare their federal,
state and local income tax returns including, without limitation (and to the
extent provided to it by the Issuers which shall so cause such information to
be provided), the amount of original issue discount accrued on the Notes, if applicable.
The obligations of the Indenture Trustee in the immediately preceding sentence
shall be deemed to have been satisfied to the extent that substantially
comparable information has been provided by the Indenture Trustee.


 


Section 6.02                            Certain
Communications with the Rating Agencies.


 


Upon request by any Rating Agency, the Indenture Trustee shall make
available or send, in the case of all material items, and shall endeavor to
make available or send, in the case of all other items, a copy of each supplement,
notice, certificate, request, demand, financial statement and amortization schedule sent
by it or received by it pursuant to or in connection with this Indenture or the
Collateral Pool or any part thereof, other than statements of the
Indenture Trustee’s fees and expenses sent by it to the Issuers and any other
communications of a similar and solely administrative nature in the Indenture
Trustee’s sole opinion, to such Rating Agency and the Insurers.


 


Section 6.03                            Access
to Certain Information.


 


(a)                                  The
Indenture Trustee shall afford to the Issuers, the Property Manager, the
Special Servicer, the Back-Up Manager, the Insurers, the OTS, the FDIC and any
other banking or insurance regulatory authority that may exercise
authority over any Noteholder, access to any documentation regarding the
Collateral Pool within its control that may be required to be provided by
this Indenture or by applicable law. Such access shall be afforded without
charge but only upon reasonable prior written request and during normal
business hours at the offices of the Indenture Trustee designated by it.


 


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(b)                                 The
Indenture Trustee shall maintain at its office primarily responsible for
administration of the Collateral Pool and shall deliver to the Issuers, the
Insurers, the Rating Agencies and, subject to the succeeding paragraph, any
Noteholder or Note Owner or Person identified to the Indenture Trustee as a
prospective transferee of a Note or an Ownership Interest therein (at the
reasonable request and, except for the Rating Agencies, expense of the
requesting party), copies of the following items (to the extent that such items
have been delivered to the Indenture Trustee or the Indenture Trustee can cause
such items to be delivered to it without unreasonable burden or expense): (i) any
private placement memorandum or disclosure document relating to the applicable
Notes, in the form most recently provided to the Indenture Trustee by the
applicable Issuers or by any Person designated by such Issuers; (ii) this
Indenture, the LLC Agreements, the Property Management Agreement, any Purchase
and Sale Agreements and any amendments hereto or thereto; (iii) all
reports prepared by, and all reports delivered to, the Indenture Trustee, the Property
Manager, the Special Servicer or the Back-Up Manager in such capacities since
the Initial Closing Date; (iv) all Officer’s Certificates delivered by the
Property Manager and the Special Servicer since the Initial Closing Date
pursuant to Section 3.13 of the Property Management Agreement and all
Officer’s Certificates delivered by the Issuers since the Initial Closing Date
pursuant to Section 9.07; (v) all accountants’ reports caused
to be delivered by the Property Manager and the Special Servicer since the
Initial Closing Date pursuant to Section 3.14 of the Property Management
Agreement; (vi) all Determination Date Reports, Special Servicer Reports
and Modified Collateral Detail and Realized Loss Reports (each, as defined in
the Property Management Agreement) since the Initial Closing Date prepared
pursuant to Section 4.01 of the Property Management Agreement; (vii) the
Loan Files and the Lease Files, including any and all modifications, waivers
and amendments of the terms of each Mortgage Loan or Lease entered into or
consented to by the Property Manager or the Special Servicer and delivered to
the Indenture Trustee pursuant to Section 3.19 of the Property Management
Agreement or otherwise; and (viii) any and all Officer’s Certificates and
other evidence to support the Property Manager’s or the Special Servicer’s, as
the case may be, determination that any Property Protection Advance was
or, if made, would be a Nonrecoverable Property Protection Advance. The
Indenture Trustee shall make available copies of any and all of the foregoing
items upon request of any party set forth in the previous sentence. However,
the Indenture Trustee shall be permitted to require of such party the payment
of a sum sufficient to cover the reasonable costs and expenses of providing
such copies as are requested by such party.


 


If requested by any Noteholder or an Insurer, the Indenture Trustee (to
the extent it is able to obtain such information from the Property Manager)
shall provide: (i) the most recent inspection report prepared by the
Property Manager or the Special Servicer in respect of each Mortgaged Property
pursuant to Section 3.12(a) of the Property Management Agreement; (ii) the
most recent available operating statement and financial statements of the
related Borrower or Tenant collected by the Property Manager or the Special
Servicer pursuant to Section 3.12(b) of the Property Management
Agreement, together with the accompanying written reports to be prepared by the
Property Manager or the Special Servicer, as the case may be, pursuant to Section 3.12(c) of
the Property Management Agreement; and (iii) any and all notices and
reports with respect to any Mortgaged Property as to which environmental
testing is contemplated by Section 10.08.


 


The Indenture Trustee will make available, upon reasonable advance
notice and at the expense of the requesting party, copies of the above items to
any Noteholder or Note Owner


 


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and to prospective purchasers of Notes; provided,
that, as a condition to making such items available, the Indenture Trustee
shall require (a) in the case of Noteholders or Note Owners, a
confirmation executed by the requesting Person substantially in the form of
Exhibit E-1 hereto generally to the effect that such Person is a
Noteholder or Note Owner, is requesting the information solely for use in
evaluating such Person’s investment in the related Notes and will otherwise
keep such information confidential and (b) in the case of a prospective
purchaser, confirmation executed by the requesting Person and such Person’s
prospective transferor substantially in the form of Exhibit E-2
hereto generally to the effect that such Person is a prospective purchaser of
Notes, is requesting the information solely for use in evaluating a possible
investment in such Notes and will otherwise keep such information confidential.


 


(c)                                  The
Indenture Trustee shall not be liable for any dissemination of information made
in accordance with Section 6.03(a) or (b).


 


ARTICLE VII



REDEMPTION; SERIES ENHANCEMENT


 


Section 7.01                            Redemption
of the Notes.


 


The Notes of each Series shall be subject to mandatory or optional
redemption as provided in the applicable Series Supplement.


 


Section 7.02                            Series Enhancement.


 


To manage any other risks between the Collateral Pool and the Notes of
any Series, the applicable Issuers, on or before the related Series Closing
Date, may enter into one or more types of Series Enhancement with
respect to such Series of Notes, and may from time to time thereafter
enter into additional Series Enhancements, in each case so long as the
Rating Condition is satisfied. The Series Supplement with respect to such Series of
Notes shall specify the form of Series Enhancement and Series Enhancer,
if any, and any additional terms with respect thereto.


 


ARTICLE VIII



SUPPLEMENTAL INDENTURES; AMENDMENTS


 


Section 8.01                            Supplemental
Indentures or Amendments Without Consent of Noteholders.


 


Without the consent of any Noteholder, but with the prior written
consent of each Insurer and upon 20 days’ prior written notice to the Rating
Agencies, the parties to each agreement listed below, at any time and from time
to time, may enter into one or more indentures supplemental hereto, or one
or more amendments hereto or to the Notes, the Property Management Agreement,
any Performance Undertaking or any other Transaction Documents, as applicable,
for any of the following purposes:


 


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(1)                                  to
correct any typographical error or cure any ambiguity, or to cure, correct,
amend or supplement any provision herein or in the Notes, the Property
Management Agreement, any Performance Undertaking or any other Transaction
Document;  provided, that such
action shall not adversely affect the interests of the Noteholders in any
material respect; provided, that if the Rating Condition is satisfied,
any such action shall be deemed not to materially adversely affect the
interests of any Noteholder;


 


(2)                                  to
convey, transfer, assign, mortgage or pledge any property to the Indenture
Trustee so long as the interests of the Noteholders and the Insurers would not
be adversely affected in any material respect;


 


(3)                                  to
correct any manifestly incorrect description, or amplify the description, of
any property subject to the lien of the Mortgages or this Indenture;


 


(4)                                  to
modify the Indenture, the Property Management Agreement, any Performance
Undertaking or any other Transaction Documents as required or made necessary by
any change in applicable law, so long as the interests of the Noteholders would
not be adversely affected in any material respect; provided, that if the
Rating Condition is satisfied, any such action shall be deemed not to
materially adversely affect the interests of any Noteholder;


 


(5)                                  to
add to the covenants of any Issuer, or any other party for the benefit of the
Noteholders, or to surrender any right or power conferred upon any Issuer under
this Indenture, the Property Management Agreement, any Purchase and Sale
Agreement, any Environmental Indemnity Agreement or any Performance
Undertaking;


 


(6)                                  to
add any additional Events of Default hereunder or Servicer Replacement Events
(as defined in the Property Management Agreement) under the Property Management
Agreement; provided, that such action shall not adversely affect the
interests of the Noteholders in any material respect; provided, that if
the Rating Condition is satisfied, any such action shall be deemed not to
materially adversely affect the interests of any Noteholder; or


 


(7)                                  to
evidence and provide for the acceptance of appointment by a successor Indenture
Trustee, Property Manager, Special Servicer, Collateral Agent, Custodian or
Back-Up Manager.


 


No such supplemental indenture or amendment shall be effective unless
the Indenture Trustee and each Insurer shall have first received a Tax Opinion
to the effect that such amendment will not (i) cause any Class of
Notes of any Series that was characterized as debt, as of the applicable Series Closing
Dates, to be characterized other than as indebtedness for U.S. federal income
tax purposes, or (ii) cause or constitute an event in which any U.S.
federal income tax gain or loss would be recognized by any Noteholder or any
Issuer.


 


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Without the consent of any Noteholder, but with the prior written
consent of each Insurer and upon 20 days’ prior written notice to the Rating
Agencies, the Issuers and the Indenture Trustee, at any time and from time to
time, may enter into one or more amendments to any Account Control
Agreement and the Indenture Trustee is authorized to enter into any such
amendment at the direction of any Insurer (so long as no Insurer Default with
respect to such Insurer has occurred and is continuing).


 


Section 8.02                            Supplemental
Indentures With Consent.


 


With the consent of the Controlling Party of each Series (in the
case of any Insurer Default that has occurred and is continuing, a decision of
the Holders of not less than 66 2/3% of the Aggregate Series Principal
Balance will be necessary with respect to any actions to be taken by such
Controlling Parties), and 20 days’ prior written notice to the Rating Agencies,
the parties to the agreements listed below may enter into one or more
indentures supplemental hereto, or one or more amendments hereto or to the
Notes, the Property Management Agreement, any Performance Undertaking or any
other Transaction Document for the purpose of adding any provisions hereto or
thereto, changing in any manner or eliminating any of the provisions hereof or
thereof or modifying in any manner the rights of the Noteholders hereunder or
thereunder; provided, that no such supplemental indenture or amendment
shall be effective unless the Indenture Trustee and each Insurer shall have
first received a Tax Opinion to the effect that such amendment will not (i) cause
any Class of Notes of any Series that was characterized as debt as of
the applicable Series Closing Date to be characterized other than as
indebtedness for federal income tax purposes or (ii) cause or constitute
an event in which any U.S. federal income tax gain or loss would be recognized
by any Noteholder or any Issuer; and provided, further, that no
such supplemental indenture or amendment may, without the consent of the
Noteholders of 100% of the Aggregate Series Principal Balance of the
Outstanding Notes affected thereby:


 


(1)                                  change
a Legal Final Payment Date or Rated Final Payment Date or the Payment Date of
any principal, interest or other amount on any Note;


 


(2)                                  reduce
the Note Principal Balance of a Note, or the applicable Note Rate;


 


(3)                                  authorize
the Indenture Trustee to agree to delay the timing of, or reduce the payments
to be made on or in respect of, the Mortgage Loans, the Mortgaged Properties or
the Leases, except as provided in this Indenture, in the Property Management
Agreement or in any Purchase and Sale Agreement;


 


(4)                                  change
the coin or currency in which the principal of any Note or interest thereon is
payable;


 


(5)                                  impair
the right to institute suit for the enforcement of any such payment on or after
a Legal Final Payment Date;


 


(6)                                  reduce
the percentage of the then Aggregate Series Principal Balance, the consent
of whose Holders is required for any supplemental indenture or amendment, or
the consent of whose Holders is required for any


 


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waiver of defaults under this
Indenture and their consequences provided for in this Indenture, or for any
other reason under this Indenture;


 


(7)                                  change
any obligation of the Issuers to maintain an office or agency in the places and
for the purposes set forth in this Indenture;


 


(8)                                  except
as otherwise expressly provided in this Indenture, in the Property Management
Agreement, in any Purchase and Sale Agreement or in any Mortgage, deprive the
Indenture Trustee of the benefit of a first priority security interest in the
Collateral included in the Collateral Pool;


 


(9)                                  modify
Section 2.11; or


 


(10)                            release
from the lien of any Mortgage, the related Purchase and Sale Agreement and this
Indenture (except as specifically permitted under this Indenture, the Property
Management Agreement, the related Purchase and Sale Agreement or the related
Mortgage) all or any portion of the Collateral Pool.


 


It shall not be necessary for the consent of the Noteholders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.


 


Notwithstanding anything to the contrary in this Indenture, none of the
above-referenced Transaction Documents may be amended without the consent
of the Property Manager, the Special Servicer or the Back-Up Manager, as
applicable, if such person would be materially adversely affected by such
amendment, regardless of whether any such person is a party to such agreement.


 


Section 8.03                            Delivery
of Supplements and Amendments.


 


Promptly after the execution by the Issuers and the Indenture Trustee
(and any other party, if required) of any supplemental indenture or amendment
pursuant to the provisions hereof, the Indenture Trustee, at the expense of the
Issuers payable out of the Collateral Pool pursuant to Section 5.04,
shall furnish a notice setting forth in general terms the substance of such
supplemental indenture or amendment to the Rating Agencies and to each Noteholder
at the address for such Noteholder set forth in the Note Register.


 


Section 8.04                            Series Supplements.


 


(a)                                  For
purposes of this Article VIII, a Series Supplement executed in
accordance with the provisions of Section 2.04(c) shall not be
considered an amendment or supplemental indenture for the purposes of this Article VIII.
Accordingly, any Series Supplement executed in accordance with the
provisions of Section 2.04(c) may amend, modify or
supplement this Indenture and the Issuers and the other parties thereto may amend,
modify or supplement any of the Transaction Documents in connection with any
such New Issuance, in each case without the consent of the Noteholders; provided,
that no such Series Supplement may, without the consent of each Noteholder
holding 100% of the Aggregate Series Principal Balance of the Outstanding
Notes affected thereby:


 


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(1)                                  change
the Legal Final Payment Date or Rated Final Payment Date the Payment Date of
any principal, interest or other amount on any such Note, or reduce the Note
Principal Balance thereof or the Note Rate thereon, or change the coin or
currency in which the principal of any Note or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on
or after the Legal Final Payment Date thereof;


 


(2)                                  reduce
the percentage of the then Aggregate Series Principal Balance, the consent
of whose Holders is required for any such Series Supplement, or the
consent of whose Holders is required for any waiver of defaults hereunder and
their consequences provided for in this Indenture, or for any other reason
under this Indenture (including for actions taken by the Indenture Trustee
pursuant to Section 4.01);


 


(3)                                  change
any obligation of the Issuers to maintain an office or agency in the places and
for the purposes set forth in this Indenture;


 


(4)                                  except
as otherwise expressly provided in this Indenture, in the Property Management
Agreement, in any Purchase and Sale Agreement or in any Mortgage, deprive any
Noteholder of the benefit of a valid first priority perfected security interest
in the Collateral included in the Collateral Pool;


 


(5)                                  release
from the lien of the Mortgages or this Indenture (except as specifically
permitted under this Indenture, the Property Management Agreement, the related
Purchase and Sale Agreement or the related Mortgage) all or any portion of the
Collateral Pool;


 


(6)                                  modify
the definition of Noteholder; or


 


(7)                                  modify
this Section 8.04.


 


Section 8.05                            Execution
of Supplemental Indentures, etc.


 


In executing, or accepting the additional trusts created by, any
supplemental indenture or amendment permitted by this Article or in
accepting the modifications thereby of the trusts created by this Indenture or
in giving any consent to any modification of any Mortgage Loan or any Lease
pursuant to this Indenture, the Indenture Trustee shall be entitled to receive,
at the applicable Issuers’ expense payable out of the Collateral Pool pursuant
to Section 5.04, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture,
amendment or modification is authorized or permitted by this Indenture and each
Series Supplement. The Indenture Trustee may, but shall not be obligated
to, enter into any such supplemental indenture or amendment or consent to any
such modification which affects the Indenture Trustee’s own rights, duties or
immunities under this Indenture or otherwise.


 


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Section 8.06                            Amendments
to any Insurance Policy.


 


Notwithstanding any contrary provision in any other Transaction
Document or applicable Series Transaction Document, none of the Issuers,
the Indenture Trustee or an Insurer shall consent to any amendment to the
related Insurance Policy unless the Rating Condition is satisfied.


 


ARTICLE IX



COVENANTS; WARRANTIES


 


Section 9.01                            Maintenance
of Office or Agency.


 


The Issuers shall maintain or cause to be maintained an office or
agency in the continental United States where notices and demands to or upon
the Issuers in respect of the Notes and this Indenture may be served. The
Issuers shall give prompt written notice to the Indenture Trustee, the Insurers
and the Noteholders of the location, and any change in the location, of such
office or agency.


 


Section 9.02                            Existence
and Good Standing.


 


Subject to Section 9.08, the Issuers will each keep in full
effect its existence, rights and franchises under the laws of its jurisdiction
of organization, and will remain in good standing as a foreign limited
liability company, in each jurisdiction to the extent the failure to remain in
good standing would affect materially and adversely the enforceability of this
Indenture or such Issuer’s performance hereunder.


 


Section 9.03                            Payment
of Taxes and Other Claims.


 


(a)                                  The
Issuers shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, all taxes, assessments, governmental charges and
claims (the “Taxes”) levied
or imposed upon the Issuers or upon the income, profits or property of the
Issuers, or shown to be due on the tax returns filed by the Issuers, except any
such Taxes which any Issuer is in good faith contesting in appropriate
proceedings and with respect to which adequate reserves are established if
required in accordance with GAAP;  provided,
that such failure to pay or discharge will not cause a forfeiture of, or a lien
to encumber, any property included in the Collateral Pool. Upon the written
direction of the Property Manager in accordance with the Property Management
Agreement, the Indenture Trustee is authorized to pay out of the Payment
Account, prior to making payments on the Notes, any such Taxes which, if not
paid, would cause a forfeiture of, or a lien to encumber, any property included
in the Collateral Pool.


 


(b)                                 After
prior written notice to the Indenture Trustee, any Issuer, at its own expense, may contest
by appropriate legal proceeding, promptly initiated and conducted in good faith
and with due diligence, the amount or validity or application in whole or in part of
any of the Taxes; provided, that (i) no Event of Default has
occurred and is continuing, (ii) such Issuer is not prohibited from doing
so under the provisions of any mortgage, deed of trust or deed to secure debt
affecting the related Mortgaged Property, (iii) such proceeding shall
suspend the


 


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collection of
the Taxes from such Issuer and from such Mortgaged Property or such Issuer
shall have paid all of the Taxes under protest, (iv) such proceeding shall
be permitted under and be conducted in accordance with the provisions of any
other instrument to which such Issuer is subject and shall not constitute a
default thereunder, (v) neither such Mortgaged Property nor any part thereof
or interest therein will be in danger of being sold, forfeited, terminated,
cancelled or lost, and (vi) unless such Issuer has paid all of the Taxes
under protest, such Issuer has furnished such security as may be required
in the proceeding, as may be reasonably requested by the Indenture Trustee
to insure the payment of any contested Taxes, together with all interest and
penalties thereon.


 


Section 9.04                            Validity
of the Notes; Title to the Collateral; Lien.


 


(a)                                  Each
Issuer represents and warrants to the other parties hereto that such Issuer is
duly authorized under applicable law and the related LLC Agreement to create
and issue the Notes, to pledge the applicable Collateral included in the
Collateral Pool to the Indenture Trustee, to execute and deliver this
Indenture, the other documents referred to herein to which it is a party and
all instruments included in the Collateral Pool which it has executed and
delivered, and that all partnership action and governmental consents,
authorizations and approvals necessary or required therefor have been duly and
effectively taken or obtained. The Notes, when issued, will be, and this
Indenture and such other documents are, valid and legally binding obligations
of the Issuers enforceable in accordance with their terms, subject only to
bankruptcy, reorganization, insolvency and other laws affecting the enforcement
of creditor’s rights generally and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or law).


 


(b)                                 Each
Issuer represents and warrants to the other parties hereto that (i) such
Issuer has good title to, and is the sole owner of, each applicable Mortgage
Loan, Mortgaged Property and Lease, as applicable, and all other applicable
Collateral included in the Collateral Pool, free and clear of any pledge, lien,
encumbrance or security interest other than Permitted Exceptions and the liens
created hereby and under the related Mortgages, (ii) this Indenture
creates a valid and continuing security interest in each such item of the
Collateral Pool in which a security interest may be created under Article 9
of the UCC in favor of the Indenture Trustee, which security interest is prior
to all other liens, encumbrances and security interests, subject only to
exceptions permitted in this Indenture, in the Property Management Agreement
and in the related Mortgages, and is enforceable as such against creditors of
and purchasers from such Issuer, (iii) each Mortgage creates a valid lien
upon the applicable Mortgage Loans, Mortgaged Property and Lease, as
applicable, specified therein, which lien is prior to all other liens,
encumbrances and security interests, subject only to exceptions permitted in
this Indenture, in the Property Management Agreement and in such Mortgage, and
is enforceable as such against creditors of and purchasers from such Issuer, (iv) the
assignment of rents contained in each related Mortgage (or in a separate
document, if required by the local jurisdiction) constitutes the legal, valid,
binding and enforceable assignment of such Issuer’s rights in each applicable
Mortgage Loan or Lease, as applicable, subject only to exceptions permitted in
this Indenture, in the Property Management Agreement and in such Mortgage or
separate document, and (v) such Issuer has received all consents and
approvals required by the terms of the applicable Collateral to Grant such
Collateral included in the Collateral Pool to the Indenture Trustee as provided
herein and in the related Mortgages.


 


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(c)                                  The
Issuers have caused the filing of appropriate financing statements with the
Secretary of State of the State of Delaware in order to perfect the security
interests in the Collateral granted to the Indenture Trustee hereunder, to the
extent such security interests may be perfected by such filing.


 


(d)                                 Other
than the lien and security interest Granted to the Indenture Trustee hereunder
and under the Mortgages (and as otherwise permitted in the Property Management
Agreement or this Indenture), the Issuers have not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Collateral
included in the Collateral Pool. The Issuers have not authorized the filing of
and are not aware of any financing statements against any such Issuer that
include a description of collateral covering the Collateral other than any
financing statements filed in favor of the Indenture Trustee. The Issuers are
not aware of any judgment or tax lien filings against any such Issuer.


 


(e)                                  The
Issuers shall ensure that all cash and investment property at any time owned by
the Issuers and held as part of the Collateral Pool is deposited and
maintained in the Collection Account, Lockbox Account, Payment Account,
Cashflow Coverage Reserve Account, Release Account, Hedge Counterparty Accounts
or any other account subject to an Account Control Agreement. Each such account
shall be maintained in the name of the Indenture Trustee, and the Issuers shall
not consent to the bank or securities intermediary maintaining any such account
to comply with instructions or entitlement orders of any person other than the
Property Manager in accordance with the Property Management Agreement or the
Indenture Trustee. The Issuers will ensure that the bank or securities
intermediary maintaining the Collection Account, Release Account, Payment
Account, Cashflow Coverage Reserve Account or any other account held as part of
the Collateral Pool, on or promptly after the establishment of such account,
executes and delivers to the Indenture Trustee an Account Control Agreement
with respect to such account.


 


(f)                                    The
Issuers represent and warrant that the Indenture is not required to be
qualified under the 1939 Act and that no Issuer is required to be registered as
an “investment company” under the 1940 Act.


 


Section 9.05                            Protection
of Collateral Pool.


 


The Issuers, and, to the extent directed by the Issuers or the
Requisite Global Majority, the Indenture Trustee, will from time to time
execute and deliver all such amendments and supplements hereto (subject to Sections
8.01 and 8.02) and all such financing statements, continuation
statements, instruments of further assurance and other instruments (provided,
however, that the Indenture Trustee will not be obligated to prepare or
file any such supplements, statements or other instruments), and will take such
other action necessary or advisable to:


 


(a)                                  Grant
more effectively all or any portion of the Collateral Pool;


 


(b)                                 maintain
or preserve the lien (and the priority thereof) of the Mortgages and this
Indenture or carry out more effectively the purposes hereof;


 


(c)                                  perfect,
publish notice of, or protect the validity of any Grant made or to be made by
or in the Mortgages or this Indenture;


 


77

















 


(d)                                 enforce
any of the Mortgage Loans or Leases included in the Collateral Pool; or


 


(e)                                  preserve
and defend title to the Collateral included in the Collateral Pool and the
rights of the Indenture Trustee in such Collateral against the claims of all
Persons and parties.


 


Each of the Issuers hereby designates the Indenture Trustee, its agent
and attorney-in-fact, to execute and deliver any financing statement,
continuation statement or other instrument required pursuant to this Section 9.05;
provided, that, subject to and consistent with Section 5.01,
the Indenture Trustee will not be obligated to prepare or file any such
statements or instruments.


 


Section 9.06                            Negative
Covenants.


 


For so long as the Notes of any Series are outstanding and the
applicable Insurance Policies are in effect, no Issuer shall:


 


(a)                                  cause
or permit a voluntary or involuntary sale, transfer, exchange, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options
with respect to, or any other transfer or disposition of (directly or
indirectly, voluntarily or involuntarily, by operation of law or otherwise, and
whether or not for consideration or of record) of a legal or beneficial
interest in any Mortgage Loan, Mortgaged Property, Lease or any part thereof
or any legal or beneficial interest therein or any other part of the
Collateral Pool, except as expressly permitted by this Indenture or the
Property Management Agreement;


 


(b)                                 dissolve
or liquidate in whole or in part, except as provided in Section 9.08;


 


(c)                                  engage,
directly or indirectly, in any business other than that arising out of the
issuance of the Notes and the actions contemplated or required to be performed
under this Indenture or the Property Management Agreement;


 


(d)                                 incur,
create or assume any indebtedness for borrowed money other than the Notes or
otherwise pursuant to this Indenture or the Property Management Agreement;


 


(e)                                  voluntarily
file a petition for bankruptcy or reorganization, make an assignment for the
benefit of creditors or commence any similar proceeding;


 


(f)                                    change
its state of organization, name, identity or organizational status, or
otherwise amend the related LLC Agreement, without notifying the Indenture Trustee
of such change in writing at least thirty (30) days prior to the effective date
of such change and, in the case of a change in such Issuer’s organizational
status or any such amendment, without first obtaining the prior written consent
of the Indenture Trustee and each Insurer (so long as no Insurer Default has
occurred and is continuing) and Rating Agency Condition;


 


78

















 


(g)                                 withdraw
or direct any party to withdraw any funds from the Lockbox Accounts or the
Collection Account, other than in accordance with the terms of this Indenture
or the Property Management Agreement; or


 


(h)                                 engage
in any business or activity other than as permitted under the related LLC
Agreement and this Indenture.


 


Section 9.07                            Statement
as to Compliance.


 


Each Issuer shall deliver to the Indenture Trustee, the Insurers and
the Rating Agencies, within 120 days after the end of each fiscal year
commencing with fiscal year 2005, an Officer’s Certificate of such Issuer
stating that, in the course of the performance by the officer executing such
Officer’s Certificate of such officer’s present duties as an officer of such
Issuer, such officer would normally obtain knowledge or have made due inquiry
as to the existence of any condition or event which would constitute an Event
of Default after notice, direction of the Requisite Global Majority or lapse of
time and that to the best of the officer’s knowledge, (a) such Issuer has
fulfilled all of its obligations under this Indenture in all material respects
throughout such year, or, if there has been a default in the fulfillment of any
such obligation in any material respect, specifying each such default known to
such officer and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice, direction of the
Requisite Global Majority or lapse of time would become, an Event of Default,
or, if such an event has occurred and is continuing, specifying each such event
known to such officer and the nature and status thereof.


 


Section 9.08                            Issuers
May Consolidate, Etc., Only on Certain Terms.


 


(a)                                  For
so long as the Notes of any Series are outstanding or any Insurance Policy
is in effect, the Issuers may not consolidate or merge with or into any
other Person or convey or transfer all or substantially all of the Collateral
Pool to any Person (other than as provided in the Transaction Documents)
without the consent of the Requisite Global Majority, unless:


 


(i)                                     the
Person (if other than any such Issuer) formed by or surviving such
consolidation or merger or that acquires by conveyance or transfer the
Collateral Pool (the “Successor Person”)
shall be a Person organized and existing under the laws of the United States of
America or of any State thereof, shall have expressly assumed by written
instrument, and executed and delivered such written instrument to the Indenture
Trustee, the obligation (to the same extent as such Issuer was so obligated) to
make payments of principal, interest and other amounts, as applicable, on all
of the applicable Notes and pay amounts, as applicable, owed to the Insurers
and the obligation to perform every covenant of this Indenture on the part of
such Issuer to be performed or observed, all as provided herein;


 


(ii)                                  at
the time of, and immediately after giving effect to, such transaction, no Event
of Default or Early Amortization Event shall have occurred and be continuing;


 


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(iii)                               the
Indenture Trustee and the Insurers shall have each received written
confirmation that the Rating Condition is satisfied;


 


(iv)                              any
such Issuer shall have delivered to the Indenture Trustee and the Insurers an
Officers’ Certificate and an Opinion of Counsel, each to the effect that, such
consolidation, merger, conveyance or transfer complies with and satisfies all
conditions precedent relating to the transactions set forth in this Section 9.08;


 


(v)                                 the
Successor Person shall have delivered to the Indenture Trustee and the Insurers
an Officer’s Certificate stating that (1) the Successor Person has good
and marketable title to the applicable Collateral included in the Collateral
Pool, free and clear of any lien, security interest or charge other than the
lien and security interest of the related Mortgages and this Indenture and any
other lien permitted hereby, and (2) immediately following the event which
causes the Successor Person to become the Successor Person, the Indenture
Trustee continues to have a perfected security interest in such Collateral
included in the Collateral Pool to the extent a security interest may be
created and perfected under Article 9 of the UCC and a valid, first
priority lien (subject to Permitted Exceptions) in the related Mortgage Loans,
Mortgaged Properties and Leases; and


 


(vi)                              the Successor
Person shall have delivered to the Indenture Trustee and the Insurers an
Officer’s Certificate and an Opinion of Counsel each stating that, with respect
to a Successor Person that is a corporation, partnership or trust; such
Successor Person shall be duly organized, validly existing and in good standing
in the jurisdiction in which such Successor Person is organized; that the
Successor Person has sufficient power and authority to assume the obligations
set forth in clause (i) above and to execute and deliver an
indenture supplement hereto for the purpose of assuming such obligation; that
the Successor Person has duly authorized the execution, delivery and
performance of any indenture supplement and that such supplemental indenture is
a valid, legal and binding obligation of the Successor Person, enforceable in
accordance with its terms, subject only to bankruptcy, reorganization,
insolvency and other laws affecting the enforcement of creditor’s rights
generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or law); and that,
immediately following the event which causes the Successor Person to become the
Successor Person, the Indenture Trustee continues to have a perfected security
interest in the applicable Collateral included in the Collateral Pool to the
extent a security interest may be created and perfected under Article 9
of the UCC.


 


(b)                                 Upon
any consolidation or merger, or any conveyance or transfer of all or
substantially all of the Collateral Pool, the Successor Person shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuers under this Indenture with the same effect as if such Successor Person
had been named as an Issuer herein. In the event of any such conveyance or
transfer of the Collateral Pool permitted by this Section 9.08, the
Person named as an “Issuer” in the first paragraph of this Indenture, or any
successor that shall theretofore have become such in the manner prescribed in
this Article and that has thereafter effected such a conveyance or
transfer, may be dissolved, wound up and liquidated at any time
thereafter, and


 


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such Person
thereafter shall be released from its liabilities as obligor and maker on all
of the then Outstanding Notes and from its obligations under this Indenture.


 


ARTICLE X



COVENANTS REGARDING MORTGAGED PROPERTIES


 


Section 10.01                     Insurance.


 


(a)                                  The
Issuers will be required to maintain, or cause to be maintained, insurance of
the types and amounts set forth in the Property Management Agreement. The
Issuers shall comply with all such insurance requirements and shall not bring
or keep or permit to be brought or kept any article upon any Mortgaged
Property or cause or permit any condition to exist thereon which would be
prohibited by an insurance requirement, or would invalidate the insurance
coverage required thereunder to be maintained by the related Issuer on or with
respect to any part of a Mortgaged Property.


 


Section 10.02                     Mortgage
Loans, Leases and Rents.


 


(a)                                  With
respect to each Mortgaged Property, the related Issuer  (i) shall observe and perform all
the obligations imposed upon the Borrower under the related Mortgage Loan or
the lessor under the related Lease and shall not do or permit to be done
anything to impair materially the value of any Mortgage Loan, Mortgaged
Property or Lease as security, (ii) shall promptly send copies to the
Indenture Trustee of all notices of default which such Issuer shall send or
receive under the Mortgage Loans and Leases, (iii) shall notify the
Indenture Trustee in writing of any material change in the status of any
tenancy at such Mortgaged Property, including, without limitation, the
vacating, surrender or going dark of any Tenant, even if such action is
expressly permitted by the terms of such Tenant’s Lease, (iv) shall
enforce all of the material terms, covenants and conditions contained in a
related Mortgage Loan upon the part of the Borrower or a related Lease upon
the part of the Tenant, as applicable, thereunder to be observed or
performed (including, without limitation, collecting financial information from
each Borrower or Tenant, as applicable), (v) shall not collect any Monthly
Loan Payment or Monthly Lease Payment more than one month in advance (except
that security deposits shall not be deemed Monthly Loan Payments or Monthly
Lease Payments collected in advance), (vi) shall not execute any
assignment of the Borrower’s interest in a related Mortgage Loan or the Monthly
Loan Payments or the lessor’s interest in a related Lease or the Monthly Lease
Payments except as permitted under the Property Management Agreement, and (vii) shall
not consent to any assignment of or subletting under a related Lease not in accordance
with its terms or as permitted under the Property Management Agreement. No
Issuer shall agree to any material modification of a related Mortgage Loan or
Lease except in accordance with the terms of the Property Management Agreement.


 


Section 10.03                     Compliance
With Laws.


 


With respect to each Mortgaged Property:


 


(a)                                  The
related Issuer shall promptly comply in all material respects with all federal,
state and local laws, orders, ordinances, governmental rules and
regulations or court


 


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orders
affecting such Mortgaged Property, or the use thereof (“Applicable Laws”), currently existing
or enacted in the future.


 


(b)                                 The
Issuers shall from time to time, upon the Indenture Trustee’s request, provide
the Indenture Trustee with evidence reasonably satisfactory to the Indenture
Trustee that the Mortgaged Properties complies in all material respects with
all currently existing Applicable Laws or is exempt from compliance with
currently existing Applicable Laws.


 


(c)                                  Notwithstanding
any provisions set forth herein or in any document regarding the Property
Manager’s approval of alterations of a Mortgaged Property, the related Issuer
shall not alter such Mortgaged Property in any manner which would materially
increase such Issuer’s responsibilities for compliance with Applicable Laws
without the prior written approval of the Property Manager. The foregoing shall
apply to tenant improvements constructed by the related Issuer or by any of its
Tenants. The Property Manager may condition any such approval upon receipt
of a certificate of compliance with Applicable Laws from an independent
architect, engineer, or other person acceptable to the Property Manager.


 


(d)                                 The
Issuers shall give prompt notice to the Indenture Trustee and each Insurer of
the receipt by any such Issuer of any governmental agency notice related to a
violation of any Applicable Laws and of the commencement of any governmental
agency proceedings or investigations which relate to compliance with Applicable
Laws.


 


(e)                                  After
prior written notice to the Indenture Trustee, the related Issuer, at its own
expense, may contest by appropriate legal proceeding, promptly initiated
and conducted in good faith and with due diligence, the Applicable Laws
affecting any Mortgaged Property; provided, that (i) no Event of
Default has occurred and is continuing under any Mortgage or this Indenture, (ii) such
Issuer is not prohibited from doing so under the provisions of any Mortgage
Loan or Lease and any other mortgage, deed of trust or deed to secure debt
affecting such Mortgaged Property, (iii) such proceeding shall not be
prohibited under, and shall be conducted in accordance with, the provisions (if
any) of any other instrument to which such Issuer or such Mortgaged Property is
subject and shall not constitute a default thereunder, (iv) none of such
Mortgaged Property, any part thereof or interest therein, any of the
related Borrowers, such Tenants or occupants thereof, or such Issuer shall be
affected in any materially adverse way as a result of such proceeding, (v) non-compliance
with the Applicable Laws shall not impose criminal liability on such Issuer or
civil or criminal liability on the Indenture Trustee, and (vi) such Issuer
shall have furnished to the Indenture Trustee all other items reasonably
requested by the Indenture Trustee.


 


Section 10.04                     Estoppel
Certificates.


 


The Issuers shall use their best efforts to deliver or cause to be
delivered to the Indenture Trustee, promptly upon request, duly executed estoppel
certificates from any one or more Borrowers or Tenants as required by the
Property Manager in accordance with the Property Management Agreement attesting
to such facts regarding a related Mortgage Loan or Lease, as applicable, as the
Property Manager may require in accordance with the Property Management
Agreement, including but not limited to, attestations that each Lease covered
thereby is in full force and effect with no defaults thereunder on the part of
any party, that none of the Monthly


 


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Loan Payments or Monthly Lease Payments, as
applicable, have been paid more than one month in advance, and that the
Borrower or Tenant claims no defense or offset against the full and timely
performance of its related obligations under such Mortgage Loan or Lease.


 


Section 10.05                     Other
Rights, Etc.


 


It is agreed that the risk of loss or damage to a Mortgaged Property is
on the related Issuer, and the Indenture Trustee shall have no liability
whatsoever for decline in value of such Mortgaged Property, for failure to
maintain insurance policies, or for failure to determine whether insurance in
force is adequate as to the amount of risks insured. Possession by the
Indenture Trustee shall not be deemed an election of judicial relief, if any
such possession is requested or obtained, with respect to any Mortgage Loan or
Mortgaged Property or any other Collateral included in the Collateral Pool and
not in the Indenture Trustee’s possession.


 


Section 10.06                     Right
to Release Any Portion of the Collateral Pool.


 


The Indenture Trustee shall release any portion of the Collateral Pool
without, as to the remainder of such Collateral, in any way impairing or
affecting the lien or priority of this Indenture, or improving the position of
any subordinate lienholder with respect thereto, except to the extent that the
obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by the Indenture Trustee for such release, and may accept
by assignment, pledge or otherwise any other property in place thereof, all in
accordance with the terms hereof and of the Property Management Agreement. This
Indenture shall continue as a lien and security interest in the remaining
portion of the Collateral Pool to which it applies.


 


Section 10.07                     Environmental
Covenants.


 


Each Issuer covenants and agrees that so long as such Issuer owns,
manages, is in possession of, or otherwise controls a Mortgaged Property: (a) all
uses and operations on or of such Mortgaged Property, whether by such Issuer or
any other person or entity, shall be in material compliance with all
Environmental Laws and permits issued pursuant thereto; (b) there shall be
no Environmental Releases of Hazardous Materials in, on, under or from such
Mortgaged Property in material violation of Environmental Laws; (c) there
shall be no Hazardous Materials present at, in, on, or under such Mortgaged
Property or generated, managed, stored, treated, transported or disposed in
connection with the use and operation of such Mortgaged Property, except those
that are both (i) in material compliance with all Environmental Laws and
with permits issued pursuant thereto, if and to the extent required, and (ii) in
amounts necessary to operate such Mortgaged Property; (d) such Issuer
shall keep the Mortgaged Property free and clear of all liens and other
encumbrances imposed pursuant to any Environmental Law, whether due to any act
or omission of the Issuer or any other person or entity (the “Environmental Liens”); (e) such
Issuer shall, at its sole cost and expense, fully and expeditiously cooperate
in all activities pursuant to Section 10.08, including but not
limited to providing all relevant information and making knowledgeable persons
available for interviews; (f) such Issuer shall, at its sole cost and
expense, perform any environmental site assessment or other investigation
of environmental conditions in connection with such Mortgaged Property,
pursuant to any reasonable written request of the Property Manager in accordance
with the Property Management Agreement and share with the Indenture Trustee the
reports and other


 


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results thereof, and the Indenture Trustee
shall be entitled to rely on such reports and other results thereof; (g) such
Issuer shall, at its sole cost and expense, comply with all reasonable written
requests of the Property Manager in accordance with the Property Management
Agreement to (i) reasonably effectuate remediation of any Hazardous
Materials in, on, under or from such Mortgaged Property associated with an
Environmental Release and (ii) comply with any Environmental Law; (h) such
Issuer shall not knowingly permit any Borrower, Tenant or other user of the
Mortgaged Property to violate any Environmental Law in any material respect;
and (i) such Issuer shall immediately notify the Property Manager in
writing after it has become aware of (A) any presence or Environmental
Release or threatened Environmental Releases of Hazardous Materials in, on,
under, from or migrating towards such Mortgaged Property in violation of any
Environmental Law, (B) any non-compliance with any Environmental Laws
related in any way to such Mortgaged Property, (C) any actual or potential
Environmental Lien, (D) any required or proposed governmental agency
investigation, remediation or other response to environmental conditions
relating to such Mortgaged Property, and (E) any written or oral notice or
other communication of which such Issuer becomes aware from any source
whatsoever (including but not limited to a governmental agency) relating in any
way to Hazardous Materials at such Mortgaged Property in violation of
Environmental Law.


 


“Environmental Law” means any
present and future federal, state and local laws, statutes, ordinances, rules,
regulations, standards, policies, consent decrees or settlement agreements and
other governmental directives or requirements, as well as common law, that
apply to any Mortgaged Property and relate to Hazardous Materials, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, and the Resource Conservation and Recovery
Act, as amended. “Hazardous Materials”
shall mean: (a) petroleum and petroleum products and compounds containing
them, including gasoline, diesel fuel and oil; (b) explosives; (c) flammable
materials; (d) radioactive materials; (e) polychlorinated biphenyls (“PCBs”)
and compounds containing them; (f) lead and lead-based paint; (g) asbestos
or asbestos-containing materials in any form that is or could become
friable; (h) underground or above-ground storage tanks, whether empty or
containing any substance; (i) any substance the presence of which on any
Mortgaged Property is regulated by or prohibited by any federal, state or local
authority (a “Regulated Substance”); (j) any
Regulated Substance that requires special handling; (k) and any other material,
substance or waste now or in the future defined as a “hazardous substance,” “hazardous
material,” “hazardous waste,” “toxic substance,” “toxic pollutant,” “contaminant,”
“pollutant” or other words of similar import within the meaning of any
Environmental Law. “Environmental Release”
of any Hazardous Materials includes but is not limited to any release, deposit,
discharge, emission, leaking, leaching, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Materials, including the threat of any of the foregoing.


 


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ARTICLE XI



COSTS


 


Section 11.01                     Performance
at the Issuers’ Expense.


 


The Issuers acknowledge and confirm that the Indenture Trustee shall
impose certain administrative processing fees in connection with the release or
substitution of any Mortgage Loan or Mortgaged Property (the occurrence of any
of the above shall be called an “Event”),
which fees are payable to the Indenture Trustee under the Property Management
Agreement as an Extraordinary Expense. The Issuers further acknowledge and confirm
that they shall be responsible for the payment of all costs of reappraisal of
any Mortgaged Property or any part thereof, whether required by law,
regulation or any governmental or quasi-governmental authority. The Issuers
hereby acknowledge and agree to pay, immediately, upon demand, all such fees
(as the same may be reasonably increased or decreased from time to time),
and any additional fees of a similar type or nature which may reasonably
be imposed by the Indenture Trustee from time to time, upon the occurrence of
any Event or otherwise, in accordance with the priorities set forth herein and
in the Property Management Agreement. Wherever it is provided for herein that
an Issuer pay any costs and expenses, such costs and expenses shall include, but
not be limited to, all reasonable legal fees and disbursements of the Indenture
Trustee in accordance with the priorities set forth herein.


 


ARTICLE XII



MISCELLANEOUS


 


Section 12.01                     Execution
Counterparts.


 


This instrument may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.


 


Section 12.02                     Compliance
Certificates and Opinions, etc.


 


Upon any application or request by an Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, such 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, 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.


 


Section 12.03                     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


 


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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 an Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any 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 an Issuer stating that the information with respect to such factual
matters is in the possession of such Issuer, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.


 


Whenever this Indenture requires that a document or instrument (other
than any Note) be delivered in substantially the form attached hereto as
an exhibit, modifications and additions to and deletions from any such exhibit reflected
in such document or instrument as delivered hereunder shall not impair the
validity or acceptability of such document or instrument (nor shall any Person
be entitled to reject such document or instrument as a result thereof) to the
extent that such modifications, additions or deletions are approved by the
Issuers and are made in a manner consistent with applicable law (including
changes thereto).


 


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 any Person
shall deliver any document as a condition of the granting of such application,
or as evidence of such Person’s compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be),
of the facts and opinions stated in such document shall in such case be
conditions precedent to the right of such Person 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 V.


 


Section 12.04                     No
Oral Change.


 


This Indenture, and any provisions hereof, may not be modified,
amended, waived, extended, changed, discharged or terminated orally or by any
act or failure to act on the part of any Issuer or the Indenture Trustee,
but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought and otherwise in accordance herewith.


 


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Section 12.05                     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 the Noteholders of
any Class of any Series or in their entirety 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 applicable Issuers. 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 5.01) conclusive in favor of the Indenture
Trustee and the Issuers if made in the manner provided in this Section. With
respect to authorization to be given or taken by Noteholders, the Indenture
Trustee shall be authorized to follow the written directions or the vote of
Noteholders of Notes representing more than 50% of the Aggregate Series Principal
Balance (or Outstanding Notes of the affected Class, if applicable), unless any
greater or lesser percentage is required by the terms hereunder.


 


(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
Series, Class, Note Principal Balance and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note Register.


 


(d)                                 Any
request, demand, authorization, direction, notice, consent, election,
declaration, waiver or other act of any Noteholder shall bind every future
Noteholder of the same Note and the Noteholder of every Note issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, suffered or omitted to be done by the Indenture Trustee or the
applicable Issuers in reliance thereon, whether or not notation of such action
is made upon such Note.


 


Section 12.06                     Computation
of Percentage of Noteholders.


 


Unless otherwise specified herein, whenever this Indenture states that
any action may be taken by a specified percentage of the Noteholders or
the Noteholders of any Class, such statement shall mean that such action may be
taken by the Noteholders of such specified percentage of the Aggregate Series Principal
Balance or of such Class of Notes, respectively.


 


Section 12.07                     Notice
to the Indenture Trustee, the Issuers and Certain Other Persons.


 


Any communication provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to
have been duly given if delivered by courier or mailed by first class mail,
postage prepaid, or if transmitted by facsimile and confirmed in a writing
delivered or mailed as aforesaid, to: (i) in the case of any Issuer to
Spirit Master Funding, LLC, 14631 N. Scottsdale Road, Suite 200,
Scottsdale, Arizona 85255, facsimile number: 480-606-0820, Attention: Catherine
Long, Chief Financial Officer or to such other address as provided in the
applicable Series Supplement, as applicable; (ii) in the case of


 


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the Indenture Trustee, Citibank, N.A., at 388
Greenwich Street, 14th Floor, New York, New York 10013, Attention: Agency and
Trust- Spirit Master Funding, facsimile number: 212-816-5527; and (iii) with
respect to any applicable Series, in the case of any Insurer, Hedge
Counterparty or Rating Agency, the address of such Insurer, Hedge Counterparty
or Rating Agency as provided in the applicable Series Supplement, or, as
to each such Person, such other address or facsimile number as may hereafter
be furnished by such Person to the parties hereto in writing.


 


Section 12.08                     Notices
to Noteholders; Notification Requirements and Waiver.


 


Where this Indenture provides for notice to Noteholders of any event,
such notice shall be sufficiently given if in writing and delivered by courier
or mailed by first class mail, postage prepaid to each Noteholder affected
by such event, at its 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 delivered or 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 courier and 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.


 


Where this Indenture provides for notice to the Rating Agencies,
failure to give any such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
a default or Event of Default.


 


Section 12.09                     Successors
and Assigns.


 


All covenants and agreements in this Indenture by the Issuers shall
bind their successors and permitted assigns, whether so expressed or not.


 


Section 12.10                     Interest
Charges; Waivers.


 


This Indenture is subject to the express condition that at no time
shall any Issuer be obligated or required to pay interest hereunder at a rate which
could subject the Indenture Trustee to either civil or criminal liability as a
result of being in excess of the maximum interest rate which such Issuer is
permitted by applicable law to contract or agree to pay. If by the terms of
this Indenture, any Issuer is at any time required or obligated to pay interest
hereunder at a


 


88

















 


rate in excess of such maximum rate, such
rate shall be deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due
hereunder.


 


The Issuers expressly waives presentment, demand, diligence, protest
and all notices of any kind whatsoever with respect to this Indenture, except
for notices expressly provided for in this Indenture, the Mortgages or the
Notes.


 


Section 12.11                     Severability
Clause.


 


In case any provision of this Indenture or of the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall, to the extent permitted by law, not in any way
be affected or impaired thereby.


 


Section 12.12                     Governing
Law.


 


(a)                                  THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES).


 


(b)                                 Any
action or proceeding against any of the parties hereto relating in any way to
this Indenture or any Note or the Collateral included in the Collateral Pool may be
brought and enforced in the courts of the State of New York sitting in the
borough of Manhattan or of the United States District Court for the Southern
District of New York and each of the Issuers irrevocably submits to the
jurisdiction of each such court in respect of any such action or proceeding.
The Issuers hereby waive, to the fullest extent permitted by law, any right to
remove any such action or proceeding by reason of improper venue or
inconvenient forum. As long as any of the Notes remain Outstanding, service of
process upon any Issuer shall, to the fullest extent permitted by law, be
deemed in every respect effective service in any such legal action or
proceeding.


 


Section 12.13                     Insurer
Default.


 


If an Insurer Default has occurred and is continuing with respect to
any Insurer, any provision giving such Insurer the right to direct, appoint or
consent to, approve of, or take any action (or waive any right to take action)
under this Indenture or the applicable Series Supplement, shall be
inoperative; provided, however, that upon the cure of any such
Insurer Default, such rights shall be reinstated.


 


Section 12.14                     Effect
of Headings and Table of Contents.


 


The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.


 


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Section 12.15                     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, the Noteholders, the Series Enhancers, the Property Manager,
the Special Servicer, the Back-Up Manager and any other party secured hereunder
or named as a beneficiary of any provision hereof, any benefit or any legal or
equitable right, remedy or claim under this Indenture.


 


Section 12.16                     Trust
Obligation.


 


No recourse may be taken, directly or indirectly, with respect to
the obligations of the Issuers on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith,
against (i) any Issuer, the Indenture Trustee, the Collateral Agent, the
Property Manager, the Back-Up Manager or the Special Servicer in its individual
capacity, (ii) any owner of a beneficial interest in an Issuer or (iii) any
partner, owner, beneficiary, agent, officer, director, employee, agent or
Control Person of an Issuer, the Indenture Trustee, the Collateral Agent, the
Property Manager, the Back-Up Manager or the Special Servicer in its individual
capacity, any holder of a beneficial interest in an Issuer or of any successor
or assignee of an Issuer, the Indenture Trustee, the Collateral Agent, the
Property Manager, the Back-Up Manager or the Special Servicer in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that none of the Indenture Trustee, the Collateral Agent, the
Property Manager, the Back-Up Manager or the Special Servicer has any such
obligations in its individual capacity).


 


Section 12.17                     Inspection.


 


Each Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, during such Issuer’s normal business
hours, to examine all the books of account, records, reports, and other papers
of such Issuer, to make copies and extracts therefrom and to discuss such
Issuer’s affairs, finances and accounts relating to such Issuer with the
officers of Spirit Finance on behalf of such Issuer and such Issuer’s employees
and independent public accounting firm, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall and
shall cause its representatives 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) or the Indenture
Trustee may reasonably determine that such disclosure is consistent with
its obligations hereunder.


 


Section 12.18                     Method
of Payment.


 


Except as otherwise provided in Section 2.11(b), all
amounts payable or to be remitted pursuant to this Indenture shall be paid or
remitted or caused to be paid or remitted in immediately available funds by
wire transfer to an account specified in writing by the recipient thereof.


 


Section 12.19                     Limitation
on Liability of the Issuers.


 


None of the Issuers or any of the directors, officers, employees,
agents or Control Persons of any Issuer, shall be under any liability to the
Noteholders for any action taken or for


 


90

















 


refraining from the taking of any action in
good faith pursuant to this Agreement, or for errors in judgment. The Issuers,
and any director, officer, employee or agent of any Issuer may rely in
good faith on any document of any kind which, prima facie,
is properly executed and submitted by any Person respecting any matters arising
hereunder. No Issuer shall be under any obligation to appear in, prosecute or
defend any legal action unless such action is related to its duties under this
Indenture and which in its opinion does not involve it in any expenses or
liability; provided, however, that any such Issuer may in
its discretion undertake any such action which it may deem necessary or
desirable with respect to this Indenture and the rights and duties of the
parties hereto and the interests of the Noteholders and the Insurers hereunder.


 


91

















 


IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.


 


	
   

  	
  SPIRIT MASTER FUNDING, LLC, as an Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael T. Bennett

  	
   

  
	
   

  	
  Name: Michael T. Bennett

  
	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  not in its individual capacity but solely
  as Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Hannon

  	
   

  
	
   

  	
  Name: John Hannon

  
	
   

  	
  Title: AVP

  



 

















 


	
  STATE OF Arizona

  	
  )

  
	
   

  	
  ) ss.:

  
	
  COUNTY OF Maricopa

  	
  )

  



 


On this 17th day of March 2006, before me, the undersigned officer,
personally appeared Michael T. Bennett and acknowledged himself to me to
be the Senior Vice President of Spirit Master Funding, LLC, and that as such
officer, being duly authorized to do so pursuant to such entity’s by-laws or a
resolution of its board of directors, executed and acknowledged the foregoing
instrument for the purposes therein contained, by signing the name of such
entity by him as such officer as his free and voluntary act and deed and the
free and voluntary act and deed of said entity.


 


IN WITNESS WHEREOF, I hereunto set my hand
and official seal.


 


 


	
   

  	
  /s/ Vaughn Dee L. Konegni

  	
   

  
	
   

  	
  Notary Public

  
	
   

  
	
  NOTARIAL SEAL

  



 

















 


	
  STATE OF New York

  	
  )

  
	
   

  	
  ) ss.:

  
	
  COUNTY OF Queens

  	
  )

  



 


On this 17th day of March 2006, before me, the undersigned officer,
personally appeared John Hannon, and acknowledged himself to me to be a Vice
President of Citibank, N.A., and that as such officer, being duly authorized to
do so pursuant to such entity’s by-laws or a resolution of its board of
directors, executed and acknowledged the foregoing instrument for the purposes
therein contained, by signing the name of such entity by him as such officer as
his free and voluntary act and deed and the free and voluntary act and deed of
said entity.


 


IN WITNESS WHEREOF, I hereunto set my hand
and official seal.


 


 


	
   

  	
  /s/ Ray C. Renie

  	
   

  
	
   

  	
  Notary Public

  
	
   

  
	
  NOTARIAL SEAL

  



 

















 


EXHIBIT A-1


 


FORM OF
RESTRICTED GLOBAL NET-LEASE MORTGAGE NOTE


 


144A NOTE


 


SERIES [       ],
CLASS [       ] NOTE


 


	
  Note Rate: [    ]%

  	
   

  	
  Aggregate Series Principal Balance as of the Series Closing
  Date: 
  $[                ]

  
	
   

  	
   

  	
   

  
	
  Series Cut-off Date: [      ],
  200[  ]

  	
   

  	
  Note Principal Balance of the Class [     ]
  Notes as of the Series Closing Date: $[     ]

  
	
   

  	
   

  	
   

  
	
  Series Closing Date: 
  [      ], 200[  ]

  	
   

  	
  Initial Note Principal Balance of this Class [     ]
  Note:  $[            ]

  
	
   

  	
   

  	
   

  
	
  First Payment Date: [      ],
  200[  ]

  	
   

  	
  CUSIP No.           

  
	
   

  	
   

  	
   

  
	
  Issuer(s):  [SPIRIT]

  	
   

  	
  ISIN No.             

  
	
   

  	
   

  	
   

  
	
  Indenture Trustee:

  Citibank, N.A.

  	
   

  	
  Property Manager and Special Servicer:  

  Spirit Finance Corporation

  
	
   

  	
   

  	
   

  
	
  Note No.  

  	
   

  	
  Legal Final Payment Date: 
  [             
      ]

  



 


A-1-1

















 


UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE INDENTURE
TRUSTEE, THE NOTE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR DISTRIBUTION, 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.


 


THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), ANY STATE
SECURITIES LAWS IN THE UNITED STATES OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT AS PERMITTED BY THIS LEGEND. THE HOLDER HEREOF, BY ITS
ACCEPTANCE OF THIS NOTE, AND EACH PERSON WHO ACQUIRES A BENEFICIAL INTEREST IN
THIS NOTE, BY ITS ACCEPTANCE OF SUCH INTEREST, REPRESENTS, ACKNOWLEDGES AND
AGREES THAT IT WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE
OR ANY INTEREST HEREIN EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND EXCEPT (A) IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, WHOM THE SELLER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, PROVIDED
THAT SUCH PURCHASER DELIVERS ALL DOCUMENTS AND CERTIFICATIONS AS THE INDENTURE
TRUSTEE MAY REASONABLY REQUIRE; OR (B) OUTSIDE THE UNITED STATES IN “OFFSHORE
TRANSACTIONS” TO NON-US PERSONS IN COMPLIANCE WITH RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
DEFINITIVE NOTES, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC
OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY.


 


THE HOLDER HEREOF, BY ACCEPTING THIS NOTE, AND EACH BENEFICIAL OWNER BY
PURCHASING OR OTHERWISE ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE, EACH
AGREES TO TREAT THIS NOTE AND SUCH BENEFICIAL INTEREST FOR PURPOSES OF UNITED
STATES FEDERAL, STATE


 


A-1-2

















 


AND LOCAL INCOME OR FRANCHISE TAXES AND ANY OTHER TAXES IMPOSED ON OR
MEASURED BY INCOME, AS INDEBTEDNESS OF THE ISSUER[S] AND TO REPORT THIS NOTE
AND SUCH BENEFICIAL INTEREST ON ALL APPLICABLE TAX RETURNS IN A MANNER
CONSISTENT WITH SUCH TREATMENT.


 


[CERTAIN PAYMENTS WITH RESPECT TO THIS NOTE WILL BE SUBORDINATE TO
PAYMENTS WITH RESPECT TO THE CLASS [   ] NOTES AS AND TO
THE EXTENT DESCRIBED IN THE INDENTURE.](1)


 


REDUCTIONS OF THE NOTE PRINCIPAL BALANCE OF THIS NOTE MAY BE MADE
MONTHLY AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING NOTE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ABOVE.


 


THE NOTES WILL HAVE THE BENEFIT OF THE
CERTIFICATE GUARANTY INSURANCE POLICY DESCRIBED HEREIN (THE “INSURANCE POLICY”).
THE NOTES ARE SOLELY OBLIGATIONS OF THE ISSUER[S] AND DO NOT REPRESENT
OBLIGATIONS OF ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, THE INDENTURE
TRUSTEE, THE COLLATERAL AGENT, THE PROPERTY MANAGER, THE SUPPORT PROVIDER, THE
SPECIAL SERVICER, THE BACK-UP MANAGER, THE INITIAL PURCHASERS OR ANY OF THEIR
RESPECTIVE AFFILIATES. THE NOTES ARE NOT INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY. EACH NOTE IS ONE OF A SERIES OF
NOTES, ALL OF WHICH ARE PAYABLE SOLELY FROM THE PROCEEDS OF THE COLLATERAL POOL
AND FROM DRAWINGS ON THE INSURANCE POLICY. ADDITIONAL SERIES OF NOTES
SECURED PRO RATA BY THE COLLATERAL POOL MAY ALSO BE ISSUED IN THE FUTURE.
PROSPECTIVE INVESTORS SHOULD MAKE AN INVESTMENT DECISION BASED UPON AN ANALYSIS
OF THE SUFFICIENCY OF THE COLLATERAL POOL AND THE INSURANCE POLICY.


 






(1)                                  Include
in Class [    ] Note only.


 


A-1-3

















 


The Issuer[s], a Delaware limited liability
company, for value received, hereby promises to pay to Cede & Co. or
its registered assigns, upon presentation and surrender of this Note (this “Note”), the principal sum of [                                                       ]
United States dollars ($[                         ])
on the Legal Final Payment Date referred to above, together with interest
hereon from time to time in the amounts and at the times specified in the
Indenture referred to below.


 


This Note is one of a series of Net-Lease Mortgage Notes
(collectively, the “Notes”)
issued by the Issuer[s] (each, a “Class”)
pursuant to an Amended and Restated Master Indenture, to be dated on or about March 17,
2006 (as amended or supplemented thereafter, the “Master
Indenture”), between Spirit
Master Funding, LLC (as an issuer “Issuer”)
and Citibank, N.A., as indenture trustee (in such capacity, the “Indenture Trustee”), as
supplemented by the Series [           ]
Indenture Supplement (together with the Master Indenture and any other
indenture supplement thereto (each, a “Series Supplement”),
the “Indenture”), and will be payable
solely from the assets of the Issuers (individually, the “Collateral”
and, collectively, the “Collateral Pool”)
[and from drawings on the Insurance Policy]. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Indenture. This Note is issued under and is subject to the terms, provisions
and conditions of the Indenture, to which Indenture the Holder of this Note by
virtue of the acceptance hereof assents and by which such Holder is bound.


 


Pursuant to the terms of the Indenture, payments of any interest,
principal and other amounts payable on this Note shall be made on the Class of
Notes to which this Note belongs, pro rata among
the Notes of such Class based on their respective Note Principal Balance,
on the 20th day of each calendar month or, if any such day is not a Business
Day, then on the next succeeding Business Day (each, a “Payment
Date”), commencing on the first Payment Date specified above, to
the Person in whose name this Note is registered at the close of business on
the related Record Date. All payments made under the Indenture on this Note
will be made by the Indenture Trustee by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Noteholder shall have provided
the Indenture Trustee with wiring instructions prior to the related Record Date
(which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Noteholder as it appears in the Note Register as of the related
Record Date. Notwithstanding the foregoing, the final payment on this Note on
the Final Payment Date will be made in like manner, but only upon presentation
and surrender of this Note at the offices of the Indenture Trustee or such
other location specified in the notice to the Holder hereof of such final
payment. Notwithstanding anything herein to the contrary, no payments will be
made with respect to a Note that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.


 


The Notes are limited in right of payment to certain distributions on
the Mortgage Loans, Mortgaged Properties and Leases and the other Collateral
included in the Collateral Pool, all as more specifically set forth herein and
in the Indenture.


 


Any payment to the Holder of this Note in reduction of the Note
Principal Balance hereof is binding on such Holder and all future Holders of
this Note and any Note issued


 


A-1-4

















 


upon the transfer hereof or in exchange
therefor or in lieu hereof whether or not notation of such payment is made upon
this Note.


 


The Class of Notes to which this Note belongs are issuable in
fully registered form only without coupons in minimum denominations
specified in the Indenture. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for new Notes of the
same Class in authorized denominations of a like Percentage Interest, as
requested by the Holder surrendering the same.


 


No transfer of this Note or any interest herein may be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. No person is obligated to register or qualify
any of the Notes under the Securities Act or any other securities law or to
take any action not otherwise required under the Indenture to permit the transfer
of any Note or interest therein without registration or qualification.


 


Each transferee of a Note will be deemed to have represented, warranted
and agreed that either (i) such transferee is not, and is not purchasing
such Note on behalf of, as a fiduciary of, as trustee of, or with the assets
of, a Plan or (ii)(A) such Note is rated investment grade or better as of
the date of the purchase, (B) such transferee believes that such Note is
properly treated as indebtedness without substantial equity features for
purposes of Department of Labor Regulations and agrees to so treat such Note
and (C) such transferee’s acquisition and continued holding of such Note
or Ownership Interest therein will not give rise to a non-exempt prohibited
transaction described in Section 406 of ERISA or Section 4975 of the
Code (or any materially similar applicable law).


 


As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register upon
surrender of this Note for registration of transfer at the offices of the Note
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of the same Class in authorized denominations evidencing
the same Aggregate Series Principal Balance will be issued to the
designated transferee or transferees.


 


No service charge will be imposed for any transfer or exchange of this
Note, but the Indenture Trustee or the Note Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of this Note.


 


The Issuer[s], the Indenture Trustee, the Note Registrar and any agent
of any thereof may treat the Person in whose name this Note is registered
as the owner hereof for all purposes, and none of the Issuer[s], the Indenture
Trustee, the Note Registrar or any such agent shall be affected by notice to
the contrary.


 


The Indenture, the Property Management Agreement, any Purchase and Sale
Agreements and the Notes are subject to amendment, including by supplemental
indenture, from


 


A-1-5

















 


time to time in accordance with the terms
thereof, including in circumstances which do not require the consent of any or
all Noteholders.


 


Unless the certificate of authentication hereon has been executed by
the Indenture Trustee, by manual signature, the Note shall not be entitled to
any benefit under the Indenture or be valid for any purpose.


 


The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Collateral Pool (to the extent of its rights therein)
and the Insurance Policy for payments hereunder.


 


The Indenture Trustee makes no representation as to the validity or
sufficiency of this Note (other than as to its signature set forth hereon
below).


 


This Note shall be governed by and construed in accordance with the
laws of the State of New York (including Section 5-1401 of the General
Obligations Law of the State of New York, but otherwise without regard to
conflict of laws principles).


 


A-1-6

















 


IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly
executed by the Issuers.


 


Dated:             [                                  ]


 


	
   

  	
  [SPIRIT]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


 


CERTIFICATE
OF AUTHENTICATION


 


This is one of the Class [          ]
Notes referred to in the within-mentioned Indenture.


 


	
   

  	
  CITIBANK, N.A.,

  
	
   

  	
  not in its individual capacity but solely
  as

  
	
   

  	
  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


A-1-7

















 


ASSIGNMENT


 


FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto 


	
   

  
	
   

  
	
   

  



(please print or typewrite name and address including postal zip code
of assignee) 



the within Net-Lease Mortgage Note and hereby authorize(s) the registration of
transfer of such Note to assignee on the Note Register.


 


I (we) further direct the Note Registrar to
issue a new Net-Lease Mortgage Note of a like Note Principal Balance and Class to
the above named assignee and deliver such Note to the following address:


 


	
   

  
	
   

  
	
   

  
	
  Dated:

  	
   

  



 


 


	
   

  	
   

  
	
   

  	
  Signature by or on behalf of Assignor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guaranteed

  



 


PAYMENT INSTRUCTIONS


 


The Assignee should include the following for
purposes of payment:


 


Payments shall, if permitted, be made by wire
transfer or otherwise, in immediately available funds, to                                          

for the account of                                                                                                                                                                                                                .



Payments made by check (such check to be made payable to                                                                                              )

and all applicable statements and notices should be mailed to                                                                                        .


 


This information is provided by                                                           ,
the Assignee named above, or                                                                ,
as its agent.


 


A-1-8

















 


EXHIBIT A-2


 


FORM OF
REGULATION S GLOBAL NET-LEASE MORTGAGE NOTE


 


[TEMPORARY]
[PERMANENT] REGULATION S GLOBAL NOTE


 


SERIES [       ],
CLASS [        ] NOTE


 


	
  Note Rate: [      ]%

  	
   

  	
  Aggregate Series Principal Balance as of the Series Closing
  Date: 
  $[                  ]

  
	
   

  	
   

  	
   

  
	
  Series Cut-off Date:
  [          ],
  200[  ]

  	
   

  	
  Note Principal Balance of the Class [    ]
  Notes as of the Series Closing Date:
  $[          ]

  
	
   

  	
   

  	
   

  
	
  Series Closing Date: 
  [          ],
  200[  ]

  	
   

  	
  Initial Note Principal Balance of this Class [    ]
  Note: 
  $[                  ]

  
	
   

  	
   

  	
   

  
	
  First Payment Date:
  [        ], 200[  ]

  	
   

  	
  CUSIP No.                      

  
	
   

  	
   

  	
   

  
	
  Issuer(s):  [SPIRIT]

  	
   

  	
  ISIN No.                          

  
	
   

  	
   

  	
   

  
	
  Indenture Trustee:

  Citibank, N.A.

  	
   

  	
  Property Manager and Special Servicer:  

  Spirit Finance Corporation

  
	
   

  	
   

  	
   

  
	
  Note No.    

  	
   

  	
  Legal Final Payment Date: 
  [                        ]

  



 


A-2-1

















 


UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE INDENTURE
TRUSTEE, THE NOTE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR DISTRIBUTION, 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.


 


THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), ANY STATE
SECURITIES LAWS IN THE UNITED STATES OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT AS PERMITTED BY THIS LEGEND. THE HOLDER HEREOF, BY ITS
ACCEPTANCE OF THIS NOTE, AND EACH PERSON WHO ACQUIRES A BENEFICIAL INTEREST IN
THIS NOTE, BY ITS ACCEPTANCE OF SUCH INTEREST, REPRESENTS, ACKNOWLEDGES AND
AGREES THAT IT WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE
OR ANY INTEREST HEREIN EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND EXCEPT (A) IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, WHOM THE SELLER
HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, PROVIDED
THAT SUCH PURCHASER DELIVERS ALL DOCUMENTS AND CERTIFICATIONS AS THE INDENTURE
TRUSTEE MAY REASONABLY REQUIRE; OR (B) OUTSIDE THE UNITED STATES IN “OFFSHORE
TRANSACTIONS” TO NON-US PERSONS IN COMPLIANCE WITH RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
DEFINITIVE NOTES, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC
OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITORY.


 


[THIS NOTE IS A TEMPORARY GLOBAL NOTE FOR PURPOSES OF REGULATION S
UNDER THE SECURITIES ACT, WHICH IS EXCHANGEABLE FOR A PERMANENT GLOBAL NOTE
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE INDENTURE.]


 


A-2-2

















 


THE HOLDER HEREOF, BY ACCEPTING THIS NOTE, AND EACH BENEFICIAL OWNER BY
PURCHASING OR OTHERWISE ACQUIRING A BENEFICIAL INTEREST IN THIS NOTE, EACH
AGREES TO TREAT THIS NOTE AND SUCH BENEFICIAL INTEREST FOR PURPOSES OF UNITED
STATES FEDERAL, STATE AND LOCAL INCOME OR FRANCHISE TAXES AND ANY OTHER TAXES
IMPOSED ON OR MEASURED BY INCOME, AS INDEBTEDNESS OF THE ISSUER[S] AND TO
REPORT THIS NOTE AND SUCH BENEFICIAL INTEREST ON ALL APPLICABLE TAX RETURNS IN
A MANNER CONSISTENT WITH SUCH TREATMENT.


 


[CERTAIN PAYMENTS WITH RESPECT TO THIS NOTE WILL BE SUBORDINATE TO
PAYMENTS WITH RESPECT TO THE CLASS [    ] NOTES AS AND
TO THE EXTENT DESCRIBED IN THE INDENTURE.](1)


 


REDUCTIONS OF THE NOTE PRINCIPAL BALANCE OF THIS NOTE MAY BE MADE
MONTHLY AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING NOTE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ABOVE.


 


THE NOTES WILL HAVE THE BENEFIT OF THE
CERTIFICATE GUARANTY INSURANCE POLICY DESCRIBED HEREIN (THE “INSURANCE POLICY”).
THE NOTES ARE SOLELY OBLIGATIONS OF THE ISSUER[S] AND DO NOT REPRESENT
OBLIGATIONS OF ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, THE INDENTURE
TRUSTEE, THE COLLATERAL AGENT, THE PROPERTY MANAGER, THE SUPPORT PROVIDER, THE
SPECIAL SERVICER, THE BACK-UP MANAGER, THE INITIAL PURCHASERS OR ANY OF THEIR
RESPECTIVE AFFILIATES. THE NOTES ARE NOT INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY. EACH NOTE IS ONE OF A SERIES OF
NOTES, ALL OF WHICH ARE PAYABLE SOLELY FROM THE PROCEEDS OF THE COLLATERAL POOL
AND FROM DRAWINGS ON THE INSURANCE POLICY. ADDITIONAL SERIES OF NOTES
SECURED PRO RATA BY THE COLLATERAL POOL MAY ALSO BE ISSUED IN THE FUTURE.
PROSPECTIVE INVESTORS SHOULD MAKE AN INVESTMENT DECISION BASED UPON AN ANALYSIS
OF THE SUFFICIENCY OF THE COLLATERAL POOL AND THE INSURANCE POLICY.


 






(1)                                  Include
in Class [    ] Note only.


 


A-2-3

















 


The Issuer[s], a Delaware limited liability company, for value received,
hereby promises to pay to Cede & Co. or its registered assigns, upon
presentation and surrender of this Note (this “Note”),
the principal sum of [                                                   ]
United States dollars ($[                          ])
on the Legal Final Payment Date referred to above, together with interest
hereon from time to time in the amounts and at the times specified in the
Indenture referred to below.


 


This Note is one of a series of Net-Lease Mortgage Notes
(collectively, the “Notes”)
issued by the Issuer[s] (each, a “Class”)
pursuant to an Amended and Restated Master Indenture, to be dated on or about March 17,
2006 (as amended or supplemented thereafter, the “Master
Indenture”), between Spirit
Master Funding, LLC (as an issuer “Issuer”)
and Citibank, N.A., as indenture trustee (in such capacity, the “Indenture Trustee”), as
supplemented by the Series [     ] Supplement
(together with the Master Indenture and any other indenture supplement thereto
(each, a “Series Supplement”), the “Indenture”), and will be payable
solely from the assets of the Issuers (individually, the “Collateral”
and, collectively, the “Collateral Pool”)
[and from drawings on the Insurance Policy]. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Indenture. This Note is issued under and is subject to the terms, provisions
and conditions of the Indenture, to which Indenture the Holder of this Note by
virtue of the acceptance hereof assents and by which such Holder is bound.


 


Pursuant to the terms of the Indenture, payments of any interest,
principal and other amounts payable on this Note shall be made on the Class of
Notes to which this Note belongs, pro rata among
the Notes of such Class based on their respective Note Principal Balance,
on the 20th day of each calendar month or, if any such day is not a Business
Day, then on the next succeeding Business Day (each, a “Payment
Date”), commencing on the first Payment Date specified above, to
the Person in whose name this Note is registered at the close of business on
the related Record Date. All payments made under the Indenture on this Note
will be made by the Indenture Trustee by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Noteholder shall have provided
the Indenture Trustee with wiring instructions prior to the related Record Date
(which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Noteholder as it appears in the Note Register as of the related
Record Date. Notwithstanding the foregoing, the final payment on this Note on
the Final Payment Date will be made in like manner, but only upon presentation
and surrender of this Note at the offices of the Indenture Trustee or such
other location specified in the notice to the Holder hereof of such final
payment. Notwithstanding anything herein to the contrary, no payments will be
made with respect to a Note that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.


 


The Notes are limited in right of payment to certain distributions on
the Mortgage Loans, Mortgaged Properties and Leases and the other Collateral
included in the Collateral Pool, all as more specifically set forth herein and
in the Indenture.


 


Any payment to the Holder of this Note in reduction of the Note
Principal Balance hereof is binding on such Holder and all future Holders of
this Note and any Note issued


 


A-2-4

















 


upon the transfer hereof or in exchange therefor
or in lieu hereof whether or not notation of such payment is made upon this
Note.


 


The Class of Notes to which this Note belongs are issuable in
fully registered form only without coupons in minimum denominations
specified in the Indenture. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for new Notes of the
same Class in authorized denominations of a like Percentage Interest, as
requested by the Holder surrendering the same.


 


No transfer of this Note or any interest herein may be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. No person is obligated to register or qualify
any of the Notes under the Securities Act or any other securities law or to
take any action not otherwise required under the Indenture to permit the
transfer of any Note or interest therein without registration or qualification.


 


Each transferee of a Note will be deemed to have represented, warranted
and agreed that either (i) such transferee is not, and is not purchasing
such Note on behalf of, as a fiduciary of, as trustee of, or with the assets
of, a Plan or (ii)(A) such Note is rated investment grade or better as of
the date of the purchase, (B) such transferee believes that such Note is
properly treated as indebtedness without substantial equity features for
purposes of Department of Labor Regulations and agrees to so treat such Note
and (C) such transferee’s acquisition and continued holding of such Note
or Ownership Interest therein will not give rise to a non-exempt prohibited
transaction described in Section 406 of ERISA or Section 4975 of the
Code (or any materially similar applicable law).


 


As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register upon
surrender of this Note for registration of transfer at the offices of the Note
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of the same Class in authorized denominations evidencing
the same Aggregate Series Principal Balance will be issued to the
designated transferee or transferees.


 


No service charge will be imposed for any transfer or exchange of this
Note, but the Indenture Trustee or the Note Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of this Note.


 


[After such time as the Restricted Period shall have terminated, and
subject to the receipt by the Indenture Trustee of a certificate substantially
in the form of Exhibit D-4 to the Indenture, beneficial interests in
this Note may be exchanged for an equal aggregate principal amount of
beneficial interest in the Permanent Regulation S Global Note. Upon any
exchange of any beneficial interest in this Note for a beneficial interest in
the Permanent Regulation S Global Note, (i) this Note shall be endorsed by
the Indenture Trustee to reflect the reduction of the principal amount
evidenced hereby, whereupon the principal amount of this Note shall be


 


A-2-5

















 


reduced for all purposes by the amount so
exchanged and endorsed and (ii) the Permanent Regulation S Global Note
shall be endorsed by the Indenture Trustee to reflect the increase of the
principal amount evidenced thereby, whereupon the principal amount of the
Permanent Regulation S Global Note shall be increased for all purposes by the
amount so exchanged and endorsed.]


 


The Issuer[s], the Indenture Trustee, the Note Registrar and any agent
of any thereof may treat the Person in whose name this Note is registered
as the owner hereof for all purposes, and none of the Issuer[s], the Indenture
Trustee, the Note Registrar or any such agent shall be affected by notice to
the contrary.


 


The Indenture, the Property Management Agreement, any Purchase and Sale
Agreements and the Notes are subject to amendment, including by supplemental
indenture, from time to time in accordance with the terms thereof, including in
circumstances which do not require the consent of any or all Noteholders.


 


Unless the certificate of authentication hereon has been executed by
the Indenture Trustee, by manual signature, the Note shall not be entitled to
any benefit under the Indenture or be valid for any purpose.


 


The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Collateral Pool (to the extent of its rights therein)
and the Insurance Policy for payments hereunder.


 


The Indenture Trustee makes no representation as to the validity or
sufficiency of this Note (other than as to its signature set forth hereon
below).


 


This Note shall be governed by and construed in accordance with the
laws of the State of New York (including Section 5-1401 of the General
Obligations Law of the State of New York, but otherwise without regard to
conflict of laws principles).


 


A-2-6

















 


IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly
executed by the Issuers.


 


Dated:             [                                   ]


 


	
   

  	
  [SPIRIT]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


 


CERTIFICATE
OF AUTHENTICATION


 


This is one of the Class [           ]
Notes referred to in the within-mentioned Indenture.


 


	
   

  	
  CITIBANK, N.A., not in its individual

  
	
   

  	
  capacity, but solely in its capacity as

  
	
   

  	
  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


A-2-7

















 


ASSIGNMENT


 


FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto


	
   

  
	
   

  
	
   

  



(please print or typewrite name and address including postal zip code
of assignee) 



the within Net-Lease Mortgage Note and hereby authorize(s) the registration of
transfer of such Note to assignee on the Note Register.


 


I (we) further direct the Note Registrar to
issue a new Net-Lease Mortgage Note of a like Note Principal Balance and Class to
the above named assignee and deliver such Note to the following address:


	
   

  
	
   

  
	
   

  
	
  Dated:

  	
   

  



 


 


	
   

  	
   

  
	
   

  	
  Signature by or on behalf of Assignor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guaranteed

  



 


 


PAYMENT INSTRUCTIONS


 


The Assignee should include the following for
purposes of payment:


 


Payments shall, if permitted, be made by wire
transfer or otherwise, in immediately available funds, to                                          

for the account of                                                                                                                                                                                                                .



Payments made by check (such check to be made payable to
                                                                                                     )

and all applicable statements and notices should be mailed to
                                                                                                    .


 


This information is provided by
                                                       ,
the Assignee named above, or
                                                                                     ,
as its agent.


 


A-2-8

















 


EXHIBIT A-3


 


FORM OF
DEFINITIVE GLOBAL NET-LEASE MORTGAGE NOTE


 


DEFINITIVE
NOTE


 


SERIES [        ],
CLASS [         ] NOTE


 


	
  Note Rate: [      ]%

  	
   

  	
  Aggregate Series Principal Balance as of the Series Closing
  Date: 
  $[                  ]

  
	
   

  	
   

  	
   

  
	
  Series Cut-off Date:
  [          ],
  200[  ]

  	
   

  	
  Note Principal Balance of the Class [    ]
  Notes as of the Series Closing Date:
  $[          ]

  
	
   

  	
   

  	
   

  
	
  Series Closing Date: 
  [          ],
  200[  ]

  	
   

  	
  Initial Note Principal Balance of this Class [    ]
  Note: 
  $[                  ]

  
	
   

  	
   

  	
   

  
	
  First Payment Date:
  [          ],
  200[  ]

  	
   

  	
  CUSIP No.                      

  
	
   

  	
   

  	
   

  
	
  Issuer(s):  [SPIRIT]

  	
   

  	
  ISIN No.                          

  
	
   

  	
   

  	
   

  
	
  Indenture Trustee:

  Citibank, N.A.

  	
   

  	
  Property Manager and Special Servicer:  

  Spirit Finance Corporation

  
	
   

  	
   

  	
   

  
	
  Note No.    

  	
   

  	
  Legal Final Payment Date: 
  [                        ]

  



 


A-3-1

















 


THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), ANY STATE
SECURITIES LAWS IN THE UNITED STATES OR THE SECURITIES LAWS OF ANY OTHER
JURISDICTION, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT AS PERMITTED BY THIS LEGEND. THE HOLDER HEREOF, BY ITS
ACCEPTANCE OF THIS NOTE, REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT WILL NOT
REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE EXCEPT IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND EXCEPT (A) IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE SELLER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, PROVIDED THAT SUCH PURCHASER DELIVERS ALL DOCUMENTS AND
CERTIFICATIONS AS THE INDENTURE TRUSTEE MAY REASONABLY REQUIRE; OR (B) OUTSIDE
THE UNITED STATES IN “OFFSHORE TRANSACTIONS” TO NON-US PERSONS IN COMPLIANCE
WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT.


 


THE HOLDER HEREOF, BY ACCEPTING THIS NOTE, AGREES TO TREAT THIS NOTE
FOR PURPOSES OF UNITED STATES FEDERAL, STATE AND LOCAL INCOME OR FRANCHISE
TAXES AND ANY OTHER TAXES IMPOSED ON OR MEASURED BY INCOME, AS INDEBTEDNESS OF
THE ISSUER[S] AND TO REPORT THIS NOTE ON ALL APPLICABLE TAX RETURNS IN A MANNER
CONSISTENT WITH SUCH TREATMENT.


 


[CERTAIN PAYMENTS WITH RESPECT TO THIS NOTE WILL BE SUBORDINATE TO
PAYMENTS WITH RESPECT TO THE CLASS [       ]
NOTES AS AND TO THE EXTENT DESCRIBED IN THE INDENTURE.](1)


 


REDUCTIONS OF THE NOTE PRINCIPAL BALANCE OF THIS NOTE MAY BE MADE
MONTHLY AS SET FORTH IN THE INDENTURE REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING NOTE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ABOVE.


 


THE NOTES WILL HAVE THE BENEFIT OF THE CERTIFICATE
GUARANTY INSURANCE POLICY DESCRIBED HEREIN (THE “INSURANCE POLICY”). THE NOTES
ARE SOLELY OBLIGATIONS OF THE ISSUER[S] AND DO NOT REPRESENT OBLIGATIONS OF ANY
OTHER PERSON, INCLUDING, WITHOUT LIMITATION, THE INDENTURE TRUSTEE, THE
COLLATERAL AGENT, THE


 






(1)                                  Include
in Class [    ] Note only.


 


A-3-2

















 


PROPERTY MANAGER, THE SUPPORT PROVIDER, THE
SPECIAL SERVICER, THE BACK-UP MANAGER, THE INITIAL PURCHASERS OR ANY OF THEIR
RESPECTIVE AFFILIATES. THE NOTES ARE NOT INSURED OR GUARANTEED BY ANY
GOVERNMENTAL AGENCY OR INSTRUMENTALITY. EACH NOTE IS ONE OF A SERIES OF
NOTES, ALL OF WHICH ARE PAYABLE SOLELY FROM THE PROCEEDS OF THE COLLATERAL POOL
AND FROM DRAWINGS ON THE INSURANCE POLICY. ADDITIONAL SERIES OF NOTES
SECURED PRO RATA BY THE COLLATERAL POOL MAY ALSO BE ISSUED IN THE FUTURE.
PROSPECTIVE INVESTORS SHOULD MAKE AN INVESTMENT DECISION BASED UPON AN ANALYSIS
OF THE SUFFICIENCY OF THE COLLATERAL POOL AND THE INSURANCE POLICY.


 


A-3-3

















 


The Issuer[s], a Delaware limited liability company, for value
received, hereby promises to pay to [                                                ]
or its registered assigns, upon presentation and surrender of this Note (this “Note”), the principal sum of [                                                ]
United States dollars ($[                           ])
on the Legal Final Payment Date referred to above, together with interest
hereon from time to time in the amounts and at the times specified in the
Indenture referred to below.


 


This Note is one of a series of Net-Lease Mortgage Notes
(collectively, the “Notes”)
issued by the Issuer[s] (each, a “Class”)
pursuant to an Amended and Restated Master Indenture, to be dated on or about March 17,
2006 (as amended or supplemented thereafter, the “Master
Indenture”), between Spirit
Master Funding, LLC (as an issuer “Issuer”)
and Citibank, N.A., as indenture trustee (in such capacity, the “Indenture Trustee”), as
supplemented by the Series [            ]
Indenture Supplement (together with the Master Indenture and any other
indenture supplement thereto (each, a “Series Supplement”),
the “Indenture”), and will be payable
solely from the assets of the Issuers (individually, the “Collateral”
and, collectively, the “Collateral Pool”)
[and from drawings on the Insurance Policy]. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Indenture. This Note is issued under and is subject to the terms, provisions
and conditions of the Indenture, to which Indenture the Holder of this Note by
virtue of the acceptance hereof assents and by which such Holder is bound.


 


Pursuant to the terms of the Indenture, payments of any interest,
principal and other amounts payable on this Note shall be made on the Class of
Notes to which this Note belongs, pro rata among
the Notes of such Class based on their respective Note Principal Balance,
on the 20th day of each calendar month or, if any such day is not a Business
Day, then on the next succeeding Business Day (each, a “Payment
Date”), commencing on the first Payment Date specified above, to
the Person in whose name this Note is registered at the close of business on
the related Record Date. All payments made under the Indenture on this Note
will be made by the Indenture Trustee by wire transfer of immediately available
funds to the account of the Person entitled thereto at a bank or other entity
having appropriate facilities therefor, if such Noteholder shall have provided
the Indenture Trustee with wiring instructions prior to the related Record Date
(which wiring instructions may be in the form of a standing order
applicable to all subsequent payments), or otherwise by check mailed to the
address of such Noteholder as it appears in the Note Register as of the related
Record Date. Notwithstanding the foregoing, the final payment on this Note on
the Final Payment Date will be made in like manner, but only upon presentation
and surrender of this Note at the offices of the Indenture Trustee or such
other location specified in the notice to the Holder hereof of such final
payment. Notwithstanding anything herein to the contrary, no payments will be
made with respect to a Note that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.


 


The Notes are limited in right of payment to certain distributions on
the Mortgage Loans, Mortgaged Properties and Leases and the other Collateral
included in the Collateral Pool, all as more specifically set forth herein and
in the Indenture.


 


Any payment to the Holder of this Note in reduction of the Note
Principal Balance hereof is binding on such Holder and all future Holders of
this Note and any Note issued


 


A-3-4

















 


upon the transfer hereof or in exchange
therefor or in lieu hereof whether or not notation of such payment is made upon
this Note.


 


The Class of Notes to which this Note belongs are issuable in
fully registered form only without coupons in minimum denominations
specified in the Indenture. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for new Notes of the
same Class in authorized denominations of a like Percentage Interest, as
requested by the Holder surrendering the same.


 


No transfer of this Note or any interest herein may be made unless
that transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. No person is obligated to register or qualify
any of the Notes under the Securities Act or any other securities law or to
take any action not otherwise required under the Indenture to permit the
transfer of any Note or interest therein without registration or qualification.


 


Each transferee of a Note will be deemed to have represented, warranted
and agreed that either (i) such transferee is not, and is not purchasing
such Note on behalf of, as a fiduciary of, as trustee of, or with the assets
of, a Plan or (ii)(A) such Note is rated investment grade or better as of
the date of the purchase, (B) such transferee believes that such Note is
properly treated as indebtedness without substantial equity features for
purposes of Department of Labor Regulations and agrees to so treat such Note
and (C) such transferee’s acquisition and continued holding of such Note
or Ownership Interest therein will not give rise to a non-exempt prohibited
transaction described in Section 406 of ERISA or Section 4975 of the
Code (or any materially similar applicable law).


 


As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register upon
surrender of this Note for registration of transfer at the offices of the Note
Registrar, duly endorsed by, or accompanied by a written instrument of transfer
in the form satisfactory to the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of the same Class in authorized denominations evidencing
the same Aggregate Series Principal Balance will be issued to the
designated transferee or transferees.


 


No service charge will be imposed for any transfer or exchange of this
Note, but the Indenture Trustee or the Note Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of this Note.


 


The Issuer[s], the Indenture Trustee, the Note Registrar and any agent
of any thereof may treat the Person in whose name this Note is registered
as the owner hereof for all purposes, and none of the Issuer[s], the Indenture
Trustee, the Note Registrar or any such agent shall be affected by notice to
the contrary.


 


The Indenture, the Property Management Agreement, any Purchase and Sale
Agreements and the Notes are subject to amendment, including by supplemental
indenture, from


 


A-3-5

















 


time to time in accordance with the terms
thereof, including in circumstances which do not require the consent of any or
all Noteholders.


 


Unless the certificate of authentication hereon has been executed by
the Note Registrar, by manual signature, the Note shall not be entitled to any
benefit under the Indenture or be valid for any purpose.


 


The registered Holder hereof, by its acceptance hereof, agrees that it
will look solely to the Collateral Pool (to the extent of its rights therein)
and the Insurance Policy for payments hereunder.


 


The Indenture Trustee makes no representation as to the validity or
sufficiency of this Note (other than as to its signature set forth hereon
below).


 


This Note shall be governed by and construed in accordance with the
laws of the State of New York (including Section 5-1401 of the General
Obligations Law of the State of New York, but otherwise without regard to
conflict of laws principles).


 


A-3-6

















 


IN WITNESS WHEREOF, the Issuers have caused this instrument to be duly
executed by the Issuers.


 


Dated:             [                      ]


 


	
   

  	
  [SPIRIT]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


 


CERTIFICATE
OF AUTHENTICATION


 


This is one of the Class [        ]
Notes referred to in the within-mentioned Indenture.


 


	
   

  	
  CITIBANK, N.A., not in its individual

  
	
   

  	
  capacity, but solely in its capacity as

  
	
   

  	
  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 


A-3-7

















 


ASSIGNMENT


 


FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto 




	
   

  
	
   

  
	
   

  



(please print or typewrite name and address including postal zip code
of assignee) 



the within Net-Lease Mortgage Note and hereby authorize(s) the registration of
transfer of such Note to assignee on the Note Register.


 


I (we) further direct the Note Registrar to
issue a new Net-Lease Mortgage Note of a like Note Principal Balance and Class to
the above named assignee and deliver such Note to the following address:


	
   

  
	
   

  
	
   

  
	
  Date:

  	
   

  



 


 


	
   

  	
   

  
	
   

  	
  Signature by or on behalf of Assignor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature Guaranteed

  



 


PAYMENT INSTRUCTIONS


 


The Assignee should include the following for
purposes of payment:


 


Payments shall, if permitted, be made by wire
transfer or otherwise, in immediately available funds, to                                          

for the account of                                                                                                                                                                                                                .



Payments made by check (such check to be made payable to
                                                                                            )

and all applicable statements and notices should be mailed to
                                                                                           .


 


This information is provided by                                                             ,
the Assignee named above, or                                                                                   ,
as its agent.


 


A-3-8

















 


EXHIBIT B


 


FORM OF
TRUSTEE REPORT


 


B-1

















 


EXHIBIT C-1


 


FORM OF
TRANSFEROR CERTIFICATE


FOR
TRANSFERS OF DEFINITIVE NOTES


 




	
   

  	
  [Date]

  






 


Citibank, N.A.


111 Wall Street, 15th Floor


New York, New York 10005


Attention:  15th Floor
Window


 


Re:                               Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ] (the “Notes”)


 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the transfer by                     
(the “Transferor”) to                     
(the “Transferee”) of Class A-[1][2]
Notes having an initial Aggregate Series Principal Balance as of [         ],
2005 (the “Closing Date”) of $[                    ]
(the “Transferred Notes”). The Notes,
including the Transferred Notes, were issued pursuant to an Amended and
Restated Master Indenture, to be dated on or about March 17, 2006 (as
amended or supplemented thereafter, the “Master Indenture”),
between Spirit Master Funding, LLC (the “Issuer”) and Citibank, N.A.,
as indenture trustee (in such capacity, the “Indenture
Trustee”), as supplemented by the Series 200[ ]-[ ]
Supplement (together with the Master Indenture and any other indenture
supplement thereto (each, a “Supplement”),
the “Indenture”). All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Indenture. The Transferor hereby certifies, represents and
warrants to you, as Note Registrar, and for the benefit of the Issuer, the
Insurer, the Indenture Trustee and the Transferee, that:


 


1.                                       The
Transferor is the lawful owner of the Transferred Notes with the full right to
transfer such Notes free from any and all claims and encumbrances whatsoever.


 


2.                                       Neither
the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Note, any interest in
any Note or any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a transfer, pledge or other disposition of any Note,
any interest in any Note or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Note,
any interest in any Note or any other similar security with any person in any
manner, (d) made any general solicitation by means of general advertising
or in any other manner, or (e) taken any other action, which (in the case
of any of the acts described in clauses (a) through (e) hereof)
would constitute a distribution of any Note under the Securities Act of 1933,
as amended (the “Securities Act”),
or would render the disposition of any Note a violation of Section 5 of
the Securities Act or any state securities laws, or would require registration
or qualification of any Note pursuant to the Securities Act or any state
securities laws.


 


C-1-1

















 


[3.                                   The
Transferor and any person acting on behalf of the Transferor in this matter
reasonably believe that the Transferee is a Non-U.S. Person that is not
acquiring the Transferred Notes for the account or benefit of any U.S. Person
(as defined in Regulation S) and is acquiring the Transferred Notes in an
offshore transaction.]


 


[3.                                   The
Transferor and any person acting on behalf of the Transferor in this matter
reasonably believe that the Transferee is a “qualified institutional buyer” as
that term is defined in Rule 144A (“Rule 144A”)
under the Securities Act (a “Qualified Institutional
Buyer”) purchasing for its own account or for the account of a
Qualified Institutional Buyer. In determining whether the Transferee is a
Qualified Institutional Buyer, the Transferor and any person acting on behalf
of the Transferor in this matter have relied upon the following method(s) of
establishing the Transferee’s ownership and discretionary investments of
securities (check one or more):


 


o                                    (a)                                  The Transferee’s most
recent publicly available financial statements, which statements present the
information as of a date within 16 months preceding the date of sale of the
Transferred Note in the case of a U.S. purchaser and within 18 months preceding
such date of sale for a foreign purchaser; or


 


o                                    (b)                                 The most recent
publicly available information appearing in documents filed by the Transferee
with the SEC or another United States federal, state, or local governmental
agency or self-regulatory organization, or with a foreign governmental agency
or self-regulatory organization, which information is as of a date within 16
months preceding the date of sale of the Transferred Note in the case of a U.S.
purchaser and within 18 months preceding such date of sale for a foreign
purchaser; or


 


o                                    (c)                                  The most recent
publicly available information appearing in a recognized securities manual,
which information is as of a date within 16 months preceding the date of sale
of the Transferred Note in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser; or


 


o                                    (d)                                 A certification by the
chief financial officer, a person fulfilling an equivalent function, or other
executive officer of the Transferee, specifying the amount of securities owned
and invested on a discretionary basis by the Transferee as of a specific date
on or since the close of the Transferee’s most recent fiscal year, or, in the
case of a Transferee that is a member of a “family of investment companies”, as
that term is defined in Rule 144A, a certification by an executive officer
of the investment adviser specifying the amount of securities owned by the “family
of investment companies” as of a specific date on or since the close of the
Transferee’s most recent fiscal year.


 


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4.                                       The
Transferor and any person acting on behalf of the Transferor understand that in
determining the aggregate amount of securities owned and invested on a
discretionary basis by an entity for purposes of establishing whether such
entity is a Qualified Institutional Buyer:


 


(a)                                  the
following instruments and interests shall be excluded: securities of issuers
that are affiliated with the Transferee; securities that are part of an
unsold allotment to or subscription by the Transferee, if the Transferee is a
dealer; securities of issuers that are part of the Transferee’s “family of
investment companies”, if the Transferee is a registered investment company;
bank deposit notes and certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase agreement; and
currency, interest rate and commodity swaps;


 


(b)                                 the
aggregate value of the securities shall be the cost of such securities, except
where the entity reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities may be
valued at market;


 


(c)                                  securities
owned by subsidiaries of the entity that are consolidated with the entity in
its financial statements prepared in accordance with generally accepted
accounting principles may be included if the investments of such
subsidiaries are managed under the direction of the entity, except that, unless
the entity is a reporting company under Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended, securities owned by such
subsidiaries may not be included if the entity itself is a majority-owned
subsidiary that would be included in the consolidated financial statements of
another enterprise.


 


5.                                       The
Transferor or a person acting on its behalf has taken reasonable steps to
ensure that the Transferee is aware that the Transferor is relying on the
exemption from the provisions of Section 5 of the Securities Act provided
by [Rule 144A][Regulation S].


 


6.                                       The
Transferor or a person acting on its behalf has furnished, or caused to be
furnished, to the Transferee all information regarding (a) the Transferred
Notes and payments thereon, (b) the nature and performance of the Leases
and the Mortgaged Properties, (c) the Indenture and the Collateral, and (d) any
credit enhancement mechanism associated with the Transferred Notes, that the
Transferee has requested.


 


C-1-3

















 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Transferor)

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


C-1-4

















 


EXHIBIT C-2


 


FORM OF
TRANSFEREE CERTIFICATE


FOR
TRANSFERS OF DEFINITIVE NOTES


 




	
   

  	
  [Date]

  






 


Citibank, N.A.


111 Wall Street, 15th Floor


New York, New York 10005


Attention:  15th Floor
Window


 


Re:                               Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ] (the “Notes”)


 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the transfer by                                 
(the “Transferor”) to                        
(the “Transferee”) of Class A-[1][2]
Notes (the “Transferred Notes”) having an
initial Note Principal Balance as of [             ],
200[ ] of $[               ].
The Notes, including the Transferred Notes, were issued pursuant to an Amended
and Restated Master Indenture, to be dated on or about March 17, 2006 (as
amended or supplemented thereafter, the “Master Indenture”),
between Spirit Master Funding, LLC (the “Issuer”) and Citibank, N.A.,
as indenture trustee (in such capacity, the “Indenture
Trustee”), as supplemented by the Series 200[ ]-[ ]
Supplement (together with the Master Indenture and any other indenture
supplement thereto (each, a “Supplement”),
the “Indenture”). All terms used herein
and not otherwise defined shall have the meanings set forth in the Indenture.
The Transferee hereby certifies, represents and warrants to you, as Note
Registrar, and for the benefit of the Issuer, the Insurer, the Indenture
Trustee and the Transferor, that:


 


1.                                       The
Transferee understands that (a) the Transferred Notes have not been and
will not be registered or qualified under the Securities Act of 1933, as
amended (the “Securities Act”), or any state
securities law, (b) none of the Issuer[s] or the Indenture Trustee is
required to so register or qualify the Transferred Notes, (c) the
Transferred Notes may be resold only if registered and qualified pursuant
to the provisions of the Securities Act or any state securities law, or if an
exemption from such registration and qualification is available, (d) the
Indenture contains restrictions regarding the transfer of the Transferred Notes
and (e) the Transferred Notes will bear a legend to the foregoing effect.


 


2.                                       The
Transferee is acquiring the Transferred Notes for its own account for investment
only and not with a view to or for sale in connection with any distribution
thereof in any manner that would violate the Securities Act or any applicable
state securities laws.


 


3.                                       The
Transferee is (a) a Non-U.S. Person, is not acquiring the Notes or
interests therein for the account or benefit of any U.S. Person (as that term
is defined in Regulation S under the Securities Act) and is acquiring the
Transferred Notes in an offshore transaction; or (b) a “qualified
institutional buyer” (a “Qualified Institutional
Buyer”) as that term is defined in Rule 144A (“Rule 144A”) under the
Securities Act and has completed one of


 


C-2-1

















 


the forms of certification to that effect
attached hereto as Annex 1 and Annex 2. The Transferee is aware
that the sale to it of the Transferred Notes is being made in reliance on Rule 144A
or pursuant to Regulation S under the Securities Act, as applicable. The
Transferee is acquiring the Transferred Notes for its own account or for the
account of a Qualified Institutional Buyer or another Non-U.S. Person in an
offshore transaction, and understands that such Transferred 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 Securities Act. The Transferee
is (a) a substantial, sophisticated institutional investor having such
knowledge and experience in financial and business matters, and, in particular,
in such matters related to securities similar to the Transferred Notes, such
that it is capable of evaluating the merits and risks of investment in the
Transferred Notes, and (b) able to bear the economic risks of such an
investment.


 


4.                                       The
Transferee has reviewed and understands the restrictions on transfer of the
Transferred Notes and acknowledges that such transfer restrictions may adversely
affect the liquidity of the Transferred Notes.


 


5.                                       The
Transferee understands that each Noteholder, by virtue of its acceptance
thereof, assents to, and agrees to be bound by, the terms, provisions and
conditions of the Indenture, including those relating to the transfer
restrictions.


 


6.                                       The
Transferee understands that the information contained in the Memorandum (as
defined below) and all such additional information, as well as all information
to be received by the Transferee as a Noteholder, is confidential and agrees to
keep such information confidential (a) by not disclosing any such
information other than to a person who needs to know such information and who
has agreed to keep such information confidential and (b) by not using any
such information other than for the purpose of evaluating an investment in the
Transferred Notes; provided, however, that any such information may be
disclosed as required by applicable law if the Issuer is given written notice
of such requirement sufficient to enable the Issuer to seek a protective order
or other appropriate remedy in advance of disclosure.


 


7.                                       The
Transferee has been furnished with, and has had an opportunity to review (a) a
copy of the Private Placement Memorandum dated [         ],
200[ ], relating to the Transferred Notes (the “Memorandum”),
(b) a copy of the Indenture and the Transferred Notes and (c) such
other information concerning the Transferred Notes and payments thereon, the
Mortgaged Properties and Leases and the other Collateral, the Issuer[s] and the
Insurer and the Insurance Policy as has been requested by the Transferee from
the Issuer[s] or the Transferor and is relevant to the Transferee’s decision to
purchase the Transferred Notes. The Transferee has had any questions arising
from such review answered by the Issuer[s] or the Transferor to the
satisfaction of the Transferee.


 


8.                                       The
Transferee has not and will not nor has it authorized or will it authorize any
person to (a) offer, pledge, sell, dispose of or otherwise transfer any
Transferred Note, any interest in any Transferred Note or any other similar
security from any person in any manner, (b) otherwise approach or
negotiate with respect to any Transferred Note, any interest in


 


C-2-2

















 


any Transferred Note or any other similar
security with any person in any manner, (c) make any general solicitation
by means of general advertising or in any other manner or (d) take any
action, that (as to any of (a) through (d) above) would constitute a
distribution of any Transferred Note under the Securities Act, that would
render the disposition of any Transferred Note a violation of Section 5 of
the Securities Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Transferee will not sell or
otherwise transfer any of the Transferred Notes, except to a person reasonably
believed to be (x) a Non-U.S. Person that is not acquiring the Transferred
Notes for the account or benefit of any U.S. Person (as defined in Regulation
S) and is acquiring the Transferred Notes or interests therein in an offshore
transaction, or (y) 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 otherwise in accordance with the terms and provisions of the Indenture.


 


9.                                       The
Transferee is duly authorized to purchase the Transferred Notes acquired
thereby, and its purchase of investments having the characteristics of the
Notes acquired thereby is authorized under, and not directly or indirectly in
contravention of, any law, charter, trust instrument or other operative
document, investment guidelines or list of permissible or impermissible
investments applicable to the investor.


 


10.                                 If
the Transferee is acquiring any Transferred Notes or interests therein as a
fiduciary or agent for one or more accounts, it has sole investment discretion
with respect to each such account and it has full power to make the foregoing
acknowledgments, representations, warranties and agreements with respect to
each such account.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Transferee)

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
				



 


C-2-3

















 


ANNEX 1 TO
EXHIBIT C-2


 


QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SECURITIES ACT RULE 144A


 


[for Transferees other than Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name
of Transferor (the “Transferor”)] and [name of Note Registrar], as Note
Registrar, with respect to the Notes being transferred (the “Transferred Notes”) as described in
the Transferee Certificate to which this certification relates and to which
this certification is an Annex:


 


1.                                       As indicated
below, the undersigned is the chief financial officer, a person fulfilling an
equivalent function, or other executive officer of the entity purchasing the
Transferred Notes (the “Transferee”).


 


2.                                       The Transferee
is a “qualified institutional buyer” as that term is defined in Rule 144A
(“Rule 144A”) under the
Securities Act of 1933, as amended (the “Securities Act”),
because (i) the Transferee owned and/or invested on a discretionary basis
$                                (1) in
securities (other than the excluded securities referred to below) as of the end
of the Transferee’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the
criteria in the category marked below:


 


o                                    Corporation, etc.
The Transferee is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business trust,
partnership, or any organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.


 


o                                    Bank. The
Transferee (a) is a national bank or a banking institution organized under
the laws of any State, U.S. territory or the District of Columbia, the business
of which is substantially confined to banking, and is supervised by the State
or territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements, a
copy of which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Note in the case of a U.S. bank, and not more
than 18 months preceding such date of sale for a foreign bank or equivalent
institution.


 


o                                    Savings and Loan.
The Transferee (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar institution,
which is supervised and examined by a State or Federal


 






(1)                                  Transferee
must own  and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee is a
dealer, and, in that case, Transferee must own and/or invest on a discretionary
basis at least $10,000,000 in securities.


 


C-2-4

















 


authority having supervision over any such
institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months preceding the date of
sale of the Note in the case of a U.S. savings and loan association, and not
more than 18 months preceding such date of sale for a foreign savings and loan
association or equivalent institution.


 


o                                    Broker-dealer.
The Transferee is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended.


 


o                                    Insurance
Company. The Transferee is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.


 


o                                    State or Local
Plan. The Transferee is a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its employees.


 


o                                    ERISA Plan.
The Transferee is an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974.


 


o                                    Investment
Advisor. The Transferee is an investment advisor registered under the
Investment Advisers Act of 1940, as amended.


 


o                                    Other.
(Please supply a brief description of the entity and a cross-reference to the
paragraph and subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered investment companies
should complete Annex 2 rather than this Annex 1.)




3.                                       The term “securities” as used herein does
not include (i) securities of issuers that are affiliated with the
Transferee, (ii) securities that are part of an unsold allotment to
or subscription by the Transferee, if the Transferee is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee did not include any of
the securities referred to in this paragraph.


 


4.                                       For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, the Transferee used the cost of such
securities to the Transferee, unless the Transferee reports its securities
holdings in its financial


 


C-2-5

















 


statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market.
Further, in determining such aggregate amount, the Transferee may have
included securities owned by subsidiaries of the Transferee, but only if such
subsidiaries are consolidated with the Transferee in its financial statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Transferee’s direction.
However, such securities were not included if the Transferee is a
majority-owned, consolidated subsidiary of another enterprise and the
Transferee is not itself a reporting company under the Securities Exchange Act
of 1934, as amended.


 


5.                                       The Transferee
acknowledges that it is familiar with Rule 144A and understands that the
Transferor and other parties related to the Transferred Notes are relying and
will continue to rely on the statements made herein because one or more sales
to the Transferee may be in reliance on Rule 144A.


 


o                                    o                                                                                    Will
the Transferee be purchasing the Transferred Notes


Yes                            No                                                                                only
for the Transferee’s own account?


 


6.                                       If the answer to
the foregoing question is “no”, then in each case where the Transferee is
purchasing for an account other than its own, such account belongs to a third
party that is itself a “qualified institutional buyer” within the meaning of Rule 144A,
and the “qualified institutional buyer” status of such third party has been
established by the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.


 


7.                                       The Transferee
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Transferee’s purchase of the Transferred Notes will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above,
the Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
purchase, promptly after they become available.


 


	
   

  	
   

  	
   

  
	
   

  	
  Print Name of Transferee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
							



 


C-2-6

















 


ANNEX 2 TO
EXHIBIT C-2


 


QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SECURITIES ACT RULE 144A


 


[for Transferees that are Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name
of Transferor (the “Transferor”)] and [name of Note
Registrar], as Note Registrar, with respect to
the Notes being transferred (the “Transferred Notes”)
as described in the Transferee Certificate to which this certification relates
and to which this certification is an Annex:


 


1.                                       As indicated
below, the undersigned is the chief financial officer, a person fulfilling an
equivalent function, or other executive officer of the entity purchasing the
Transferred Notes (the “Transferee”)
or, if the Transferee is a “qualified institutional buyer” as that term is
defined in Rule 144A (“Rule 144A”)
under the Securities Act of 1933, as amended (the “Securities
Act”), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the “Adviser”).


 


2.                                       The Transferee
is a “qualified institutional buyer” as defined in Rule 144A because (i) the
Transferee is an investment company registered under the Investment Company Act
of 1940, as amended, and (ii) as marked below, the Transferee alone owned
and/or invested on a discretionary basis, or the Transferee’s Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee’s most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee’s Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee’s Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity were
valued at market.


 


o                                    The Transferee
owned and/or invested on a discretionary basis $
                  
in securities (other than the excluded securities referred to below) as of the
end of the Transferee’s most recent fiscal year (such amount being calculated
in accordance with Rule 144A).


 


o                                    The Transferee is part of
a Family of Investment Companies which owned in the aggregate $                  
in securities (other than the excluded securities referred to below) as of the
end of the Transferee’s most recent fiscal year (such amount being calculated
in accordance with Rule 144A).


 


3.                                       The term “Family of Investment Companies” as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by virtue
of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other).


 


C-2-7

















 


4.                                       The term “securities” as used herein does not
include (i) securities of issuers that are affiliated with the Transferee
or are part of the Transferee’s Family of Investment Companies, (ii) bank
deposit notes and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of determining
the aggregate amount of securities owned and/or invested on a discretionary
basis by the Transferee, or owned by the Transferee’s Family of Investment
Companies, the securities referred to in this paragraph were excluded.


 


5.                                       The Transferee
is familiar with Rule 144A and understands that the parties to which this
certification is being made are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee will be in
reliance on Rule 144A.


 


o                                    o                                                                                    Will
the Transferee be purchasing the Transferred Notes


Yes                            No                                                                                only
for the Transferee’s own account?


 


6.                                       If the answer to
the foregoing question is “no”, then in each case where the Transferee is
purchasing for an account other than its own, such account belongs to a third
party that is itself a “qualified institutional buyer” within the meaning of Rule 144A,
and the “qualified institutional buyer” status of such third party has been
established by the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.


 


7.                                       The undersigned
will notify the parties to which this certification is made of any changes in
the information and conclusions herein. Until such notice, the Transferee’s
purchase of the Transferred Notes will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.


 


	
   

  	
   

  	
   

  
	
   

  	
  Print Name of Transferee or Adviser

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  IF AN ADVISER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name of Transferee

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
							



 


C-2-8

















 


EXHIBIT D-1


 


FORM OF
TRANSFER CERTIFICATE FOR TRANSFERS FROM


 


REGULATION
S GLOBAL NOTE TO RESTRICTED GLOBAL NOTE


 


[DATE]


 


Citibank, N.A.


111 Wall Street, 15th Floor


New York, New York 10005


Attention:  15th Floor
Window


 


Re:                               Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ] (the “Notes”)


 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the transfer by [        ]
(the “Transferor”) to [        ]
(the “Transferee”) of [beneficial
interests in] Class A-[1][2] Notes evidenced by Regulation S Global Notes
(the “Transferred Notes”) having an
initial Note Principal Balance as of [          ],
200[ ] of $[                ]
evidencing a [  ]% Percentage Interest in such Class. The Transferor
has requested a transfer of such Transferred Note for a [beneficial interest in
a] Restricted Global Note evidencing Notes of the same Class, in a like
principal balance to be registered in the name of the Transferee. The Notes,
including the Transferred Notes, were issued pursuant to an Amended and
Restated Master Indenture, to be dated on or about March 17, 2006 (as
amended or supplemented thereafter, the “Master Indenture”),
between Spirit Master Funding, LLC (the “Issuer”) and Citibank, N.A.,
as indenture trustee (in such capacity, the “Indenture
Trustee”), as supplemented by the Series 200[ ]-[ ]
Supplement (together with the Master Indenture and any other indenture
supplement thereto (each, a “Supplement”),
the “Indenture”). All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Indenture. The Transferee hereby certifies, represents and
warrants to you, as Note Registrar, and for the benefit of the Issuer, the
Indenture Trustee and the Transferor, that:


 


1.                                       The
Transferee is a “qualified institutional buyer” (a “Qualified
Institutional Buyer”) as that term is defined in Rule 144A
(“Rule 144A”) under the
Securities Act of 1933, as amended (the “Securities Act”),
and has completed one of the forms of certification to that effect attached
hereto as Annex A and Annex B. The Transferee is aware that the
sale to it of the Transferred Notes is being made in reliance on Rule 144A.
The Transferee is acquiring the Transferred Notes for its own account or for
the account of a Qualified Institutional Buyer, and understands that such
Transferred 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 Securities Act.


 


D-1-1

















 


2.                                       The
Transferee has been furnished with all information regarding (a) the
Transferred Notes and distributions thereon, (b) the nature, performance
and servicing of the Leases and the Mortgaged Properties, (c) the
Indenture and the Collateral and (d) any credit enhancement mechanism
associated with the Transferred Notes, that it has requested.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Transferee)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-1-2

















 


ANNEX A TO
EXHIBIT D-1


 


QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SECURITIES ACT RULE 144A


 


[for
Transferees other than Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name of Transferor]
(the “Transferor”) and [name of Note
Registrar], as Note Registrar, with respect to the Notes being transferred (the
“Transferred Notes”) as described in
the Transferee Certificate to which this certification relates and to which
this certification is an Annex:


 


1.                                       As
indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Notes (the “Transferee”).


 


2.                                       The
Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A
(“Rule 144A”) under the
Securities Act of 1933, as amended (the “Securities Act”),
because (i) the Transferee owned and/or invested on a discretionary basis
$
                              
(1) in securities (other than the excluded securities referred to below)
as of the end of the Transferee’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the Transferee
satisfies the criteria in the category marked below:


 


o                                    Corporation,
etc. The Transferee is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business trust,
partnership, or any organization described in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended.


 


o                                    Bank.
The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District of
Columbia, the business of which is substantially confined to banking and is
supervised by the State or territorial banking commission or similar official
or is a foreign bank or equivalent institution, and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached  hereto, as of a date not more than 16 months preceding the
date of sale of the Note in the case of a U.S. bank, and not more than 18
months preceding such date of sale for a foreign bank or equivalent
institution.


 


o                                    Savings
and Loan. The Transferee (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution that is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an audited net
worth of at least $25,000,000


 






(1)                                  Transferee
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Transferee is a dealer, and, in that case, Transferee must
own and/or invest on a discretionary basis at least $10,000,000 in securities.


 


D-1-3

















 


as demonstrated in its latest annual
financial statements, a copy of which is
attached  hereto, as of a
date not more than 16 months preceding the date of sale of the Note in the case
of a U.S. savings and loan association, and not more than 18 months preceding
such date of sale for a foreign savings and loan association or equivalent
institution.


 


o                                    Broker-dealer.
The Transferee is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”).


 


o                                    Insurance
Company. The Transferee is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.


 


o                                    State
or Local Plan. The Transferee is a plan established and maintained by a
State, its political subdivisions, or any agency or instrumentality of the
State or its political subdivisions, for the benefit of its employees.


 


o                                    ERISA
Plan. The Transferee is an employee benefit plan within the meaning of Title
I of the Employee Retirement Income Security Act of 1974.


 


o                                    Investment
Advisor. The Transferee is an investment advisor registered under the
Investment Advisers Act of 1940, as amended.


 


o                                    Other.
(Please supply a brief description of the entity and a cross-reference to the
paragraph and subparagraph under subsection (a)(1) of Rule 144A
pursuant to which it qualifies. Note that registered investment companies
should complete Annex B rather than this Annex A.) 


 


 


 


3.                                       The
term “securities” as used herein does not include (i) securities of issuers that are
affiliated with the Transferee, (ii) securities that are part of an
unsold allotment to or subscription by the Transferee, if the Transferee is a
dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, the
Transferee did not include any of the securities referred to in this paragraph.


 


4.                                       For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, the Transferee used the
cost of such securities to the Transferee, unless the Transferee reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities were valued at market.


 


D-1-4

















 


Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of the Transferee, but only if such subsidiaries are consolidated with the
Transferee in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries are
managed under the Transferee’s direction. However, such securities were not
included if the Transferee is a majority-owned, consolidated subsidiary of
another enterprise and the Transferee is not itself a reporting company under
the Exchange Act.


 


5.                                      The
Transferee acknowledges that it is familiar with Rule 144A and understands
that the Transferor and other parties related to the Transferred Notes are
relying and will continue to rely on the statements made herein because one or
more sales to the Transferee may be in reliance on Rule 144A.


 


o                                    o                                    Will
the Transferee be purchasing the Transferred Notes


Yes                            No                                only for the Transferee’s
own account?


 


6.                                       If
the answer to the foregoing question is “no,” then in each case where the
Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a “qualified institutional buyer”
within the meaning of Rule 144A, and the “qualified institutional buyer”
status of such third party has been established by the Transferee through one
or more of the appropriate methods contemplated by Rule 144A.


 


7.                                       The
Transferee will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice is
given, the Transferee’s purchase of the Transferred Notes will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above,
the Transferee agrees that it will furnish to such parties any updated annual
financial statements that become available on or before the date of such
purchase, promptly after they become available.


 


	
   

  	
   

  	
   

  
	
   

  	
  Print Name of Transferee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
								



 


D-1-5

















 


ANNEX B TO
EXHIBIT D-1


 


QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SECURITIES ACT RULE 144A


 


[for
Transferees that are Registered Investment Companies]


 


The undersigned hereby certifies as follows to [name of Transferor (the
“Transferor”) and Citibank, N.A., as
Note Registrar, with respect to the Notes being transferred (the “Transferred Notes”) as described in
the Transferee Certificate to which this certification relates and to which
this certification is an Annex:


 


1.                                       As
indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Notes (the “Transferee”)
or, if the Transferee is a “qualified institutional buyer” as that term is
defined in Rule 144A (“Rule 144A”)
under the Securities Act of 1933, as amended (the “Securities
Act”), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the “Adviser”).


 


2.                                       The
Transferee is a “qualified institutional buyer” as defined in Rule 144A
because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee
alone owned and/or invested on a discretionary basis, or the Transferee’s
Family of Investment Companies owned, at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the end of the
Transferee’s most recent fiscal year. For purposes of determining the amount of
securities owned by the Transferee or the Transferee’s Family of Investment
Companies, the cost of such securities was used, unless the Transferee or any
member of the Transferee’s Family of Investment Companies, as the case may be,
reports its securities holdings in its financial statements on the basis of
their market value, and no current information with respect to the cost of
those securities has been published, in which case the securities of such
entity were valued at market:


 


o                                                                                    The
Transferee owned and/or invested on a discretionary basis $
                
in securities (other than the excluded securities referred to below) as of the
end of the Transferee’s most recent fiscal year (such amount being calculated
in accordance with Rule 144A).


 


o                                                                                    The
Transferee is part of a Family of Investment Companies that owned in the
aggregate $
                      
in securities (other than the excluded securities referred to below) as of the
end of the Transferee’s most recent fiscal year (such amount being calculated
in accordance with Rule 144A).


 


3.                                       The term “Family of Investment Companies” as
used herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same parent
or because one investment adviser is a majority owned subsidiary of the other).


 


D-1-6

















 


4.                                       The
term “securities” as
used herein does not include (i) securities of issuers that are affiliated
with the Transferee or are part of the Transferee’s Family of Investment
Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan
participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee’s Family of Investment Companies, the securities referred to in
this paragraph were excluded.


 


5.                                       The
Transferee is familiar with Rule 144A and understands that the parties to
which this certification is being made are relying and will continue to rely on
the statements made herein because one or more sales to the Transferee will be
in reliance on Rule 144A.


 


o                                    o                                                                                    Will
the Transferee be purchasing the Transferred Notes


Yes                            No                                                                                only
for the Transferee’s own account?


 


6.                                       If the answer to
the foregoing question is “no,” then in each case where the Transferee is
purchasing for an account other than its own, such account belongs to a third
party that is itself a “qualified institutional buyer” within the meaning of Rule 144A,
and the “qualified institutional buyer” status of such third party has been
established by the Transferee through one or more of the appropriate methods
contemplated by Rule 144A.


 


7.                                       The
undersigned will notify the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice, the
Transferee’s purchase of the Transferred Notes will constitute a reaffirmation
of this certification by the undersigned as of the date of such purchase.


 


	
   

  	
   

  	
   

  
	
   

  	
  Print Name of Transferee or Advisor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  IF AN ADVISER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name of Transferee

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date: 

  	
   

  	
   

  	
   

  
									



 


D-1-7

















 


EXHIBIT D-2


 


FORM OF
TRANSFER CERTIFICATE FOR TRANSFER


 


FROM
RESTRICTED GLOBAL NOTE


 


TO
REGULATION S GLOBAL NOTE


 


DURING THE
RESTRICTED PERIOD


 


[DATE]


 


Citibank, N.A.


111 Wall Street, 15th Floor


New York, New York 10005


Attention:  15th Floor
Window


 


Re:                               Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ] (the “Notes”)


 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the transfer by [        ]
(the “Transferor”) to [       ]
(the “Transferee”) of [beneficial
interests in] Class A-[1][2] Notes evidenced by Restricted Global Notes
(the “Transferred Notes”) having an
initial Note Principal Balance as of [           ],
200[ ] of $[               ]
evidencing a [   ]% Percentage Interest in such Class. The
Transferor has requested a transfer of such Transferred Note for a [beneficial
interest in a] Temporary Regulation S Global Note, evidencing Notes of the same
Class, in a like principal balance to be registered in the name of the
Transferee. The Notes, including the Transferred Notes, were issued pursuant to
an Amended and Restated Master Indenture, to be dated on or about March 17,
2006 (as amended or supplemented thereafter, the “Master
Indenture”), between Spirit
Master Funding, LLC (the “Issuer”)
and Citibank, N.A., as indenture trustee (in such capacity, the “Indenture Trustee”), as
supplemented by the Series 200[ ]-[ ] Supplement (together with the Master
Indenture and any other indenture supplement thereto (each, a “Supplement”), the “Indenture”). All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Indenture.


 


In connection with such request and in respect of such Notes, the
Transferee does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Rule 904 of Regulation S, and
accordingly the Transferee does hereby certify, represent and warrant to you,
as Note Registrar, and for the benefit of the Issuer and the Indenture Trustee
that:


 


1.                                       The
Transferee is not a U.S. person (as defined in Regulation S) or holding the
Notes for the account or benefit of any U.S. person.


 


2.                                       The
offer of the Notes was not made to a person in the United States.


 


D-2-1

















 


[3.                                   At
the time the buy order was originated, the Transferee was outside the United
States.](1)


 


[3.                                   The
transaction was executed in, on or through the facilities of a designated
offshore securities market and the transaction was not prearranged with a buyer
in the United States.]


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Transferee)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 






(1)                                  Insert
one of these two provisions, which come from the definition of “offshore
transaction” in Regulation S.


 


D-2-2

















 


EXHIBIT D-3


 


FORM OF
TRANSFER CERTIFICATE FOR TRANSFER


 


FROM
RESTRICTED GLOBAL NOTE TO REGULATION S


 


GLOBAL
NOTE AFTER THE RESTRICTED PERIOD


 


[DATE]


 


Citibank, N.A.


111 Wall Street, 15th Floor


New York, New York 10005


Attention:  15th Floor
Window


 


Re:                               Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ] (the “Notes”)


 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the transfer by [          ]
(the “Transferor”) to [       ]
(the “Transferee”) of [beneficial
interests in] Class A-[1][2] Notes evidenced by Restricted Global Notes
(the “Transferred Notes”) having an
initial Note Principal Balance as of [         ],
200[ ] of $[                ]
evidencing a [   ]% Percentage Interest in such Class. The
Transferor has requested a transfer of such Transferred Note for a [beneficial
interest in a] Permanent Regulation S Global Note, evidencing Notes of the same
Class, in a like principal balance to be registered in the name of the
Transferee. The Notes, including the Transferred Notes, were issued pursuant to
an Amended and Restated Master Indenture, to be dated on or about March 17,
2006 (as amended or supplemented thereafter, the “Master
Indenture”), between Spirit
Master Funding, LLC (the “Issuer”)
and Citibank, N.A., as indenture trustee (in such capacity, the “Indenture Trustee”), as
supplemented by the Series 200[ ]-[ ] Supplement (together with the Master
Indenture and any other indenture supplement thereto (each, a “Supplement”), the “Indenture”). All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Indenture.


 


In connection with such request and in respect of such Notes, the
transferee does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Rule 904 of Regulation S, and
accordingly the Transferee does hereby certify, represent and warrant to you,
as Note Registrar, and for the benefit of the Issuer, the Indenture Trustee and
the Transferee, that:


 


1.                                       The
offer of the Notes was not made to a person in the United States.


 


D-3-1

















 


[2.                                   At
the time the buy order as originated, the Transferee was outside the United
States.](1).


 


[2.                                   The
transaction was executed in, on or through the facilities of a designated
offshore securities market and the transaction was not prearranged with a buyer
in the United States.]


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (Transferee)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 






(1)                                  Insert
one of these two provisions, which comes from the definition of “offshore
transaction” in Regulation S.


 


D-3-2

















 


EXHIBIT D-4


 


FORM OF
REGULATION S LETTER FOR EXCHANGE OF INTERESTS IN THE TEMPORARY REGULATION S
GLOBAL NOTE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL NOTE


 


[DATE]


 


Citibank, N.A.


111 Wall Street, 15th Floor


New York, New York 10005


Attention:  15th Floor
Window


 


Re:                               Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ] (the “Notes”)


 


Ladies and Gentlemen:


 


This letter is delivered to you in connection with the exchange by [        ]
(the “Transferor”) to [       ]
(the “Transferee”) of $[                 ]
principal amount of beneficial interests in the Temporary Regulation S Global
Note evidencing Class A-[1][2] Notes for a like amount of beneficial
interests in the Permanent Regulation S Global Note evidencing Notes of the
same Class. The Notes, including the Transferred Notes, were issued pursuant to
an Amended and Restated Master Indenture, to be dated on or about March 17,
2006 (as amended or supplemented thereafter, the “Master
Indenture”), between Spirit
Master Funding, LLC (the “Issuer”)
and Citibank, N.A., as indenture trustee (in such capacity, the “Indenture Trustee”), as
supplemented by the Series 200[ ]-[ ] Supplement (together with the Master
Indenture and any other indenture supplement thereto (each, a “Supplement”), the “Indenture”). All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Indenture.


 


In connection with such request, we hereby certify that, based solely
on certifications we have received in writing, by tested telex or by electronic
transmission, from member organizations appearing in our records as persons
entitled to a portion of the principal amount set forth above (our “Member Organizations”)
substantially to the effect that the beneficial interests in the Temporary
Regulation S Global Note are beneficially owned by (a) non-U.S. persons or
(b) U.S. persons who purchased their beneficial interests in transactions
that did not require registration under the United States Securities Act of
1933.


 


We further certify that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.


 


We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would


 


D-4-1

















 


be relevant, we irrevocably authorize you to
produce this certification to any interested party to such proceedings.


 


	
   

  	
  Yours faithfully,

  
	
   

  	
   

  
	
   

  	
  [EUROCLEAR BANK, S.A./N.A., as

  operator of the Euroclear Clearance Systems

  S.C., a Belgian cooperative corporation]

  
	
   

  	
   

  
	
   

  	
  or

  
	
   

  	
   

  
	
   

  	
  [CLEARSTREAM BANKING, S.A.]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
						



 


D-4-2

















 


EXHIBIT E-1


 


FORM OF
CERTIFICATE WITH RESPECT TO INFORMATION

REQUEST BY BENEFICIAL OWNER


 


[Date]


 


Citibank, N.A.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Agency and Trust –
Spirit Master Funding


 


Spirit Master Funding, LLC

14631 N. Scottsdale Road, Suite 200

Scottsdale, Arizona 85255

Attention: Catherine Long, Chief Financial Officer


 


[ADDITIONAL SPIRIT ISSUERS]


 


In accordance with Section 6.03 of the Amended and Restated
Master Indenture, to be dated on March 17, 2006 (as amended or
supplemented thereafter, the “Master Indenture”),
between Spirit Master Funding, LLC (the “Issuer”) and Citibank, N.A.,
as indenture trustee (in such capacity, the “Indenture
Trustee”), as supplemented by the Series 200[ ]-[ ] Supplement
(together with the Master Indenture and any other indenture supplement thereto
(each, a “Supplement”), the “Indenture”), with respect to the
Spirit Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ]
(the “Notes”), the undersigned hereby certifies
and agrees as follows:


 


1.                                       The
undersigned is a beneficial owner of Class A-[1][2] Notes.


 


2.                                       The
undersigned is requesting access to certain non-public information contained on
the Indenture Trustee’s website relating to the Notes or such other information
identified on the schedule attached hereto pursuant to Section 6.03
of the Indenture (in each case, the “Information”)
for use in evaluating its investment in the Class A-[1][2] Notes.


 


3.                                       In
consideration of the Indenture Trustee’s disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential (except
from such outside persons as are assisting it in making the evaluation
described in paragraph 2 and from its accountants, attorneys and any
governmental agency or authority which regulates the undersigned), and such
Information will not, without the prior written consent of the Indenture
Trustee, be 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.


 


E-1-1

















 


4.                                       The
undersigned will not use or disclose the Information in any manner which could
result in a violation of any provision of the Securities Act of 1933, as
amended (the “Securities Act”), or the
Securities Exchange Act of 1934, as amended, or would require registration of
any Note pursuant to Section 5 of the Securities Act.


 


5.                                       The
undersigned shall be fully liable for any breach of this agreement by itself or
any of its Representatives and shall indemnify the Issuer, the Indenture
Trustee and the Collateral for any loss, liability or expense incurred thereby
with respect to any such breach by the undersigned or any of its
Representatives.


 


6.                                       The
undersigned [is]
[is not]
a chain restaurant company.


 


Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Indenture.


 


IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.


 


	
   

  	
   

  	
   

  
	
   

  	
  [BENEFICIAL OWNER
  OF A NOTE]

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


E-1-2

















 


EXHIBIT E-2


 


FORM OF
CERTIFICATE WITH RESPECT TO INFORMATION

REQUEST BY PROSPECTIVE PURCHASER


 


[Date]


 


Citibank, N.A.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Agency and Trust –
Spirit Master Funding


 


Spirit Master Funding, LLC

14631 N. Scottsdale Road, Suite 200

Scottsdale, Arizona 85255

Attention: Catherine Long, Chief Financial Officer


 


[ADDITIONAL SPIRIT ISSUERS]


 


In accordance with Section 6.03 of the Amended and Restated
Master Indenture, to be dated on March 17, 2006 (as amended or
supplemented thereafter, the “Master Indenture”),
between Spirit Master Funding, LLC (the “Issuer”) and Citibank, N.A.,
as indenture trustee (in such capacity, the “Indenture
Trustee”), as supplemented by the Series 200[ ]-[ ]
Supplement (together with the Master Indenture and any other indenture
supplement thereto (each, a “Supplement”),
the “Indenture”), with respect to the
Spirit Master Funding, LLC, Net-Lease Mortgage Notes, Series 200[ ]-[ ]
(the “Notes”), the undersigned hereby
certifies and agrees as follows:


 


1.                                       The
undersigned is contemplating an investment in the Class A-[1][2] Notes.


 


2.                                       The
undersigned is requesting access to certain non-public information contained on
the Indenture Trustee’s website relating to the Notes or such other information
identified on the schedule attached hereto pursuant to Section 6.03
of the Indenture (in each case, the “Information”)
solely for use in evaluating such possible investment.


 


3.                                       In
consideration of the Indenture Trustee’s disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential (except
from such outside persons as are assisting it in making the investment decision
described in paragraphs 1 and 2 and from its accountants, attorneys and any
governmental agency or authority which regulates the undersigned), and such
Information will not, without the prior written consent of the Indenture
Trustee, be 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 will not use or disclose the Information in any manner which could
result in a violation of any provision of the Securities Act of 1933, as


 


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amended (the “Securities
Act”), or the Securities Exchange Act of 1934, as amended, or
would require registration of any Note pursuant to Section 5 of the
Securities Act.


 


5.                                       The
undersigned shall be fully liable for any breach of this agreement by itself or
any of its Representatives and shall indemnify the Issuer, the Transferor, the
Indenture Trustee and the Collateral for any loss, liability or expense
incurred thereby with respect to any such breach by the undersigned or any of
its Representatives.


 


6.                                       The
undersigned [is]
[is not]
a chain restaurant company.


 


Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto in the Indenture.


 


IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.


 


	
   

  	
   

  	
   

  
	
   

  	
  [PROSPECTIVE
  PURCHASER]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


The undersigned is a beneficial owner of Class      
Notes contemplating a transfer of all or a portion of such Notes to the
prospective purchaser named above.


 


	
   

  	
   

  
	
  [PROSPECTIVE
  TRANSFEROR]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
					



 


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