Exhibit 4.1


 


EXECUTION COPY


 


MASTER INDENTURE


 


DATED AS OF JULY 26, 2005


 










 


BETWEEN


 


SPIRIT MASTER FUNDING, LLC,


 


AS ISSUER,


 


AND


 


CITIBANK, N.A.


 


AS INDENTURE TRUSTEE


 


NET-LEASE MORTGAGE NOTES


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
   

  
	
  Section 1.02

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Forms; Denominations

  	
   

  
	
  Section 2.02

  	
  Execution, Authentication,
  Delivery and Dating

  	
   

  
	
  Section 2.03

  	
  Certification of Receipt of
  the Collateral

  	
   

  
	
  Section 2.04

  	
  The Notes Generally; New
  Issuances

  	
   

  
	
  Section 2.05

  	
  Registration
  of Transfer and Exchange of Notes

  	
   

  
	
  Section 2.06

  	
  Book-Entry Notes

  	
   

  
	
  Section 2.07

  	
  Mutilated,
  Destroyed, Lost or Stolen Notes

  	
   

  
	
  Section 2.08

  	
  Noteholder Lists

  	
   

  
	
  Section 2.09

  	
  Persons
  Deemed Owners

  	
   

  
	
  Section 2.10

  	
  Payment Account

  	
   

  
	
  Section 2.11

  	
  Payments on
  the Notes

  	
   

  
	
  Section 2.12

  	
  Final Payment
  Notice

  	
   

  
	
  Section 2.13

  	
  Compliance
  with Withholding Requirements

  	
   

  
	
  Section 2.14

  	
  Cancellation

  	
   

  
	
  Section 2.15

  	
  The
  Insurance Policies

  	
   

  
	
  Section 2.16

  	
  The Hedge
  Agreements

  	
   

  
	
  Section 2.17

  	
  Tax
  Treatment of the Notes and the Issuer

  	
   

  
	
  Section 2.18

  	
  Cashflow
  Coverage Reserve Account

  	
   

  
	
  Section 2.19

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

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  
	
  Section 3.02

  	
  Application
  of Trust Money

  	
   

  



 


 


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  ARTICLE IV

  EVENTS OF DEFAULT; REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Events of Default

  	
   

  
	
  Section 4.02

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
   

  
	
  Section 4.03

  	
  Collection
  of Indebtedness and Suits for Enforcement by Indenture Trustee

  	
   

  
	
  Section 4.04

  	
  Remedies

  	
   

  
	
  Section 4.05

  	
  Application
  of Money Collected

  	
   

  
	
  Section 4.06

  	
  Limitation on
  Suits

  	
   

  
	
  Section 4.07

  	
  Unconditional
  Right of Noteholders to Receive Principal and Interest

  	
   

  
	
  Section 4.08

  	
  Restoration
  of Rights and Remedies

  	
   

  
	
  Section 4.09

  	
  Rights and
  Remedies Cumulative

  	
   

  
	
  Section 4.10

  	
  Delay or
  Omission Not Waiver

  	
   

  
	
  Section 4.11

  	
  Control by
  Requisite Global Majority

  	
   

  
	
  Section 4.12

  	
  Waiver of
  Past Defaults

  	
   

  
	
  Section 4.13

  	
  Undertaking
  for Costs

  	
   

  
	
  Section 4.14

  	
  Waiver of
  Stay or Extension Laws

  	
   

  
	
  Section 4.15

  	
  Sale of
  Collateral

  	
   

  
	
  Section 4.16

  	
  Action on Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  THE INDENTURE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Certain
  Duties and Responsibilities

  	
   

  
	
  Section 5.02

  	
  Notice of
  Defaults

  	
   

  
	
  Section 5.03

  	
  Certain
  Rights of Indenture Trustee

  	
   

  
	
  Section 5.04

  	
  Compensation;
  Reimbursement; Indemnification

  	
   

  
	
  Section 5.05

  	
  Corporate
  Indenture Trustee Required; Eligibility

  	
   

  
	
  Section 5.06

  	
  Authorization
  of Indenture Trustee

  	
   

  
	
  Section 5.07

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  
	
  Section 5.08

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  
	
  Section 5.09

  	
  Acceptance
  of Appointment by Successor

  	
   

  
	
  Section 5.10

  	
  Unclaimed Funds

  	
   

  
	
  Section 5.11

  	
  Illegal Acts

  	
   

  
	
  Section 5.12

  	
  Communications
  by the Indenture Trustee

  	
   

  
	
  Section 5.13

  	
  Separate
  Indenture Trustees and Co-Trustees

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  REPORTS TO NOTEHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Reports to
  Noteholders and Others

  	
   

  
	
  Section 6.02

  	
  Certain
  Communications with the Rating Agencies

  	
   

  
	
  Section 6.03

  	
  Access to
  Certain Information

  	
   

  



 


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  ARTICLE VII

  REDEMPTION; SERIES ENHANCEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Redemption
  of the Notes

  	
   

  
	
  Section 7.02

  	
  Series Enhancement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  SUPPLEMENTAL INDENTURES; AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Supplemental
  Indentures or Amendments Without Consent of Noteholders

  	
   

  
	
  Section 8.02

  	
  Supplemental
  Indentures With Consent

  	
   

  
	
  Section 8.03

  	
  Delivery of
  Supplements and Amendments

  	
   

  
	
  Section 8.04

  	
  Series Supplements

  	
   

  
	
  Section 8.05

  	
  Execution
  of Supplemental Indentures, etc

  	
   

  
	
  Section 8.06

  	
  Amendments
  to any Insurance Policy

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  COVENANTS; WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Maintenance
  of Office or Agency

  	
   

  
	
  Section 9.02

  	
  Existence
  and Good Standing

  	
   

  
	
  Section 9.03

  	
  Payment of
  Taxes and Other Claims

  	
   

  
	
  Section 9.04

  	
  Validity of the Notes; Title to the
  Collateral; Lien

  	
   

  
	
  Section 9.05

  	
  Protection
  of Collateral Pool

  	
   

  
	
  Section 9.06

  	
  Negative
  Covenants

  	
   

  
	
  Section 9.07

  	
  Statement
  as to Compliance

  	
   

  
	
  Section 9.08

  	
  Issuer
  May Consolidate, Etc., Only on Certain Terms

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  COVENANTS REGARDING MORTGAGED PROPERTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Insurance

  	
   

  
	
  Section 10.02

  	
  Mortgage
  Loans, Leases and Rents

  	
   

  
	
  Section 10.03

  	
  Compliance
  With Laws

  	
   

  
	
  Section 10.04

  	
  Estoppel
  Certificates

  	
   

  
	
  Section 10.05

  	
  Other Rights,
  Etc.

  	
   

  
	
  Section 10.06

  	
  Right to
  Release Any Portion of the Collateral Pool

  	
   

  
	
  Section 10.07

  	
  Environmental
  Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  COSTS

  	
   

  
	
  Section 11.01

  	
  Performance
  at the Issuer’s Expense

  	
   

  



 


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  ARTICLE XII

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Execution
  Counterparts

  	
   

  
	
  Section 12.02

  	
  Compliance
  Certificates and Opinions, etc.

  	
   

  
	
  Section 12.03

  	
  Form of
  Documents Delivered to Indenture Trustee

  	
   

  
	
  Section 12.04

  	
  No Oral Change

  	
   

  
	
  Section 12.05

  	
  Acts of
  Noteholders

  	
   

  
	
  Section 12.06

  	
  Computation
  of Percentage of Noteholders

  	
   

  
	
  Section 12.07

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

  	
   

  
	
  Section 12.08

  	
  Notices to
  Noteholders; Notification Requirements and Waiver

  	
   

  
	
  Section 12.09

  	
  Successors
  and Assigns

  	
   

  
	
  Section 12.10

  	
  Interest
  Charges; Waivers

  	
   

  
	
  Section 12.11

  	
  Severability
  Clause

  	
   

  
	
  Section 12.12

  	
  Governing Law

  	
   

  
	
  Section 12.13

  	
  Insurer Default

  	
   

  
	
  Section 12.14

  	
  Effect of
  Headings and Table of Contents

  	
   

  
	
  Section 12.15

  	
  Benefits of
  Indenture

  	
   

  
	
  Section 12.16

  	
  Trust Obligation

  	
   

  
	
  Section 12.17

  	
  Inspection

  	
   

  
	
  Section 12.18

  	
  Method of
  Payment

  	
   

  
	
  Section 12.19

  	
  Limitation
  on Liability of the Issuer

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
  Form of Restricted Global
  Net-Lease Mortgage Note

  	
   

  
	
  Exhibit A-2

  	
  Form of Regulation S Global
  Net-Lease Mortgage Note

  	
   

  
	
  Exhibit A-3

  	
  Form of Definitive Global
  Net-Lease Mortgage Note

  	
   

  
	
  Exhibit B

  	
  Form of Trustee Report Provided
  in the Trustee’s Website

  	
   

  
	
  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

  	
   

  



 


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  Exhibit E-2

  	
  Form of Certificate with
  Respect to Information Request by Prospective Purchase

  	
   

  
	
  Exhibit F

  	
  Representations and Warranties

  	
   

  
	
  Exhibit G

  	
  Form of Purchase and Sale
  Agreement

  	
   

  
	
  Exhibit H

  	
  Form of Loan Sale Agreement

  	
   

  



 


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MASTER INDENTURE, dated
as of July 26, 2005 (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
issuer (the “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 Issuer has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its 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
Issuer 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 Issuer will incur obligations under the terms of such agreements.


 


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


 


GRANTING CLAUSE


 


The Issuer hereby Grants to the Indenture Trustee at
the Initial Closing Date and on each Series Closing Date, for the benefit
of the Indenture Trustee, the Noteholders and the Insurers, all of the Issuer’s
right, title and interest in, to and under the following (together with any assets
of any Co-Issuer pledged pursuant to this Indenture, referred to herein individually,
as the “Collateral” and,
collectively, the “Collateral Pool”):
 (i) the 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) the Equipment Loans, (iv) the Mortgage Loans (including
the related Mortgage Notes) and all payments required thereunder on and after
the applicable Series Closing Date or Transfer Date, (v) all of the
Issuer’s right, title and interest in all fixtures and reserves and escrows, if
any, related to the Mortgaged Properties, (vi) any guarantees of and
security for the Tenants’ obligations under the Leases, including any security
deposits thereunder, (vii) all of the Issuer’s rights under the
Performance Undertaking and the Environmental Indemnity Agreement, (viii) all
of the 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 the 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) included
in the Collateral Pool.  As of the
Initial Cut-off Date, the Aggregate Collateral Value was approximately
$630,421,106.


 


“Aggregate
Note Principal Balance”: 
For any date of determination and any Series, the sum of the Class Principal
Balances of each of the 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 the Issuer, any person who is
authorized to act for the Issuer and who is identified on the list delivered by
the 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.


 


3





















 


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


 


“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
in any other city in which is located the primary servicing office of the
Property Manager, the Back-Up Manager, the Special Servicer or the Indenture
Trustee.


 


“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 Theatres, 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 the applicable 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”, reduced by any payments of principal
actually made on such Class of Notes on all previous Payment Dates.


 


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


 


“Co-Issuer”:  Any special purpose Affiliate of the Issuer
that issues any Series of Notes and pledges its assets to secure the
Notes.


 


4





















 


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


 


“Collateral Agency Agreement”:  The Collateral Agency Agreement, dated as of April 27,
2005, between the Collateral Agent and Spirit Finance, as amended.


 


“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 Agent Fee”:  An amount equal to the sum of (a) $5,000
per annum and (b) any additional fees for the performance of specified
services, if any, required of the Collateral Agent under 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”: 
The Cashflow Coverage Ratio for the Determination Date for the
Collection Period most recently ended.


 


“Custodian”:  Midland Loan Services, Inc., a Delaware
corporation, or a custodian on its behalf, or its successor in interest.


 


5





















 


“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).


 


“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 “A” or better by
each 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 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, or (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


 


6





















 


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.


 


“Environmental Indemnity Agreement”:  The Environmental Indemnity Agreement dated
as of July 26, 2005, executed by the 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.


 


“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 Issuer, that consist of, among other things: (i) amounts incurred
in connection with the transfer of the Loan Files, Lease Files and other
administrative expenses related to the sale or transfer of Mortgage Loans and
Mortgaged Properties by the Issuer; (ii) payments to the Property Manager,
the Special Servicer, any applicable Hedge Counterparty, the Issuer, the
Indenture Trustee, the


 


7





















 


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 LLC Agreement or any other agreement related thereto; (iii) payments
for the advice of counsel and the cost of 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 the Environmental Indemnity
Agreement and the 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 thereof.


 


“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.


 


8





















 


“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.


 


“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, 15th Floor Window,
New York, New York 10005 and (ii) for all other purposes, 388 Greenwich
Street, 14th Floor, New York, New York 10013, 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 Issuer 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 Issuer or any Affiliate thereof, and (iii) is
not connected with the Indenture Trustee, the Issuer 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 Issuer
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, the
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) hereof, if any, as further provided in the
applicable Series Supplement.


 


9





















 


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


 


“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.


 


“Interest Rate”:  As defined in the Property Management
Agreement.


 


“Interested Person”:  The
Issuer, the Issuer Member, the Property Manager, the Special Servicer, the
Insurers, 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 Issuer to purchase such Mortgaged Property from
the related Originator or third party, as applicable.


 


“Issuer”:  Spirit Master
Funding, LLC, a Delaware limited liability company, or its successor in
interest.


 


“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 Initial Closing Date and each anniversary thereof) per year
and 1/12 of such amount per month.


 


“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 Issuer or any Co-Issuer as owner
of the Mortgaged Properties, or the Issuer’s or any Co-Issuer’s proportionate
share of premiums with respect to general liability insurance policies
maintained by Affiliates of the Issuer or any Co-Issuer, as applicable, (ii) casualty
insurance policies maintained by the Issuer or any Co-Issuer, or its
proportionate share of premiums with respect to casualty insurance policies
maintained by Affiliates of the Issuer or any Co-Issuer, as applicable, to
insure casualties not otherwise insured by a Tenant due to a default by such
Tenant under the insurance covenants of its Lease or because a 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 the Issuer or
any Co-Issuer as lessor to a Tenant.


 


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


 


10





















 


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


 


“Issuer’s Office”:  The principal office of the Issuer, which
office at the Initial Closing Date is located at Spirit Master Funding, LLC,
14631 N. Scottsdale Road, Suite 200, Scottsdale, Arizona 85254, facsimile
number: 480-606-0826, Attention: Catherine Long, Chief Financial Officer.


 


“Lease”:  Each lease listed on the Mortgage Loan Schedule and
Mortgaged Property Schedule, as applicable, and from time to time included in
the Collateral Pool.


 


“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 Issuer 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, the Letter of Representations, dated the applicable Series Closing
Date, among the Depository, the Indenture Trustee, the Issuer and any
Co-Issuer.


 


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


 


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


 


“LLC Agreement”:  The Issuer’s amended and restated limited
liability company agreement dated as of May 20, 2005, as the same may be
amended from time to time in accordance with the terms thereto.


 


“LLC Interests”:  The limited liability company interests
issued pursuant to the LLC 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.


 


“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.


 


11





















 


“Make Whole Payment”:  With respect to any Class of any Series,
as defined in the applicable Series Supplement.


 


“Maximum Property Concentration”:  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 Issuer or Borrower, as applicable, pursuant to which the 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 Issuer’s or any Co-Issuer’s 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 Principal Balance of such Class.  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, Depository Participant or an
indirect participating brokerage firm for which a Depository Participant acts
as agent.


 


12





















 


“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 on all previous
Payment Dates.


 


“Note Rate”:  With respect to any Class of Notes of
any Series, 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
hereof, except that solely for the purpose of giving any consent or exercising
any voting rights pursuant to this Indenture, any Note registered in the name
of any Interested Person shall be deemed not to be Outstanding or counted in
any way (unless any such Person or Persons owns all the Notes of the related
Class).  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 the 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 Issuer, the Issuer Member 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


 


(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 Issuer;


 


13





















 


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) hereof.


 


“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”:  The Performance Undertaking dated as of July 26,
2005, between Spirit Finance and the Issuer and executed by Spirit Finance in
favor of the 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, (i) liens
for real estate taxes and special assessments not yet due and payable or due
but not yet delinquent, (ii) covenants, conditions and 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 related Mortgage, the current
use or operation of the Mortgaged Property


 


14





















 


or the current ability of the
Mortgaged Property to generate net operating income sufficient to service the related
Mortgage Loan.


 


“Person”:  Any individual, corporation, partnership,
limited liability company, joint venture, estate, trust, unincorporated
association, 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
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 Property Management and Servicing Agreement, dated as of July 26, 2005, among the Issuer,
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.


 


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


 


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


 


15





















 


“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 Issuer or any Co-Issuer 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 proposed action or event will not result in the downgrade,
qualification or withdrawal of its then current ratings of 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”:  With
respect to any Series, as defined in the applicable Series Supplement.


 


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


 


“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


 


16





















 


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 the Issuer certified by an Authorized
Officer of the Issuer to have been duly adopted by the Issuer and to be in full
force and effect on the date of such certification.


 


“Responsible Officer”:  When used with respect to the Issuer Member
and the Indenture Trustee, any officer of the 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, 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, as defined in the applicable Series Supplement.


 


“SEC”:  The Securities and Exchange Commission.


 


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


 


“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.


 


17





















 


“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 Issuer 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
Issuer and/or the applicable Co-Issuer 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 Issuer 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”:  Spirit
Finance or its successors and assigns.


 


“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.


 


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


 


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“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 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.


 


“Tax Opinion”:  An opinion of Independent counsel that a
contemplated action will not cause a U.S. federal income tax to be imposed on
the 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.


 


“Third Party Purchase Price”:  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 accrued but unpaid Collateral Agent Fee, (vi) the
Back-Up Fee, (vii) any net payment due from the Issuer under any
applicable Hedge Agreements for the related Payment Date (other than default
termination payments) and (viii) the Indenture Trustee Fee, each as
accrued during the Collection Period ending on such Determination Date.


 


“Transaction Documents”:  This Indenture, the Property Management
Agreement, the Insurance Agreements, the Hedge Agreements, the Purchase and
Sale Agreements, the LLC Agreement, each Account Control Agreement, the
Environmental


 


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Indemnity Agreement, the
Performance Undertaking, the organizational documents of the Issuer 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
Issuer) 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 such 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.


 


“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;


 


(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 term “generally accepted
accounting principles” 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”;


 


20





















 


(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)         The Notes shall be designated as the “Spirit
Master Funding, LLC, 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 consistently 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.


 


(b)           The
Notes of each Class, 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 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


 


21





















 


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 hereof), 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 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 shall be executed by manual
or facsimile signature on behalf of the Issuer by any Authorized Officer of the
Issuer.  Notes bearing the manual or
facsimile signatures of individuals who were at any time the Authorized Officers
of the Issuer 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 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
date 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


 


22





















 


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 by 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 Issuer.  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 Issuer.  Upon receiving such notice
of resignation or upon such a termination, the Indenture Trustee may promptly
appoint a successor Authenticating Agent, give written notice of such
appointment to the Issuer and give notice of such appointment 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 for original issue in an aggregate
amount equal to the initial Note Principal Balance for each such 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.


 


(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 or to the Custodian 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.


 


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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 Issuer and any Co-Issuer may, from time to time, direct the Indenture
Trustee, on behalf of the Issuer and such Co-Issuer, 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 parties hereto and any applicable
Co-Issuer 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 Issuer and any applicable Co-Issuer 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 date hereof) 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 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;


 


24























 


(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 Issuer in a bankruptcy proceeding that involves
the applicable Originators, the 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 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 of an applicable initial
custodial certification, as provided for in the Custodial Agreement;


 


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


 


(iii)          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;


 


(iv)          satisfaction of the Rating Condition;


 


(v)           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
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
applicable Series Closing Date, (y) will not cause the Issuer 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 the Issuer;


 


(vi)          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 Issuer in a bankruptcy proceeding that
involves the applicable Originators, the Issuer 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 Co-Issuer) to the Issuer and the
applicable Co-Issuer on the related Series 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;


 


25





















 


(vii)         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;


 


(viii)        the applicable Co-Issuer has delivered an
Opinion of Counsel to the Indenture Trustee, dated the applicable Series
Closing Date, to the effect that such Co-Issuer is a special purpose,
bankruptcy-remote entity;


 


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


 


(x)            such issuance shall not result in the
occurrence of an Event of Default and the Issuer has delivered to the Indenture
Trustee and each Insurer an Officer’s Certificate, dated the applicable Series
Closing Date (upon which the Indenture Trustee shall be entitled to conclusively
rely), to the effect that (1) based on the facts known to the Person executing
such Officer’s Certificate, the Issuer reasonably believes that no uncured
Event of Default is continuing at the time of such issuance and that such
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 (i) solely for purposes of the transfer, surrender or
exchange of Notes, 111 Wall Street, 15th Floor Window, New York, New York 10005
and (ii) for all other purposes, 388 Greenwich Street, 14th Floor, New York,
New York 10013, or at such other address as the Indenture Trustee or Note
Registrar may designate from time to time. 
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 Issuer, 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 Issuer, 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 promptly furnish such
Noteholder with a list of the other Noteholders of record identified in the
Note Register at the time of the request.


 


26





















 


(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.


 


Neither
the Issuer nor 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 transactions”
(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 Note or Ownership Interest 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 hereof) 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 Regulation S), the
Indenture Trustee shall cancel the Restricted Global Note so transferred (or
reduce the principal amount of the Notes evidenced thereby), the Issuer shall,
concurrently with such cancellation (or reduction), issue and the Indenture
Trustee


 


27





















 


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 Note or an Ownership
Interest therein 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 hereof) 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 Issuer
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 its 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 interest 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 hereof) 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 Issuer 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.


 


(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


 


28





















 


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) an executed
transferor certificate from the transferor substantially in the form attached
as Exhibit C-1 (subject to Section 12.03 hereof), and (B) an
executed transferee certificate from the prospective transferee substantially
in the form attached as Exhibit C-2 (subject to Section 12.03
hereof).  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 Issuer
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 Issuer 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.


 


(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.


 


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(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 Issuer 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 (A) such transferee is not, and is not purchasing such Note on behalf
of, as a fiduciary of, as trustee of, or with assets of, a Plan or (B)(i) such
Note is rated investment grade or better as of the date of the purchase, (ii)
it believes that such Note is properly treated as indebtedness without
substantial equity features for purposes of ERISA and the regulations
thereunder and agrees to so treat such Note and (iii) its acquisition and
holding of such Note 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). 
Alternatively, regardless of the rating of the Note, a prospective
transferee of the Note or any interest therein who is a trustee of such Plan or
is acting on behalf of such Plan, or using Plan Assets of such Plan to effect
such transfer, may provide the Note Registrar an opinion of counsel
satisfactory to the Note Registrar, which opinion will not be at the expense of
the Issuer, the Property Manager, the Support Provider, the Indenture Trustee,
the Collateral Agent or the Note Registrar, that the purchase, holding and transfer
of such Note or interests therein are permissible under applicable law, will
not constitute or result in any non-exempt prohibited transaction under ERISA
or Section 4975 of the Code (or other materially similar applicable law) and
will not subject the Issuer, the Property Manager, the Support Provider, the
Indenture Trustee or  the Collateral
Agent to any obligation in addition to those undertaken in the Indenture.


 


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


 


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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 Issuer, the Property
Manager and Special Servicer, and, if 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 of 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 Issuer 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 Issuer, 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 Issuer advises 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 Issuer is 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 Issuer 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 Issuer, 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


 


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entitled directly to receive,
payments on, to exercise voting and consent rights with respect to, and to
transfer and exchange such Definitive Notes.


 


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


 


Section 2.07           Mutilated, Destroyed, Lost or Stolen
Notes.


 


If
any mutilated Note is surrendered to the Note Registrar, the Issuer 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 Issuer, 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 Issuer or the Note Registrar that such Note has been acquired by
a bona fide purchaser, the Issuer 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 Issuer, 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 Issuer, 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


 


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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 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
Issuer, 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 Issuer,
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 date hereof, the
Indenture Trustee shall establish and maintain one or more segregated trust
accounts (collectively, the “Payment
Account”) at Citibank, N.A. (or 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 Issuer as their interests may appear. 
On each Remittance Date, the Indenture Trustee shall deposit or cause to
be deposited in the Payment Account, pursuant to the written direction of the
Property Manager to the extent applicable, 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
Issuer 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
Issuer as provided in Section 2.11 hereof, pursuant to the written
direction of the Property Manager to the extent applicable.


 


(d)        Upon the satisfaction and discharge of
this Indenture pursuant to Section 3.01 hereof, the Indenture Trustee
shall pay to the Issuer and any applicable Co-Issuer, as their interests may
appear, all amounts, if any, held by it remaining as part of the Collateral
Pool, pursuant to the written direction of the Property Manager to the extent
applicable.


 


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Section 2.11           Payments on the Notes.


 


(a)         Subject to Section 2.11(b), the
Issuer agrees to pay


 


(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) of this
Indenture, 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 Issuer 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 the
Person that is the 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 the applicable Payment Date other than
the Final Payment Date, subject to applicable laws and regulations, by wire
transfer to such account as such Noteholder shall designate by written
instruction received by the Indenture Trustee not later than the Record Date
related to the applicable Payment Date or otherwise by check mailed on or
before the 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, pursuant to the written direction of the Property Manager to
the extent applicable, 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


 


34





















 


Indenture or applicable
law.  The Issuer 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 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 Issuer 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, pursuant to the written direction of the Property
Manager to the extent applicable, first to pay the following expenses of the
Issuer 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 Collateral
Agent, the earned and unpaid Collateral Agent Fee, (III) to the Property
Manager, the earned and unpaid Property Management Fee, (IV) to the extent not
already paid pursuant to clause (1) above, to the Special Servicer, any
earned and unpaid


 


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Special Servicing Fees,
(V) to the Back-Up Manager, the Back-Up Fee, (VI) 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),
(VII) to the Back-Up Manager and the Property Manager, as applicable,
reimbursement for Nonrecoverable Property Protection Advances (plus interest
thereon) and (VIII) (a) first, to the Indenture Trustee and (b) second,
to the relevant party, the amount of Extraordinary Expenses (other than any
amounts owed by the Issuer under the Environmental Indemnity Agreement) not
already reimbursed in sub-clauses (I) through (VII) (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, such limit will not apply and indemnities due to the Issuer or any
Control Person, member, manager, officer, employee or agent of the Issuer,
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 the 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 each 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 for such Payment Date from any 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 Notes; and


 


b.             pro rata, to each Series in respect of principal,
based on the related 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;


 


36





















 


(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)           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 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;


 


(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 the Insurers;


 


(7)           to any Hedge Counterparty, any and all
amounts (including any default termination payments) 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 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 Collateral Pool Expense not paid from
the Available Amount in accordance with the foregoing allocations, and second,
amounts owed by the Issuer under the Environmental Indemnity Agreement, and third,
to the Issuer or, at the option of the Issuer, to the Release Account.  The Requisite Global Majority may waive the
occurrence of an Early Amortization Event (other than with respect to the
occurrence of an Early Amortization Event triggered by a draw made under an
Insurance Policy).  In the event an Early
Amortization Event is triggered by a draw made under an Insurance Policy, only
the related Insurer shall have the right to waive such Early Amortization
Event.


 


The
Notes are nonrecourse obligations solely of the Issuer and any applicable
Co-Issuer 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 Issuer directly
and may only look to the Collateral Pool and the Insurance Policies, as
applicable, to satisfy the Issuer’s obligations hereunder.  Each Noteholder and Note Owner will be deemed
to have agreed, by its


 


37





















 


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 the Issuer and any
applicable Co-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 Issuer 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 the 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 the 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 Rating Agency, any applicable
Insurer and the 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 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.  The consent of Noteholders shall not be
required for any such withholding.


 


Section 2.14           Cancellation.


 


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


 


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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 3:00 p.m. New York City
time on the fourth Business Day prior to any Payment Date, the Indenture
Trustee has received the Determination Date Report, or such information as is
necessary for the Indenture Trustee to determine whether a claim will be
required (and if so, the amount of such claim) under any Insurance Policy, 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) hereof 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 the 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 a segregated trust account that
shall be designated as an “Insurance
Policy Proceeds Account”, at Citibank, N.A., in its name, as
Indenture Trustee (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), 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 Issuer 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,


 


39





















 


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 hereof.  Any funds held in an
Insurance Policy Proceeds Account after the distributions made pursuant to Section
2.11 hereof 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 Issuer may enter into one or more Hedge
Agreements with respect to any Class of any Series of Notes.


 


(b)           The Indenture Trustee shall, on behalf of the
Issuer, 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
Issuer; 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 Issuer
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 Issuer of penalties or
fees other than termination-related expenses) by the Issuer subject to the
satisfaction of the Rating Condition. The Indenture Trustee shall, prior to
each applicable Series Closing Date if required by the applicable Series
Supplement, establish a segregated trust account that shall be designated as a “Hedge Counterparty Account”, at
Citibank, N.A. (or such other financial institution as provided in the
applicable Series Supplement and as necessary to ensure that the Hedge
Counterparty Account is at all times an Eligible Account or a sub-account of an
Eligible 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 Issuer 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


 


40





















 


otherwise to the credit of, a
Hedge Counterparty Account shall be for application to obligations of the
applicable Hedge Counterparty to the Issuer 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 Issuer 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 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 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 Issuer 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 Issuer 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 Issuer will use its 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 Hedge Agreement must be a non-recourse
obligation of the Issuer 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.


 


Section 2.17           Tax Treatment of the Notes and the Issuer.


 


The
Issuer has 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 Issuer (unless otherwise provided in the
applicable Series Supplement).  The
Issuer, 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 Issuer (unless
otherwise provided in the applicable Series Supplement).


 


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Section 2.18           Cashflow Coverage Reserve Account.


 


(a)           On or prior to the date hereof, the Indenture
Trustee shall establish and maintain one or more segregated trust accounts
(collectively, the “Cashflow Coverage Reserve
Account”) at Citibank, N.A. (or 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) 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 Issuer 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 Issuer as herein provided.


 


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


 


(d)           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). 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. On the Legal Final Payment Date of any Class of Notes, the Indenture
Trustee shall transfer all amounts on deposit in the Cashflow 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, the Issuer and any applicable Co-Issuer shall make the representations
and warranties set forth in Exhibit F hereto, as of the applicable
Series Closing Date or Transfer Date, with respect to the Mortgage Loans,
Mortgaged Properties and Leases added to the Collateral Pool by the Issuer or
such Co-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


 


42





















 


Mortgage Loan, Mortgaged
Property or Lease acquired by the Issuer or such Co-Issuer from an Affiliate
pursuant to a Purchase and Sale Agreement in the form annexed hereto as Exhibit
G or H, as applicable, and 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
Issuer or the applicable Co-Issuer 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, stand-alone 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 Issuer 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 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 Issuer has paid or caused to be paid
all other sums payable or reasonably expected to become payable by the Issuer
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
Issuer, Spirit Finance and


 


43





















 


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 Issuer has delivered to the Indenture
Trustee an Officer’s Certificate (upon which the Indenture Trustee shall be
entitled to conclusively 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 Issuer has 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 Issuer 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.


 


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;


 


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


 


(c)         the failure of the Issuer or any
Co-Issuer to retire any 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 Issuer or any
Co-Issuer made in this Indenture or any 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
Issuer by the Indenture Trustee, or to the Issuer 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
or any Mortgaged Property owned by the Issuer, 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 such Mortgage or the lien on any other part of the Collateral
Pool 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 or any Mortgaged Property owned by the
Issuer, 30 days after receipt by the Issuer of notice thereof;


 


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


 


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


 


(h)        the Issuer or any Co-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, the Issuer or of, or relating to, all or substantially all of the assets of
the Issuer or any Co-Issuer; or


 


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


 


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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 direction of the Requisite Global Majority (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.  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 such 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:


 


(a)         the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay:


 


(i)            all payments of principal of and interest
on the Notes 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


 


(ii)           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


 


(b)        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.


 


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 Issuer or any Co-Issuer fails 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, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Issuer, any


 


46





















 


Co-Issuer 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 Issuer 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 the Issuer or any Co-Issuer or
its property or such Person or (z) there shall be pending a comparable judicial
proceeding brought by creditors of the Issuer or any Co-Issuer or affecting the
property of the Issuer or any Co-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 Trustee) 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


 


47





















 


Noteholders allowed in
any judicial proceedings relative to the Issuer, any Co-Issuer, their creditors
and their 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).


 


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 hereof 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, 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;


 


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(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 Issuer 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 Issuer 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.


 


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 Issuer, 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 hereof 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;


 


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(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 or Noteholders have
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.


 


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 Issuer 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
Issuer, the Indenture Trustee and the Noteholders shall be restored severally
and respectively to their former positions hereunder, and thereafter all rights


 


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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, 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, 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 will require the consent of the applicable Insurer;


 


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(2)           in the distribution of principal or
interest on any Note, which waiver shall require the consent by 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, which waiver shall
require the consent by each such Holder;


 


(4)           depriving the Indenture Trustee of a lien
on any part the Collateral,  which 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, which 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 acceleration or 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 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 the 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.


 


The
Issuer covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim 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; the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of such law and


 


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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 4.04
hereof 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 of
this Indenture.


 


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


 


For
purposes of determining the sufficiency of the proceeds of a liquidation under
this Section 4.15(b), the Indenture Trustee shall be permitted to, at
other than its own expense, obtain and shall be fully protected in relying
upon, the opinion of an independent investment bank.


 


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


 


The
Indenture Trustee may utilize an agent, at other than its own expense, for
purposes of conducting any sale of collateral.


 


(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:


 


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(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 Issuer to transfer
and convey the 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)           such sale complies with any restrictions
under the Property Management Agreement and any Series Supplement.


 


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 the Issuer, any Co-Issuer or by the levy of
any execution under such judgment upon any portion of the Collateral Pool.


 


ARTICLE V


 


THE
INDENTURE TRUSTEE


 


Section 5.01           Certain Duties and Responsibilities.


 


The
Issuer hereby irrevocably constitutes and appoints the Indenture Trustee and
any Responsible Officer thereof, 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 Issuer and in the name of the Issuer 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.


 


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(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 Issuer shall prepare and
file or cause to be filed, at the Issuer’s expense, a UCC Financing Statement
and any continuation statements, describing the Issuer 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 to
make, at the expense of the Issuer, all required filings and refilings of which
the Indenture Trustee becomes aware, 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 Issuer.


 


(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; provided, however, that
the Indenture Trustee shall not be responsible for the accuracy or content of
any resolution, certificate, statement, opinion, report, document, order or
other instrument furnished hereunder.  If
any such instrument is found on its 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 (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 personally 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


 


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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
Issuer 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 for its obligation to apply the
Available Amount in accordance with Section 2.11(b) and to make any
withdrawals or payments required to be made by the Indenture Trustee pursuant
to the Property Management  Agreement,
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).


 


(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.


 


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(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 of which a Responsible Officer of the
Indenture Trustee shall have actual notice, the Indenture Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture, the Indenture Trustee shall not be liable except for the performance
of such duties and obligations 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; 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 hereof, in
case an Event of Default actually 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 the Requisite Global Majority, any
Controlling Party or Noteholders of more than 50% (unless a lower or higher
percentage 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 to exercise any trust or power
conferred upon the Indenture Trustee, under this Indenture with respect to the
Notes; and


 


57





















 


(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 Issuer 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 no default or Event of Default
exists.


 


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 Issuer, 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;
provided, that, except in the case of a default in the payment of the
principal of or interest on any of the Notes, the Indenture Trustee shall be
protected in withholding such notice to the Noteholders if a Responsible
Officer of the Indenture Trustee reasonably and in good faith determines that
the withholding of such notice is in the best interest of the Noteholders.  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;


 


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


 


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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 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 to
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


 


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Majority will be deemed to be
satisfied by a letter agreement with respect to such costs from the Requisite
Global Majority); nothing contained herein shall, however, relieve the
Indenture Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured) of which a Responsible Officer of the Indenture
Trustee shall have actual knowledge or written notice, 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
Issuer hereby agrees:


 


(1)           to pay or cause to be paid to the
Indenture Trustee, in accordance with the terms of this Indenture, monthly, the
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), 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 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


 


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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 Issuer
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
Issuer 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 Issuer, 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.


 


Anything
in this Indenture to the contrary notwithstanding, in no event shall the
Indenture Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but no limited to lost profits), even
if the Indenture Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.


 


The
Indenture Trustee agrees to fully perform its duties under this Indenture
notwithstanding any failure on the part of the Issuer 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 the Issuer’s failure to pay any
sums due the Indenture Trustee pursuant to this Section 5.04.


 


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


 


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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
Issuer hereby agrees 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
$50,000,000, and subject to supervision or examination by Federal or State
authority, 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 the Issuer or any Co-Issuer or an
Affiliate of any Person involved in the organization or operation of the Issuer
or any Co-Issuer or be directly or indirectly controlled by the Issuer or any
Co-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.


 


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


 


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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 Issuer 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 Issuer 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 any such case, (i) the Issuer, 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 Issuer,
with the consent of the Requisite Global Majority, shall promptly appoint a
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 Issuer 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 Issuer
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.


 


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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 Issuer 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
Issuer 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 Issuer 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, shall take such action as may be
requested by the Issuer 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 Issuer 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.


 


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 Issuer or
the applicable Co-Issuer, as their interest may appear, to be held in trust by
the Issuer or any such Co-Issuer for the benefit of the applicable Noteholder
until distributed in accordance with


 


64





















 


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 Issuer or any such Co-Issuer 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 Issuer upon its written directions
to be held in trust for the benefit of the applicable Noteholder until
distributed in accordance with applicable law. 
Any successor to the Issuer through merger, consolidation or otherwise
or any recipient of substantially all the assets of the Issuer in a liquidation
of the Issuer shall remain liable for the amount of any unclaimed balance paid
to the 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 Issuer, within one (1) Business Day
after the Maturity thereof, a written demand for payment thereon.


 


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 Issuer to do so, the Issuer 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.


 


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(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
accept the resignation of or remove any such separate trustee or co-trustee,
and, upon the request of the Indenture Trustee, the Issuer shall join with the
Indenture Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to 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 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. 
The Indenture Trustee shall not be responsible for any action or
inaction of any such separate trustee or co-trustee.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.


 


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(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.


 


(g)        No trustee hereunder shall be held personally liable
because of any act or omission of any other trustee hereunder and such
appointment shall not, and shall not be deemed to, constitute any such separate
trustee or co-trustee as agent of the Indenture Trustee.


 


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 Issuer, the Insurers, the
Initial Purchasers, the Rating Agencies, each Noteholder and any other Person
upon the direction of the 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
Issuer, designees of the Issuer, 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.


 


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 but 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).


 


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(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 Issuer 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 Issuer 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
Issuer, 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.


 


(b)        The Indenture Trustee shall maintain at
its office primarily responsible for administration of the Collateral Pool and
shall deliver to the Issuer, 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
(in which case, at the expense of the Issuer), 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
Issuer or by any Person designated by the Issuer; (ii) this Indenture, the LLC
Agreement, the Property Management Agreement, any  Purchase and Sale Agreements and any
amendments hereto or thereto; (iii) all reports


 


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prepared by, and
all reports delivered to, the Indenture Trustee, the Insurers, 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 Issuer 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 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.


 


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(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.


 


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


 


(b)           The Notes shall not be redeemed in an
optional redemption, unless the Issuer sends written notice to the Indenture
Trustee and each Insurer stating that it will redeem the Notes, in whole or in
part as set forth in such notice on a Payment Date that is not less than 32
days from the date of such notice. The Issuer may rescind such notice of an
optional redemption, by written notice to the Indenture Trustee and each
Insurer not less than 7 days before the applicable date of such optional
redemption.


 


(c)           The Indenture Trustee shall apply the proceeds
received in connection with any optional redemption, pro rata, based on the principal balance of the Notes to be
redeemed, to the Holders of the related Class or Classes of Notes.


 


The
Issuer or Co-Issuer, as applicable, shall determine the applicable date of
redemption and the redemption record date and give notice thereof to the
Indenture Trustee pursuant to Section 7.01(d).


 


(d)           In the event of any redemption, the Issuer or
the Co-Issuer, as applicable, shall, at least 30 days prior to the applicable
date of redemption (unless the Indenture Trustee shall agree to a shorter
notice period), notify the applicable Hedge Counterparty, the applicable
Insurer and the Indenture Trustee of such applicable date of redemption, the
redemption record date and the redemption price of the Notes of each
Class.  In addition, the Issuer or the
Co-Issuer, as applicable, shall promptly notify the Rating Agencies after any
redemption.


 


(e)           Notice of a redemption
shall be given by first-class mail, postage prepaid, mailed not later than 30
days prior to the applicable date of redemption, to each applicable Noteholder
at such Noteholder’s address in the Note Register.


 


All
such notices shall state:


 


(i)            the applicable date of redemption;


 


(ii)           the redemption price for each Class;


 


(iii)          if applicable, that final repayment of
all the Notes of each such Class is being made and that interest on such Notes
shall cease to accrue on the date specified in the notice; and


 


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(iv)          if applicable, the place or places where
any such Notes to be redeemed are to be surrendered for payment of the
redemption price, which shall be the office or agency of the Indenture Trustee.


 


In
the event such redemption is withdrawn, the Indenture Trustee shall give notice
of such withdrawal by overnight courier guaranteeing next day delivery, sent
not later than the third Business Day prior to the scheduled date of
redemption, to each Noteholder to be repaid or redeemed at such Noteholder’s
address in the Note Register, the applicable Hedge Counterparty and each
Insurer.


 


Notice
of redemption shall be given by the Issuer or the Co-Issuer, as applicable, or,
at the Issuer’s or such Co-Issuer’s request, by the Indenture Trustee in the
name and at the expense of the Issuer or such Co-Issuer. Failure to give such
notice, or any defect therein, to the Holder of any Note selected for
redemption shall not impair or affect the validity of the redemption of any
other Notes.


 


(f)            Notice of redemption having been given as
required pursuant to this Section 7.01, unless such notice has been
withdrawn, the Notes subject to redemption shall, on the date of redemption,
become due and payable at the redemption price therein specified, and from and
after the date of redemption (unless the Issuer or the Co-Issuer, as
applicable, shall default in the payment of the redemption price) such Notes
shall cease to bear interest. Upon final payment on a Note to be repaid or
redeemed in full, the Noteholder shall present and surrender such Note at the
place specified in the notice of repayment or redemption on or prior to such
date of redemption; provided, however, that if there is delivered
to the Issuer or the Co-Issuer, as applicable, such security or indemnity as
may be required by them to save each of them harmless and an undertaking
thereafter to surrender such Note, then, in the absence of notice to the Issuer
or the Co-Issuer, as applicable, such final payment shall be made without
presentation or surrender.


 


If
any Note to be called for redemption shall not be paid upon surrender thereof
for redemption, the principal thereof shall, until paid,
bear interest from the date of redemption at the applicable Interest Rate for
each successive Accrual Period the Note remains outstanding.


 


Section 7.02           Series Enhancement.


 


To
manage any other risks between the Collateral Pool and the Notes of any Series,
the Issuer and any Co-Issuer, on or before a Series Closing Date, may enter
into one or more types of Series Enhancement with respect to a 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.


 


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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, the
Performance Undertaking or any other Transaction Document, as applicable, for
any of the following purposes:


 


(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, the 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, the 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 the Issuer,
any Co-Issuer or any other party for the benefit of the Noteholders, or to
surrender any right or power conferred upon the Issuer under this Indenture,
the Property Management Agreement, any Purchase and Sale Agreements, the
Environmental Indemnity Agreement or the 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


 


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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 and
an Opinion of Counsel 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 the Issuer.


 


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
Issuer 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 respective parties to
the Transaction Documents may enter into one or more indentures supplemental
hereto, or one or more amendments hereto or to the Notes, the Property
Management Agreement, the 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 and
an Opinion of Counsel 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 the 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;


 


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(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 Agreements;


 


(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 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 Issuer 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
Agreements 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 of this
Indenture; or


 


(10)         release from the lien of any Mortgage or
this Indenture (except as specifically permitted under this Indenture, the
Property Management Agreement, any Purchase and Sale Agreements 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 agreements 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 Issuer and the Indenture Trustee (and any other
Party, if required) of any supplemental indenture or amendment pursuant to the
provisions


 


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hereof,
the Indenture Trustee, at the expense of the Issuer 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 Issuer 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:


 


(1)           change the Legal Final Payment Date or
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 Issuer 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
Agreements 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, any Purchase and Sale Agreements 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.


 


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It
shall not be necessary for the consent of the Noteholders under this Section to
approve the particular form of any proposed Series Supplement or amendment of
any Transaction Document, but it shall be sufficient if such consent shall
approve substantially the substance thereof.


 


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 Issuer’s
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.


 


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 Issuer, 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
Issuer shall maintain or cause to be maintained an office or agency in the
continental United States where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served.  The Issuer 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 Issuer will 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 the Issuer’s
performance hereunder.


 


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Section 9.03           Payment of Taxes and Other Claims.


 


(a)         The Issuer 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
Issuer or upon the income, profits or property of the Issuer, or shown to be
due on the tax returns filed by the Issuer, except any such Taxes which the
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, the 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) the Issuer is not prohibited from doing so under the
provisions of any mortgage, deed of trust or deed to secure debt affecting the
Mortgaged Property, (iii) such proceeding shall suspend the collection of the
Taxes from the Issuer and from the Mortgaged Property or the 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 the Issuer is subject and shall not constitute a default
thereunder, (v) neither the Mortgaged Property nor any part thereof or interest
therein will be in danger of being sold, forfeited, terminated, cancelled or
lost, and (vi) unless the Issuer has paid all of the Taxes under protest, the
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)         The Issuer represents and warrants to the
other parties hereto that the Issuer is duly authorized under applicable law
and the LLC Agreement to create and issue the Notes, to pledge the 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 Issuer 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)        The Issuer represents and warrants to the
other parties hereto that (i) the Issuer has good title to, and is the sole
owner of, each Mortgage Loan, Mortgaged Property and


 


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Lease, as
applicable and all other 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 Mortgages, (ii)
this Indenture creates a valid and continuing security interest in each 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
Permitted Exceptions, other exceptions permitted in the Property Management
Agreement and in the related Mortgages, and is enforceable as such against
creditors of and purchasers from the Issuer, (iii) each Mortgage creates a
valid lien upon the Mortgage Loan, Mortgaged Property and Lease, as applicable,
which lien is prior to all other liens, encumbrances and security interests,
subject only to Permitted Exceptions, other exceptions permitted in the
Property Management Agreement and in such Mortgage, and is enforceable as such
against creditors of and purchasers from the Issuer, (iv) the assignment of
rents contained in each Mortgage (or in a separate document, if required by the
local jurisdiction) constitutes the legal, valid, binding and enforceable
assignment of the Issuer’s rights in each related Mortgage Loan or Lease, as
applicable, subject only to Permitted Exceptions, other exceptions permitted in
the Property Management Agreement and in such Mortgage or separate document,
and (v) the Issuer has received all consents and approvals required by the
terms of the Collateral to Grant such Collateral included in the Collateral
Pool to the Indenture Trustee as provided herein and in the related Mortgages.


 


(c)         The Issuer has caused the filing of an
appropriate financing statement 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 Issuer has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Collateral included in the Collateral Pool.  The Issuer has not authorized the filing of
and is not aware of any financing statements against the Issuer that include a
description of collateral covering the Collateral other than any financing
statements filed in favor of the Indenture Trustee.  The Issuer is not aware of any judgment or
tax lien filings against the Issuer.


 


(e)         The Issuer shall ensure that all cash and
investment property at any time owned by the Issuer and held as part of the
Collateral Pool are 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 Issuer 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 Issuer 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.


 


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(f)         The Issuer represents and warrants that
the Indenture is not required to be qualified under
the 1939 Act and that the Issuer is not required to be registered as an
“investment company” under the 1940 Act.


 


Section 9.05           Protection of Collateral Pool.


 


The
Issuer, and, to the extent directed by the Issuer 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;


 


(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.


 


The
Issuer 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, the Issuer shall not:


 


(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;


 


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(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, the LLC
Agreement  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 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 the 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
written confirmation that the Rating Condition has been satisfied;


 


(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 LLC Agreement and this Indenture.


 


Section 9.07           Statement as to Compliance.


 


The
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 the 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 the 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) the 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           Issuer 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 Issuer 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


 


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provided in the Transaction Documents) without
the consent of the Requisite Global Majority, unless:


 


(i)            the Person (if other than the 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 the Issuer was so obligated) to make payments of principal,
interest and other amounts on all of the Notes and pay amounts owed to the
Insurers and the obligation to perform every covenant of this Indenture on the
part of the 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;


 


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


 


(iv)          the 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 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 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 the 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 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


 


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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 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 Issuer under this Indenture with the same effect
as if such Successor Person had been named as the 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 the “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 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 Issuer will be required to maintain,
or cause to be maintained, insurance of the types and amounts set forth in the
Property Management Agreement.  The
Issuer 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 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 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 the 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 the 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 the Mortgage Loan upon the part of the Borrower or the
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


 


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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 the Mortgage Loan or the
Monthly Loan Payments or the lessor’s interest in the 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 the Lease not
in accordance with its terms or as permitted under the Property Management
Agreement.  The Issuer shall not agree to
any material modification of a 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 Issuer shall promptly comply in all
material respects with all federal, state and local laws, orders, ordinances,
governmental rules and regulations or court orders affecting the Mortgaged
Property, or the use thereof (“Applicable
Laws”), currently existing or enacted in the future.


 


(b)        The Issuer 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 Property
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 the Mortgaged Property, the Issuer shall not alter the Mortgaged
Property in any manner which would materially increase the 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 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 Issuer shall give prompt notice to
the Indenture Trustee and each Insurer of the receipt by the 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 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 the Mortgaged Property; provided,
that (i) no Event of Default has occurred and is continuing under any Mortgage
or this Indenture, (ii) the 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 the 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 the Issuer or the
Mortgaged Property is subject and shall not constitute a default thereunder,
(iv) neither the


 


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Mortgaged
Property, any part thereof or interest therein, any of the related Borrowers,
the Tenants or occupants thereof, nor the 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 the Issuer or civil
or criminal liability on the Indenture Trustee, and (vi) the Issuer shall have
furnished to the Indenture Trustee all other items reasonably requested by the
Indenture Trustee.


 


Section 10.04         Estoppel Certificates.


 


The
Issuer shall use its 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 the 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 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 obligations
under the related Mortgage Loan or Lease.


 


Section 10.05         Other Rights, Etc.


 


It
is agreed that the risk of loss or damage to the Mortgaged Property is on the
Issuer, and the Indenture Trustee shall have no liability whatsoever for
decline in value of the 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.


 


The
Issuer covenants and agrees that so long as the Issuer owns, manages, is in
possession of, or otherwise controls the Mortgaged Property:  (a) all uses and operations on or of the Mortgaged
Property, whether by the 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 the Mortgaged Property


 


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in
material violation of Environmental Laws; (c) there shall be no Hazardous
Materials present at, in, on, or under the Mortgaged Property or generated,
managed, stored, treated, transported or disposed in connection with the use
and operation of the 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 the Mortgaged Property; (d) the 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) the Issuer shall, at its sole cost and expense,
fully and expeditiously cooperate in all activities pursuant to Section
10.08 below, including but not limited to providing all relevant
information and making knowledgeable persons available for interviews; (f) the
Issuer shall, at its sole cost and expense, perform any environmental site
assessment or other investigation of environmental conditions in connection
with the 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 results thereof, and the
Indenture Trustee shall be entitled to rely on such reports and other results
thereof; (g) the 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 (1) reasonably effectuate remediation of any
Hazardous Materials in, on, under or from the Mortgaged Property associated
with an Environmental Release and (2) comply with any Environmental Law in any
material respect; (h) the 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) the 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 the Mortgaged Property in
violation of any Environmental Law, (B) any non-compliance with any
Environmental Laws related in any way to the 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 the Mortgaged Property, and (E) any written or oral notice or other
communication of which the Issuer becomes aware from any source whatsoever
(including but not limited to a governmental agency) relating in any way to
Hazardous Materials at the 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 


 


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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.


 


ARTICLE XI


 


COSTS


 


Section 11.01         Performance at the Issuer’s Expense.


 


The
Issuer acknowledges and confirms 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 Issuer further acknowledges and confirms that it shall be
responsible for the payment of all costs of reappraisal of the Mortgaged
Property or any part thereof, whether required by law, regulation or any
governmental or quasi-governmental authority. 
The Issuer hereby acknowledges and agrees 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 the
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 the Issuer to the Indenture Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Indenture Trustee an Officer’s Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, 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.


 


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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 and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.


 


Any
certificate or opinion of an Authorized Officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, 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 the Issuer stating that the information with respect to such factual matters
is in the possession of the 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
Issuer 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 


 


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part of the 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.


 


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 Issuer.  Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “Act”
of the Noteholders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 5.01) conclusive in favor of the
Indenture Trustee and the Issuer 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 Issuer 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
Issuer 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 


 


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confirmed
in a writing delivered or mailed as aforesaid, to: (i) in the case of the
Issuer, c/o Spirit Master Funding, LLC, 14631 N. Scottsdale Road, Suite 200,
Scottsdale, Arizona 85254, facsimile number: 480-606-0826, Attention: Catherine
Long, Chief Financial Officer; (ii) in the case of the Indenture Trustee,
Citibank, N.A., at 388 Greenwich Street, 14th Floor, New York, New York 10013,
Attention: Structured Finance Agency and Trust- Spirit Master Funding, LLC,
Series 2005-1, 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 Issuer shall bind its
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 the Issuer
be obligated or required to pay interest hereunder at a rate which could
subject the Indenture 


 


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Trustee
to either civil or criminal liability as a result of being in excess of the
maximum interest rate which the Issuer is permitted by applicable law to
contract or agree to pay.  If by the
terms of this Indenture, the Issuer is at any time required or obligated to pay
interest hereunder at a 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
Issuer 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 the
Issuer irrevocably submits to the jurisdiction of each such court in respect of
any such action or proceeding.  The
Issuer hereby waives, 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 the 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.


 


90





















 


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 Issuer on the Notes or under this Indenture or any certificate or other
writing delivered in connection herewith or therewith, against (i) the 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 the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee, agent or Control Person of the 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 the Issuer or of any successor or assignee of the
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.


 


The
Issuer agrees that, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, during the Issuer’s normal business
hours, to examine all the books of account, records, reports, and other papers
of the Issuer, to make copies and extracts therefrom and to discuss the
Issuer’s affairs, finances and accounts relating to the Issuer with the
officers of Spirit Finance on behalf of the Issuer and the Issuer’s employees
and independent registered 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 Issuer.


 


Neither
the Issuer nor any of the directors, officers, employees, agents or Control
Persons of the Issuer, shall be under any liability to the Noteholders for any
action taken or for 


 


91





















 


refraining from the taking of any action in good faith
pursuant to this Agreement, or for errors in judgment.  The Issuer, and any director, officer,
employee or agent of the 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.  The Issuer shall be under no
obligation to appear in, prosecute or defend any legal action unless such
action is related to its duties under this Agreement and which in its opinion
does not involve it in any expenses or liability; provided, however,
that the Issuer may in its discretion undertake any such action which it may
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Noteholders and the
Insurers hereunder.


 


92





















 


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 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 New York

  	
  )

  
	
   

  	
  )  ss.:

  
	
  COUNTY
  OF New York

  	
  )

  



 


On
this 26th day of July, 2005, 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/
  Mirna Cardona

  	
   

  
	
   

  	
  Notary
  Public

  



 


NOTARIAL
SEAL


 





















 


	
  STATE
  OF NEW YORK

  	
  )

  
	
   

  	
  )  ss.:

  
	
  COUNTY
  OF KINGS

  	
  )

  



 


On
this 26th day of July, 2005, before me, the undersigned officer,
personally appeared John Hannon, and acknowledged himself to me to be an
Assistant 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/
  Nanette Murphy

  	
   

  
	
   

  	
  Notary
  Public

  



 


NOTARIAL
SEAL


 





















 


EXHIBIT A-1


 


FORM OF RESTRICTED GLOBAL COMMERCIAL MORTGAGE NOTE


 


144A NOTE


 


SERIES [    ], CLASS [    ]
NOTE


 


	
  Note
  Rate: [    ]%

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

  
	
   

  	
   

  
	
  Series
  Closing Date:  [     ],
  2005

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

  
	
   

  	
   

  
	
  First
  Payment Date: [     ], 2005

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

  
	
   

  	
   

  
	
  Issuer:  Spirit Master Funding, LLC

  	
  CUSIP
  No. __________

  
	
   

  	
   

  
	
  Indenture
  Trustee:

  Citibank, N.A.

  	
  ISIN
  No. __________

  
	
   

  	
   

  
	
  Note
  No.  __

  	
  Property
  Manager and Special Servicer:  

  Spirit Finance Corporation

  
	
   

  	
   

  
	
   

  	
  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 AND TO REPORT
THIS NOTE AND SUCH BENEFICIAL INTEREST ON ALL APPLICABLE TAX RETURNS IN A
MANNER CONSISTENT WITH SUCH TREATMENT.


 


THE HOLDER OF THIS NOTE OR ANY OWNERSHIP INTEREST HEREIN WILL
BE DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION
2.05(l) OF THE INDENTURE.


 


[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 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, a Delaware limited liability company, for value received, hereby
promises to pay to Cede & Co. or 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 (each, a “Class”) pursuant to a Master Indenture,
to be dated on or about [          ],
2005 (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 2005-1 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 Issuer, together with the assets of
any special purpose, bankruptcy remote affiliate of the Issuer that co-issues
any Related Series Notes (each a “Co-Issuer”)
(individually, the “Collateral”
and, collectively, the “Collateral Pool”).  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 will 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 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 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 evidencing the same Aggregate Series Principal Balance, 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 (A) such transferee is not, and is not purchasing such Note on
behalf of, as a fiduciary of, as trustee of, or with assets of, a Plan or
(B)(i) such Note is rated investment grade or better as of the date of the
purchase, (ii) it believes that such Note is properly treated as indebtedness
without substantial equity features for purposes of ERISA and the regulations
thereunder and agrees to so treat such Note and (iii) its acquisition and
holding of such Note 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 registration of 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, 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, the Indenture Trustee, the Note
Registrar or any such agent shall be affected by notice to the contrary.


 


The
Indenture, the Property Management Agreement, the Environmental Agreement, any
Purchase and Sale Agreements and the Notes are subject to amendment, 


 


A-1-5





















 


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-1-6





















 


IN
WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed by
the Issuer.


 


Dated:    [                    ]


 


	
   

  	
  SPIRIT
  MASTER FUNDING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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 COMMERCIAL MORTGAGE NOTE


 


[TEMPORARY] [PERMANENT] REGULATION S GLOBAL NOTE


 


SERIES [    ], CLASS [    ]
NOTE


 


	
  Note
  Rate: [    ]%

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

  
	
   

  	
   

  
	
  Series
  Closing Date:  [      ],
  2005

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

  
	
   

  	
   

  
	
  First
  Payment Date: [      ], 2005

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

  
	
   

  	
   

  
	
  Issuer:  Spirit Master Funding, LLC

  	
  CUSIP
  No. ___________

  
	
   

  	
   

  
	
  Indenture
  Trustee:

  Citibank, N.A.

  	
  ISIN
  No. ___________

  
	
   

  	
   

  
	
  Note
  No.  __

  	
  Property
  Manager and Special Servicer:  

  Spirit Finance Corporation

  
	
   

  	
   

  
	
   

  	
  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 AND TO REPORT THIS NOTE AND SUCH BENEFICIAL INTEREST ON ALL APPLICABLE
TAX RETURNS IN A MANNER CONSISTENT WITH SUCH TREATMENT.


 


THE HOLDER OF THIS NOTE OR ANY OWNERSHIP INTEREST HEREIN WILL
BE DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION
2.05(l) OF THE INDENTURE.


 


[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 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, a Delaware limited liability company, for value received, hereby
promises to pay to Cede & Co. or 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 (each, a “Class”) pursuant to a Master Indenture,
to be dated on or about [          ],
2005 (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 2005-1 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 Issuer, together with the assets of
any special purpose, bankruptcy remote affiliate of the Issuer that co-issues
any Related Series Notes (each a “Co-Issuer”)
(individually, the “Collateral”
and, collectively, the “Collateral Pool”).  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 will 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 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 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 Mortgaged
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 evidencing the same Aggregate Series Principal Balance, 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 (A) such transferee is not, and is not purchasing such Note on
behalf of, as a fiduciary of, as trustee of, or with assets of, a Plan or
(B)(i) such Note is rated investment grade or better as of the date of the
purchase, (ii) it believes that such Note is properly treated as indebtedness
without substantial equity features for purposes of ERISA and the regulations
thereunder and agrees to so treat such Note and (iii) its acquisition and
holding of such Note 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 registration of 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 reduced for all
purposes by the amount so exchanged and endorsed and (ii) the Permanent 


 


A-2-5





















 


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, 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, 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 Issuer has caused this instrument to be duly executed by
the Issuer.


 


Dated:    [                    ]


 


	
   

  	
  SPIRIT
  MASTER FUNDING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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 COMMERCIAL MORTGAGE NOTE


 


DEFINITIVE NOTE


 


SERIES [    ], CLASS [    ]
NOTE


 


	
  Note
  Rate: [    ]%

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

  
	
   

  	
   

  
	
  Series
  Closing Date:  [        ],
  2005

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

  
	
   

  	
   

  
	
  First
  Payment Date: [        ], 2005

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

  
	
   

  	
   

  
	
  Issuer:  Spirit Master Funding, LLC

  	
  CUSIP
  No. __________

  
	
   

  	
   

  
	
  Indenture
  Trustee:

  Citibank, N.A.

  	
  ISIN
  No. __________

  
	
   

  	
   

  
	
  Note
  No.  __

  	
  Property
  Manager and Special Servicer:  

  Spirit Finance Corporation

  
	
   

  	
   

  
	
   

  	
  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 AND TO REPORT THIS NOTE ON ALL APPLICABLE TAX RETURNS IN A MANNER
CONSISTENT WITH SUCH TREATMENT.


 


THE HOLDER OF THIS NOTE OR ANY OWNERSHIP INTEREST HEREIN WILL
BE DEEMED TO REPRESENT TO ONE OF THE REPRESENTATIONS CONTAINED IN SECTION
2.05(l) OF THE INDENTURE.


 


[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.


 










(1)   Include
in Class [         ] Note only.


 


A-3-2





















 


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 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.


 


A-3-3





















 


The Issuer, a
Delaware limited liability company, for value received, hereby promises to pay
to [                           ]
or 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 (each,
a “Class”) pursuant to a Master
Indenture, to be dated on or about [        ],
2005 (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 2005-1 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 Issuer, together with the assets of any special
purpose, bankruptcy remote affiliate of the Issuer that co-issues any Related
Series Notes (each a “Co-Issuer”)
(individually, the “Collateral”
and, collectively, the “Collateral Pool”).  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 will 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 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 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 Mortgaged 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 evidencing the same
Aggregate Series Principal Balance, 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 (A) such transferee is not, and is not purchasing such Note on
behalf of, as a fiduciary of, as trustee of, or with assets of, a Plan or
(B)(i) such Note is rated investment grade or better as of the date of the
purchase, (ii) it believes that such Note is properly treated as indebtedness
without substantial equity features for purposes of ERISA and the regulations
thereunder and agrees to so treat such Note and (iii) its acquisition and
holding of such Note 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 registration of 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,
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, 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 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-3-6





















 


IN WITNESS
WHEREOF, the Issuer has caused this instrument to be duly executed by the
Issuer.


 


	
  Dated:

  	
  [                  ]

  	
   

  
	
   

  	
   

  
	
   

  	
  SPIRIT MASTER FUNDING, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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:




 


 


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-3-8





















 


EXHIBIT B


 


FORM OF
TRUSTEE REPORT PROVIDED IN 

THE INDENTURE TRUSTEE’S WEBSITE


 


B-1





















 


EXHIBIT C-1


 


FORM OF
TRANSFEROR CERTIFICATE


FOR
TRANSFERS OF DEFINITIVE NOTES


 


[Date]


 


Citibank, N.A.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Structured Finance
Agency and Trust- Spirit Master Funding, LLC, Series 2005-1


 


Re:          Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series [       ]
(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 a Master Indenture, to be dated on or about July 26,
2005 (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 2005-1 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.


 


C-1-2





















 


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 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.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Structured Finance
Agency and Trust- Spirit Master Funding, LLC, Series 2005-1


 


Re:          Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series [          ]
(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 [         ],
2005 of $[              ].  The Notes, including the Transferred Notes,
were issued pursuant to a Master Indenture, to be dated on or about July 26,
2005 (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 2005-1 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 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 of 1933, as amended (the


 


C-2-1





















 


“Securities Act”), and has
completed one of 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 July [     ],
2005, 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 and the
Insurer and the Insurance Policy as has been requested by the Transferee from
the Issuer 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 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


 


C-2-2





















 


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 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
SEC 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 under the Securities
Act of 1933, as amended (“Rule 144A”),
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.


 


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 authority having
supervision over any such institutions or is a foreign


 










(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





















 


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 statements on the basis of their market value, and no
current information with respect to the cost


 


C-2-5





















 


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
SEC 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 under the Securities Act of 1933, as amended (“Rule 144A”), 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.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Structured Finance
Agency and Trust- Spirit Master Funding, LLC, Series 2005-1


 


Re:          Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series [       ]
(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 [        ],
2005 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 a
Master Indenture, to be dated on or about July 26, 2005 (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 2005-1 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, 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 SEC 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 under the Securities Act of 1933 (“Rule 144A”)
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.


 


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 as demonstrated in its latest annual financial statements, a copy of which is


 










(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





















 


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.


 


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.


 


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 Securities Exchange Act of 1934.


 


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.


 


	
   

  	
   

  	
   

  	
   

  	
  Will the Transferee be purchasing the Transferred Notes

  
	
  o

  	
   

  	
  o

  	
   

  	
  only for the
  Transferee’s own account?

  
	
  Yes

  	
   

  	
  No

  	
   

  	
   

  



 


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
SEC 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 under the Securities Act of 1933 (“Rule 144A”)
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.


 


	
   

  	
   

  	
   

  	
   

  	
  Will the Transferee be purchasing the Transferred Notes

  
	
  o

  	
   

  	
  o

  	
   

  	
  only for the
  Transferee’s own account?

  
	
  Yes

  	
   

  	
  No

  	
   

  	
   

  



 


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.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Structured Finance
Agency and Trust- Spirit Master Funding, LLC, Series 2005-1


 


Re:          Spirit Master Funding,
LLC, Net-Lease Mortgage Notes, Series [        ]
(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 [       ],
2005 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 a
Master Indenture, to be dated on or about July 26, 2005 (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 2005-1 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.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Structured Structured
Finance Agency and Trust- Spirit Master Funding, LLC, Series 2005-1


 


Re:          Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series [      ]
(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 [     ],
2005 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 a
Master Indenture, to be dated on or about July 26, 2005 (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 2005-1 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.


388 Greenwich Street, 14th Floor


New York, New York 10013


Attention:  Structured Finance
Agency and Trust- Spirit Master Funding, LLC, Series 2005-1


 


Re:          Spirit
Master Funding, LLC, Net-Lease Mortgage Notes, Series [       ]
(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 a Master Indenture, to be dated on
or about July 26, 2005 (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 2005-1 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:  Structured Finance Agency and Trust- Spirit
Master Funding, LLC, Series 2005-1


 


Spirit
Master Funding, LLC

14631 N. Scottsdale Road, Suite 200

Scottsdale, Arizona 85254

Attention: Catherine Long, Chief Financial Officer


 


In
accordance with Section 6.03 of the Master Indenture, to be dated on
July 26, 2005 (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 2005-1 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
2005-1 (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.


 


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


 


E-1-1





















 


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:  Structured Finance Agency and Trust- Spirit
Master Funding, LLC, Series 2005-1


 


Spirit
Master Funding, LLC

14631 N. Scottsdale Road, Suite 200

Scottsdale, Arizona 85254

Attention: Catherine Long, Chief Financial Officer


 


In
accordance with Section 6.03 of the Master Indenture, to be dated on
July 26, 2005 (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 2005-1 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
2005 (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


 


3





















 


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 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:

  	
   

  	
   

  
					



 


4





















 


EXHIBIT F


 


REPRESENTATIONS AND WARRANTIES


 


 


1.             Mortgage Loans.  With
respect to each Mortgage Loan (as identified in Schedule I-A), Seller hereby
represents and warrants, as of the date herein below specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule I
hereto, that:


 


(a)           Immediately prior to the transfer and
assignment of the Mortgage Loan to Seller, Purchaser had good and insurable fee
title to, and was the sole owner and holder of, the Mortgage Loan, free and
clear of any and all liens, encumbrances and other interests on, in or to the
Mortgage Loan.  Such transfer and
assignment from Seller to Purchaser of the Mortgage Loan by collateral
assignment and by individual allonges of the Mortgage Notes and Assignments of
the Mortgages in blank validly assigns all of Seller’s right, title and
ownership of the Mortgage Loan to Purchaser (and, with respect to the Mortgage,
to the Collateral Agent) free and clear of any pledge, lien, encumbrance or
security interest.


 


(b)           Seller has full right and authority to sell,
contribute, assign and transfer the Mortgage Loan to Purchaser.  The entire agreement with Seller (whether
originated by Seller or a different originator) is contained in the Loan
Documents and there are no warranties, agreements or options regarding such
Mortgage Loan or the related Mortgaged Property not set forth therein.  Other than the Loan Documents, there are no
agreements between any predecessor in interest in the Mortgage Loan and the
Borrower.


 


(c)           The information pertaining to the Mortgage
Loan set forth in the Mortgage Loan Schedule attached to the Purchase and Sale
Agreements (the “Mortgage Loan Schedule”) was true and correct in all material
respects as of the related Transfer Date. 
The Mortgage Loan was originated or acquired in accordance with, and
fully complies with, the Underwriting Guidelines in all material respects.  The related Loan File contains all of the
documents and instruments required to be contained therein.


 


(d)           The following (“Permitted Exceptions”): (i)
liens for real estate taxes and special assessments not yet due and payable or
due but not yet delinquent, (ii) covenants, conditions and 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) those purchase options described under “Description of
the Mortgage Loans, the Mortgaged Properties and the Leases —Terms Governing
the Leases—Third Party Purchase Option” and “—Third Party Options to Purchase”
herein and (iv) other matters to which like properties are commonly subject,
which matters referred to in clauses (i), (ii), (iii), and (iv), (v) or (vi) 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


 


5





















 


the current ability of the
Mortgaged Property to generate net operating income sufficient to service the
Mortgage Loan.  Financing Statements have
been filed and/or recorded (or, if not filed and/or recorded, have been
submitted in proper form for filing and recording), in all public places
necessary to perfect a valid first priority security interest in all items of
personal property defined as part of the Mortgaged Property  and in all cases, subject to a purchase money
security interest and to the extent perfection may be effected pursuant to
applicable law solely by recording or filing Financing Statements.


 


(e)           With respect to each Mortgage Loan, the
related Mortgage constitutes a valid, legally binding and enforceable first
priority lien upon the related Mortgaged Property securing such Mortgage Loan
and the improvements located thereon and forming a part thereof, prior to all
other liens and encumbrances, except for Permitted Exceptions.  The lien of the Mortgage is insured by an
ALTA lender’s title insurance policy (“Title Policy”), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of the Mortgage Loan, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan after all advances of principal, subject
only to Permitted Exceptions (or, if a title insurance policy has not yet been
issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance “marked up” (or by
“pro-forma” otherwise agreed to in a closing instruction letter countersigned
by the title company) as of the closing date of the Mortgage Loan).  Each Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) is in full force and effect, all
premiums thereon have been paid and no material claims have been made
thereunder and no claims have been paid thereunder.  Seller has not, by act or omission, done
anything that would materially impair the coverage under such Title Policy.  Immediately following the transfer and
assignment of the Mortgage Loan to Purchaser, such Title Policy (or, if it has
yet to be issued, the coverage to be provided thereby) will inure to the
benefit of Purchaser without the consent of or notice to the insurer.


 


(f)            Seller has not waived any material default,
breach, violation or event of acceleration existing under the Mortgage or
Mortgage Note.


 


(g)           The Borrower has not waived any material
default, breach, violation or event of acceleration by the Tenant existing
under the Lease.


 


(h)           There is no valid offset, defense or
counterclaim to the payment or performance obligations of the Mortgage Loan.


 


(i)            The Mortgaged Property securing any Mortgage
Loan is free and clear of any damage that would materially and adversely affect
its value as security for the Mortgage Loan. 
No proceeding for the condemnation of all or any material portion of the
Mortgaged Property has been commenced.


 


(j)            The Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.


 


6





















 


(k)           The proceeds of the Mortgage Loan have been
fully disbursed and there is no requirement for future advances
thereunder.  All costs, fees and expenses
incurred in making, closing and recording the Mortgage Loan, including, but not
limited to, mortgage recording taxes and recording and filing fees relating to
the origination of such Mortgage Loan, have been paid.  Any and all requirements as to completion of
any on-site or off-site improvement by the Borrower and as to disbursements of
any escrow funds therefor that were to have been complied with have been
complied with.


 


(l)            The Borrower under the related Mortgage Note,
Mortgage and all other Loan Documents had the power, authority and legal
capacity to enter into, execute and deliver the same, and, as applicable, such
Mortgage Note, Mortgage and Loan Documents have been duly authorized, properly
executed and delivered by the parties thereto, and each is the legal, valid and
binding obligation of the maker thereof (subject to any non recourse provisions
contained in any of the foregoing agreements and any applicable state anti
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the rights of
creditors generally and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).


 


(m)          All improvements upon the Mortgaged Property
securing any Mortgage Loan are insured under insurance policies (as
described  in a Schedule to the Purchase
and Sale Agreements the “Insurance Schedule”). 
The Mortgage Loan documents require the Borrower to maintain, or cause
the Tenant to maintain, and the Lease requires the Tenant to maintain insurance
coverage described on the Insurance Schedule and all insurance required under
applicable law including, without limitation, insurance against loss by hazards
with extended coverage in an amount (subject to a customary deductible) at
least equal to the full replacement cost of the improvements located on such
Mortgaged Property, including without limitation, flood insurance if any
portion of the improvements located upon the Mortgaged Property was, at the time
of the origination of the Mortgage Loan, in a flood zone area as identified in
the Federal Register by the Federal Emergency Management Agency as a 100 year
flood zone or special hazard area, and flood insurance was available under the
then current guidelines of the Federal Insurance Administration is in effect
with a generally acceptable insurance carrier. 
The Loan Documents require the Borrower to maintain, or to cause the
Tenant to maintain on the Mortgaged Property securing any Mortgage Loan a fire
and extended perils insurance policy, in an amount not less than the
replacement cost and the amount necessary to avoid the operation of any
co-insurance provisions with respect to the Mortgaged Property. All such
insurance policies contain a standard “additional insured” clause (or similar
clause) naming the Borrower (as landlord under the related Lease), its
successors and assigns (including, without limitation, subsequent owners of the
Mortgaged Property), as additional insured, and may not be reduced, terminated
or canceled without thirty (30) (and, in some cases ten (10)) days’ prior
written notice to the additional insured. 
In addition, the Mortgage requires the Borrower to (i) cause Seller, as
the Mortgagee, to be named as an additional insured mortgagee, and (ii)
maintain (or to require the Tenant to maintain) in respect of the Mortgaged
Property workers’ compensation insurance (if applicable), commercial general,
liability insurance in


 


7





















 


amounts generally required by
Seller, and at least 6 months rental or business interruption insurance.  The related Loan Documents obligate the
Borrower to maintain such insurance and, at such Borrower’s failure to do so,
authorizes the mortgagee to maintain such insurance at the Borrower’s cost and
expense and to seek reimbursement therefor from such Borrower.  Each such insurance policy, as applicable, is
required to name the holder of the Mortgage as an additional insured or contain
a mortgagee endorsement naming the holder of the Mortgage as loss payee and
requires prior notice to the holder of the Mortgage of termination or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.  There have been no acts or omissions that
would impair the coverage of any such insurance policy or the benefits of the
mortgage endorsement.  All insurance
contemplated in this section is maintained with insurance companies with a General
Policy Rating of “A” or better by S&P or A:VI or better by Best’s Insurance
Guide and are licensed to do business in the state wherein the Borrower or the
Mortgaged Property subject to the policy, as applicable, is located.


 


(n)           As of the Series Closing Date, with the
exception of the 40 Mortgaged Properties securing 40 Mortgage Loans,
representing 57.7% of the Mortgage Loans (by Allocated Collateral Amount) for
each of which there is an environmental insurance policy in place), the
Mortgaged Property securing any Mortgage Loan was subject to one or more
environmental site assessments or reports (or an update of a previously
conducted assessment or report) prior to the origination of such Mortgage Loan,
and Seller has no knowledge of any material and adverse environmental
conditions or circumstance affecting such Mortgaged Property that was not
disclosed in the related assessment or report(s).  There are no material and adverse
environmental conditions or circumstances affecting the Mortgaged Property securing
any such Mortgage Loan other than, with respect to any adverse environmental
condition described in such report, those conditions for which remediation has
been completed and, thereafter, to the extent that such report or remediation
program so recommended, (i) a program of annual integrity testing and/or
monitoring was recommended and implemented in connection with the Mortgaged
Property securing any such Mortgage Loan or an adjacent or neighboring
property; (ii) an operations and maintenance plan or periodic monitoring of
such mortgaged Property or nearby properties was recommended and implemented or
(iii) a follow-up plan was otherwise required to be taken under CERCLA (as
defined below) or under regulations established thereunder from time to time by
the Environmental Protection agency and such plan has been implemented in the
case of (i), (ii) and (iii) above, the Borrower determined in accordance with
the Underwriting Guidelines that adequate funding was available for such
program or plan, as applicable.  Seller
has not taken any action with respect to the Mortgage Loan or the Mortgaged
Property securing such Mortgage Loan that could subject Purchaser, or its
successors and assigns in respect of the Mortgage Loan, to any liability under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (“CERCLA”) or any other applicable federal, state or local
environmental law, and Seller has not received any actual notice of a material
violation of CERCLA or any applicable federal, state or local environmental law
with respect to the Mortgaged Property securing such Mortgage Loan that was not
disclosed in the related report.  The
Mortgage or other Mortgage Loan


 


8





















 


Documents require the Borrower
(and the Leases require the Tenant) to comply with all applicable federal,
state and local environmental laws and regulations.


 


(o)           The Mortgage Loan is not cross-collateralized
with any mortgage loan that is not included in the Collateral Pool.


 


(p)           The terms of the Mortgage, Mortgage Note, and
other Loan Documents have not been impaired, waived, altered, modified,
satisfied, canceled or subordinated in any material respect, except by written
instruments that are part of the Loan File, recorded or filed in the applicable
public office if necessary to maintain the priority of the lien of the related
Mortgage, delivered to Purchaser or its designee.


 


(q)           There are no delinquent taxes, ground rents,
assessments for improvements or other similar outstanding lienable charges affecting
the Mortgaged Property which are or may become a lien of priority equal to or
higher than the lien of the Mortgage. 
For purposes of this representation and warranty, real property taxes
and assessments shall not be considered unpaid until the date on which interest
and/or penalties would be payable thereon.


 


(r)            Except for Mortgage Loans secured by Ground
Leases, the interest of the Borrower in the Mortgaged Property consists of a
fee simple estate in real property.


 


(s)           Each Mortgage Loan is a whole loan and not a
participation interest.


 


(t)            The assignment of the Mortgage referred to in
the Loan File constitutes the legal, valid and binding assignment of such
Mortgage from the relevant assignor to Purchaser or to the Collateral
Agent.  The Assignment of Leases and
Rents set forth in the Mortgage or separate from the Mortgage and related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject only to Permitted Exceptions, enforceable first
priority lien and first priority security interest in the Borrower’s interest
in all leases, subleases, licenses or other agreements pursuant to which any
person is entitled to occupy, use or possess all or any portion of the real
property subject to the Mortgage, and each assignor thereunder has the full
right to assign the same.  The related
assignment of Mortgage or any assignment of leases and rents not included in a
Mortgage, executed and delivered in favor of Purchaser is in recordable form
and constitutes a legal, valid and binding assignment, sufficient to convey to
the assignee named therein all of the assignor’s right, title and interest in,
to and under such assignment of leases and rents.


 


(u)           All escrow deposits relating to the Mortgage
Loan that are required to be deposited with the related Seller or its agent
have been so deposited.


 


(v)           As of the date of origination of such
Mortgage Loan and, as of the Transfer Date, as the case may be, the Mortgaged
Property securing such Mortgage Loan was and is free and clear of any
mechanics’ and materialmen’s liens or liens in the nature thereof which create
a lien prior to that created by the Mortgage, except those which are insured
against by the Title Policy referred to in (e) above.


 


9





















 


(w)          As of the date of the origination of the
Mortgage Loan, no improvement that was included for the purpose of determining
the appraised value of the related Mortgaged Property securing such Mortgage
Loan at the time of origination of the Mortgage Loan lay outside the boundaries
and building restriction lines of such property in any way that would
materially and adversely affect the value of such Mortgaged Property or the
ability to operate the Mortgaged Property under the related Lease (unless
affirmatively covered by the title insurance referred to in paragraph (e)
above), and no improvements on adjoining properties encroached upon such
Mortgaged Property to any material extent.


 


(x)            (i) There exists no material default, breach or
event of acceleration under the Mortgage Loan or any of the Loan Documents or
the Lease, (ii) there exists no event (other than payments due but not yet
delinquent) that, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute such a material default, breach or
event of acceleration (iii) no payment on any Mortgage Loan is, or has
previously been during any time owned by Seller or Purchaser, 30 or more days
delinquent and (iv) no payment on any Lease is or has previously been 30 or
more days delinquent; provided, however, that this representation and warranty
does not cover any default, breach or event of acceleration that specifically
pertains to any matter otherwise covered or addressed by any other representation
and warranty made by Seller with respect to the Mortgage Loans.


 


(y)           In connection with the origination of each
Mortgage Loan, Seller inspected or caused to be inspected the Mortgaged
Property securing the Mortgage Loan by inspection, appraisal or otherwise as
required in Seller’s Underwriting Guidelines then in effect.


 


(z)            The Mortgage Loan contains no equity
participation by or shared appreciation rights in the lender or beneficiary
under the Mortgage, and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the Mortgaged
Property securing the Mortgage Loan, or for negative amortization.


 


(aa)         No holder of the Mortgage Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the Mortgaged Property securing the Mortgage
Loan, directly or indirectly, for the payment of any amount required by the
Mortgage Loan (other than amounts paid by the Tenant as specifically provided
under the related Lease).


 


(bb)         To Seller’s knowledge, based on due diligence
customarily performed in the origination or acquisition of comparable mortgage
loans by Seller, as of the date of origination or acquisition of the Mortgage
Loans, the related Borrowers, were in compliance with all applicable laws
relating to the ownership and operation of the Mortgaged Properties securing
the Mortgage Loan as they were then operated and were in possession of all
material licenses, permits and authorizations required by applicable laws for
the ownership and operation of such Mortgaged Properties as they were
operated.  With respect to Mortgaged
Properties that are operated as franchised properties, and except with respect
to Mortgage Loans for which the related Tenant is the


 


10





















 


franchisor, the Tenant of such
Mortgaged Property has entered into a legal, valid, and binding franchise
agreement and such lessee operator has represented in the applicable lease
documents that, as of the date of origination or acquisition of the Mortgage
Loan, there were no defaults under the franchise agreement by such Tenant.


 


(cc)         The origination, servicing and collection
practices Sellers used with respect to the Mortgage Loan since Seller’s origination
or acquisition thereof, have complied with applicable law in all material
respects and are consistent and in accordance with the terms of the related
Loan Documents and in accordance with the applicable servicing standard and
customary industry standards.


 


(dd)         The Mortgage or Mortgage Note, together with
applicable state law, contains customary and enforceable provisions (subject to
the exceptions set forth in paragraph (l) above) such as to render the rights
and remedies of the holders thereof adequate for the practical realization
against the Mortgaged Property securing the Mortgage Loan of the principal
benefits of the security intended to be provided thereby, including the right
of foreclosure under the laws of the state in which the Mortgaged Property
securing the Mortgage Loan is located governing foreclosures of mortgages and
deeds of trust under power of sale.


 


(ee)         The Mortgage provides that insurance proceeds
and condemnation proceeds will be applied for one of the following purposes: either
to restore or repair the Mortgaged Property securing the Mortgage Loan, to
repay the principal of the Mortgage Loan or as otherwise directed by the holder
of such Mortgage.


 


(ff)           There are no actions, suits, legal,
arbitration or administrative proceedings or investigations by or before any
court or governmental authority or, to the best of Seller’s knowledge, pending
against or affecting the Borrower, the Mortgaged Property securing the Mortgage
Loan that, if determined adversely to such Borrower, Mortgaged Property
securing the Mortgage Loan, would materially and adversely affect the value of
the Mortgaged Property securing the Mortgage Loan or the ability of the
Borrower to pay principal, interest or any other amounts due under the Mortgage
Loan or the Lease, as applicable.


 


(gg)         If the Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage. 
Except in connection with a trustee’s sale or as otherwise required by
applicable law, after default by the Borrower, no fees or expenses are payable
to such trustee.


 


(hh)         Except in cases where either (i) a release of
a portion of the Mortgaged Property securing the Mortgage Loan was contemplated
at origination of the Mortgage Loan and such portion was not considered
material for purposes of  underwriting
the Mortgage Loan, or (ii) release is conditioned upon the satisfaction of
certain underwriting and legal requirements and the payment of a release price,
the Mortgage Note or Mortgage do not require the holder thereof to release all
or any portion of the Mortgaged Property securing the Mortgage Loan from the
lien of the Mortgage except upon payment in full of all amounts due under the
Mortgage Loan.


 


11





















 


(ii)           The Mortgage does not permit the Mortgaged
Property securing the Mortgage Loan to be encumbered by any lien junior to or
of equal priority with the lien of the Mortgage (excluding any lien relating to
another Mortgage Loan that is cross collateralized with the Mortgage Loan)
without the prior written consent of the holder thereof.


 


(jj)           The Borrower is not a debtor in any state or
federal bankruptcy or insolvency proceeding.


 


(kk)         As of the date of origination or acquisition
of each Mortgage by Seller, each Borrower which is not a natural person was
duly organized and validly existing under the laws of the state of its
jurisdiction.


 


(ll)           The Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of the Mortgage
Loan if, without complying with the requirements of the Mortgage Loan, the
Mortgaged Property securing the Mortgage Loan, or any controlling interest in
the Borrower, is directly or indirectly transferred or sold.


 


(mm)       The Mortgage Loan Documents for each of the
Mortgage Loans provide that the Borrower is to provide periodic financial and
operating reports including, without limitation, annual profit and loss
statements, statements of cash flow and other related information that
Purchaser reasonably requests from time to time.


 


(nn)         To Seller’s actual knowledge, based upon
zoning letters, zoning report, the title insurance policy insuring the lien of
the Mortgage, historical use and/or other due diligence customarily performed
by Seller in connection with the origination of the Mortgage Loan, the
improvements located on or forming part of such Mortgaged Property securing the
Mortgage Loan comply in all material respects with applicable zoning laws and
ordinances (except to the extent that they may constitute legal non-conforming
uses).


 


(oo)         Any Mortgaged Property is located within one
of the 50 United States or the District of Columbia.


 


(pp)         With respect to a Mortgage Loan secured by
Mortgaged Property located in “seismic zones” 3 or 4, the Borrower or Purchaser
(or an affiliate of Purchaser) has obtained, and is required under the Mortgage
Loan Documents to maintain earthquake insurance with respect to the
improvements on and forming a part of such Mortgaged Property or is required to
cause the Tenant to maintain (and the Tenant has obtained) earthquake insurance
if such Mortgaged Property is located in any such area.


 


(qq)         Seller does not have knowledge of any
circumstance or condition with respect to such Mortgage Loan, the Mortgaged
Property securing the Mortgage Loan, the Lease or the Borrower’s or the
Tenant’s credit standing that could reasonably be expected to cause Purchaser
to regard such Mortgage Loan as unacceptable security, cause such Mortgage Loan
or Lease to become delinquent or have a material adverse effect on the value or
marketability of such Mortgage Loan.


 


12





















 


(rr)           The Mortgaged Property securing the Mortgage
Loan has adequate rights of access to public rights-of-way and is served by
utilities, including, without limitation, adequate water, sewer, electricity,
gas, telephone, sanitary sewer, and storm drain facilities. All public
utilities necessary to the continued use and enjoyment of the Mortgaged Property
securing the Mortgage Loan as presently used and enjoyed are located in such
public right-of-way abutting such Mortgaged Property or are the subject of
access easements for the benefit of the Mortgaged Property, and all such
utilities are connected so as to serve such Mortgaged Property without passing
over other property or are the subject of access easements for  the benefit of such Mortgaged Property. All
roads necessary for the full use of the Mortgaged Property securing the
Mortgage Loan for its current purpose have been completed and dedicated to
public use and accepted by all governmental authorities or are the subject of
access easements for the benefit of such Mortgaged Property.


 


(ss)         With respect to any Mortgage Loan where all
or a material portion of the Mortgaged Property securing such Mortgage Loan is
a leasehold estate, and the related Mortgage does not also encumber the related
lessor’s fee interest in such Mortgaged Property, based upon the terms of the
Ground Lease and any estoppel letter or other writing received from the Ground
Lessor included in the related Loan File and, if applicable, the related
Mortgage:


 


(1)           The Ground Lease or a memorandum regarding
such Ground Lease has been duly recorded. 
The Ground Lessor has permitted the interest of the Ground Lessee to be
encumbered by the related Mortgage.  To
the best of Seller’s knowledge, there has been no material change in the terms
of the Ground Lease since its recordation, except by any written instruments
which are included in the related Loan File.


 


(2)           The Ground Lease may not be amended,
modified, canceled or terminated without the prior written consent of the
lender and that any such action without such consent is not binding on the
lender, its successors or assigns.


 


(3)           The Ground Lease has an original term (or an
original term plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and is enforceable, by the lender) that
extends not less than 20 years beyond the stated maturity of the related
Mortgage Loan.


 


(4)           Based on the title insurance policy
referenced in (e) above, the Ground Leasehold interest is not subject to any
liens or encumbrances superior to, or of equal priority with, the Mortgage,
subject to Permitted Encumbrances and liens that encumber the Ground Lessor’s
fee interest.


 


(5)           The Ground Lease is assignable to the lender
and its assigns without the consent of the lessor thereunder.


 


13





















 


(6)           The Ground Lease is in full force and effect
and no default has occurred under the Ground Lease and there is no existing
condition which, but for the passage of time or the giving of notice, would
result in a material default under the terms of the Ground Lease.


 


(7)           The Ground Lessor is required to give notice
of any default by the related lessee to the lender.


 


(8)           The lender is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under the Ground Lease through legal proceedings, or
to take other action so long as the lender is proceeding diligently) to cure
any default under the Ground Lease, which is curable after the receipt of
notice of any default, before the Ground Lessor thereunder may terminate the
Ground Lease.


 


(9)           Either (i) the Ground Lease does not impose
restrictions on subletting or (ii) the Ground Lessor has consented to the
existing Ground Lease with respect to the related Mortgaged Property securing
the related Mortgage Loan.  The Ground
Lessor is not permitted to disturb the possession, interest or quiet enjoyment
of any subtenant of the lessee in the relevant portion of the Mortgaged
Property subject to the Ground Lease for any reason, or in any material manner,
which would adversely affect the security provided by the related Mortgage.


 


(10)         Any related insurance proceeds or
condemnation award (other than in respect of a total or substantially total
loss or taking) is required to be applied either to the repair or restoration
of all or part of the related Mortgaged Property, with the lender or a trustee
appointed by it having the right to hold and disburse such proceeds as repair
or restoration progresses, or to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest, except that
in the case of condemnation awards, the Ground Lessor may be entitled to a
portion of such award.


 


(11)         Any related insurance proceeds, or
condemnation award in respect of a total or substantially total loss or taking
of the related Mortgaged Property is required to be applied first to the
payment of the outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except as provided by applicable law or in cases
where a different allocation would not be viewed as commercially unreasonable
by any institutional investor, taking into account the relative duration of the
Ground Lease and the related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance of such
Mortgage Loan).  Until the principal
balance and accrued interest are paid in full, neither the lessee nor the
Ground Lessor under the Ground Lease has an option to terminate or modify the
Ground Lease without the


 


14





















 


prior
written consent of the lender as a result of any casualty or partial
condemnation, except to provide for an abatement of the rent.


 


(12)         Provided that the lender cures any defaults
which are susceptible to being cured, the Ground Lessor has agreed to enter
into a new lease upon termination of the Ground Lease for any reason, including
rejection of the Ground Lease in a bankruptcy proceeding.


 


(tt)           With respect to Mortgage Loans originated
after the Series Closing Date and with respect to any Qualified Substitute
Mortgage Loans purchased or substituted by Purchaser from a third party, each
Mortgage Loan and the related Mortgaged Property securing the Mortgage Loan
shall be originated pursuant to the Underwriting Guidelines (subject to any
material modifications approved by the Insurer) Seller Form Documents or in
accordance with a Borrower’s, Tenant’s or a different form of document that is
otherwise approved by an Seller on a case by case basis in a manner that
provides for Seller to receive the substantive benefits intended to be realized
under the material terms of Seller Form Documents.


 


(uu)         None of the Mortgage Loans are construction
loans.


 


2.             Mortgaged Properties and
Leases.  With respect to each Property (as identified
in Schedule II-A), Seller hereby represents and warrants, as of the date herein
below specified or, if no such date is specified, as of the Closing Date,
except as set forth on Schedule II hereto, that:


 


(a)           Seller owns such Property and Lease free and
clear of any and all liens and other encumbrances except for the Permitted
Exceptions.


 


(b)           Seller has full right and authority to sell,
contribute, assign, mortgage, pledge and transfer its interest in such Lease
and Property or, to the extent that consent of a Tenant is required, such
consent has been obtained.


 


(c)           The information set forth in the Lease
Schedule (attached as Exhibit D) with respect to such Property and Lease was
true and correct in all material respects as of the Closing Date.


 


(d)           Such Lease for the related Property was not
delinquent (giving effect to any applicable grace period) in the payment of any
monthly Lease payments (other than percentage rents that are being recalculated
with respect to certain Leases set forth in the Lease Schedule) as of the
Closing Date, and has not been during the time owned by Seller, 30 days or more
delinquent in respect of any monthly Lease payment required thereunder.


 


(e)           Lessor estoppels containing protection
provisions have been obtained from the owner of the fee simple interest in each
Property in which Seller has only a ground leasehold interest.


 


15





















 


(f)            With respect to the related Lease for each
Property, (i) there exists no material default, breach or event of acceleration
under the Lease or any other agreement, document or instrument executed in
connection with such Lease, (ii) to Seller’s knowledge, there exists no event
(other than payments due but not yet delinquent) that, with the passage of time
or with notice and the expiration of any grace or cure period, would constitute
such a material default, breach or event of acceleration under the Lease and
(iii) there exists no material default, breach or event of acceleration under
the Lease which Seller, as landlord, or its servicer is not pursuing to cure,
resolve or otherwise pursue remedies under the Lease with diligence.


 


(g)           Neither such Lease nor any other agreement,
document or instrument executed in connection with such Lease has been waived,
modified, altered, satisfied, cancelled or subordinated in any material
respect, and such Lease has not been terminated or cancelled, nor has any
instrument been executed that would effect any such waiver, modification,
alteration, satisfaction, termination, cancellation, subordination or release,
except in each case by a written instrument that is part of the related Lease
File.


 


(h)           The Property is covered by an American Land
Title Association (or an equivalent form thereof as adopted in the applicable
jurisdiction) mortgagee’s title insurance policy (the “Title Policy”), or
during the 6 months after the date of transfer thereof, a Title Policy in an
amount at least equal to the Appraised Value of such Property, subject only to
the Permitted Exceptions (to the extent stated therein); such title insurance
policy is in full force and effect and names the Collateral Agent as a
mortgagee of record; as of the Closing Date, all premiums for the title policy
have been paid; and as of the Closing Date, no material claims have been made
thereunder.  The Title Policy has been
issued by a company licensed to issue such policies in the state in which such
Property is located.


 


(i)            The Lease is not a Defaulted Asset or a
Delinquent Asset as of the Closing Date.


 


(j)            At commencement of the Lease the Tenant had
all material licenses, permits and material agreements, including without
limitation franchise agreements and certificates of occupancy, necessary for
the operation and continuance of the Tenant’s business on the Property; and, to
the best of Seller’s knowledge, (1) the Tenant is not in default of its
obligations under any such applicable license, permit or agreement and (2) each
such license, permit and agreement is in full force and effect.


 


(k)           The Tenant is not the subject of any
bankruptcy or insolvency proceeding.


 


(l)            There are no pending actions, suits or
proceedings by or before any court or governmental authority against or
affecting, such Lease, such Property or, to Seller’s knowledge, the Tenant,
that is reasonably likely to be determined adversely and, if determined
adversely, would materially and adversely effect the value of the Lease or use
or value of the Property, or the ability of the Tenant to pay any amounts due
under the Lease.


 


16





















 


(m)          All of the material improvements built or to
be built on the Property that were included for the purpose of determining the
appraised value of the Property lay within the boundaries of such Property and
there are no encroachments into the building setback restriction lines of such
Property in any way that would materially and adversely affect the value of the
Property or the ability of the Tenant to pay any amounts due under the Lease
(unless affirmatively covered in the applicable Title Policy described in (h)
above.)


 


(n)           There are no delinquent or unpaid taxes or
assessments, or other outstanding charges affecting any Property that are or
may become a lien of priority equal to or higher than the lien of the Mortgage
in favor of the Indenture Trustee (or Collateral Agent on its behalf) other
than such amounts that do not materially and adversely affect the value of the
Lease or use or value of the Property against the fee interest of Seller in the
Property.  For purposes of this representation
and warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest and/or penalties would be payable
thereon.


 


(o)           There is no valid dispute, claim, offset,
defense or counterclaim to Seller’s rights in the Lease.


 


(p)           There is no proceeding pending for the total
or partial condemnation of the Property and the Property is free and clear of
any damage that would materially and adversely affect the value or use of such
Property.


 


(q)           The Lease or other agreement, document or
instrument executed in connection with such Lease is the legal, valid and
binding and enforceable obligation of the Tenant (subject to certain creditors’
rights exceptions and other exceptions of general application) and is in full
force and effect.


 


(r)            Except for Leases that permit the Tenant to
self-insure, each Lease requires the Tenant to maintain (or make payment to the
lessor to cover such premiums) in respect of the Property insurance against
loss by hazards (excluding flood and earthquake) and comprehensive general
liability insurance in amounts generally required by Seller, and in some cases
(which may be only required at an Seller’s request), business interruption or
rental value insurance for at least 6 months; all of such insurance required
under the Lease for such Property (including, without limitation, if provided
under a master insurance policy of Seller or an affiliate thereof) is in full
force and effect and names Seller or their respective successors and assigns as
an additional insured; all premiums for any insurance policies (including,
without limitation, any applicable master insurance policy of Seller or an
affiliate thereof) required to be paid have been paid; all of such insurance
policies require prior notice to the lessor under the Lease of termination or
cancellation, and no such notices have been received; in the event that the
Tenant fails to maintain the insurance required thereunder, the Lease (or other
applicable document) authorizes the lessor under the Lease to maintain such
insurance at the Tenant’s cost and expense and to seek reimbursement therefor
from such Tenant. If such Property is located in a “Special Flood Hazard Zone”
so designated by the Secretary of the United States Department of Housing and
Urban Development, such Property is required under the


 


17





















 


Lease to be covered by
insurance against loss by flood in amounts generally required by Seller which
insurance is in full force and effect.  With
respect to each Lease that permits the related Tenant to self-insure, such
Lease requires one of the following in order for such Tenant to self-insure:
(i) the related Tenant to not be in default, and such Tenant or any
related Lease Guarantor must either be a company listed on the NYSE with an
NAIC rating of “2” or better; (ii) the related Tenant to not be in default
and maintain a minimum tangible net worth of at least $50,000,000;
(iii) the related Tenant to maintain limits of not less than $2,000,000;
or (iv) that the related Tenant may self-insure up to $100,000 single
limits per occurrence for each $10,000,000 of such Tenant’s net worth as
reflected on such Tenant’s most recent audited balance sheet.


 


(s)           The Property was subject to one or more environmental
assessments or reports (or an update of a previously conducted assessment or
report) and Seller has no knowledge of any material and adverse environmental
conditions or circumstance affecting such Property that was not disclosed in
the related assessment or report(s). 
There are no material and adverse environmental conditions or
circumstances affecting the Property other than, with respect to any adverse
environmental condition described in such report, those conditions for which
remediation has been completed and, thereafter, to the extent that such report
or remediation program so recommended, (i) a program of annual integrity
testing and/or monitoring was recommended and implemented in connection with
the Property or an adjacent or neighboring property; (ii) an operations and
maintenance plan or periodic monitoring of such mortgaged Property or nearby
properties was recommended and implemented or (iii) a follow-up plan was
otherwise required to be taken under CERCLA (as defined below) or under
regulations established thereunder from time to time by the Environmental
Protection Agency and such plan has been implemented in the case of (i), (ii)
and (iii) above, Seller determined in accordance with the Underwriting
Guidelines that adequate funding was available for such program or plan, as
applicable.  Seller has not taken any
action with respect to the Property that would subject Seller, or its
successors and assigns in respect of the Property, to any liability under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended (“CERCLA”) or any other applicable federal, state or local
environmental law, and Seller has not received any actual notice of a material
violation of CERCLA or any applicable Environmental Law with respect to the
Property that was not disclosed in the related report.  The Lease requires the Tenant to comply with
all applicable federal, state and local laws, including Environmental Laws.  The Lease specifically requires compliance
with any Environmental Laws.  For
purposes of this clause (s), “Environmental Law” means any present federal,
state and local laws, statutes, ordinances, rules, regulations, standards,
policies, consent decrees, consent or settlement agreements and other
governmental directives or requirements, as well as common law, that apply to
the Property and relate to Hazardous Substances, including, without limitation,
CERCLA and RCRA and “Hazardous Substances” means petroleum and petroleum
products and compounds containing them, including gasoline, diesel fuel and
oil; explosives; flammable materials; radioactive materials; polychlorinated
biphenyls (PCBs) and compounds containing them; lead and lead-based paint;
asbestos or asbestos-containing materials in any form that is or could become
friable; underground or above-ground storage tanks, whether empty or containing
any substance; any substance the presence of which on the Property


 


18





















 


is regulated by or prohibited
by any federal, state or local authority; any substance that requires special
handling; 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.


 


(t)            Such Property is free and clear of any
mechanics’ and materialmen’s liens or liens in the nature thereof that would
materially and adversely affect the value, use or operation of such Property
except those that are insured against by the Title Policy referred to in (h)
above.


 


(u)           The Lease, together with applicable state
law, contains customary and enforceable provisions such as to render the rights
and remedies of the lessors thereof adequate for the practical realization
against the related Property of the principal benefits of the security intended
to be provided thereby.


 


(v)           With respect to each Property:


 


(1)           such Property is not subject to any lease
other than a sublease and/or the related Lease; no person has any possessory
interest in, or right to occupy, the leased property except under and pursuant
to the Lease or such sublease; the Tenant (or sub-tenant) is in occupancy of
the Property and is paying rent pursuant to the Lease; and, in the case of any
sublease, the Tenant remains primarily liable on the Lease;


 


(2)           except with respect to those Properties with
respect to which the Tenant can terminate the related Lease during the last 42
months of the lease term in the event of a casualty and any insurance proceeds
related thereto are payable to the Tenant, the obligations of the Tenant,
including, but not limited to, the obligation to pay fixed and additional rent,
are not affected by reason of: any damage to or destruction of any portion of
the leased property; any taking of the leased property or any part thereof by
condemnation or otherwise; or any prohibition, limitation, interruption,
cessation, restriction, prevention or interference of the Tenant’s use,
occupancy or enjoyment of the leased property, except the Tenant’s rights to
abate or terminate its obligation to pay fixed or additional rent are coupled
with insurance proceeds or condemnation awards going to the lessor; or the
right to abate as a result of a landlord’s default;


 


(3)           Seller as lessor under the Lease does not
have any monetary obligations under the Lease that have not been satisfied;


 


(4)           the Tenant has not been released, in whole or
in part, from its obligations under the terms of the Lease;


 


(5)           all obligations related to the initial
construction of the improvements on the Property have been satisfied and except
for the


 


19





















 


obligation
to rebuild such improvements after a casualty (which obligation is limited by
available insurance proceeds), Seller does not have any nonmonetary obligations
under the Lease and has made no representation or warranty under the Lease, the
breach of which would result in the abatement of rent, a right of setoff or
termination of the Lease;


 


(6)           there is no right of rescission, set-off,
abatement (except in the case of casualty or condemnation), diminution, defense
or counterclaim to the Lease, nor does 
the operation of any of the terms of the Lease, or the exercise of any
rights thereunder, render the Lease unenforceable, in whole or in part, or
subject to any right of rescission, set-off, abatement, diminution, defense or
counterclaim, and no such right has been asserted;


 


(7)           the Tenant has agreed to indemnify the lessor
from any claims of any nature relating to the Lease and the related leased
property other than the lessor’s gross negligence or willful misconduct,
including, without limitation, arising as a result of violations of
environmental and hazardous waste laws resulting from the Tenant’s operation of
the property;


 


(8)           any obligation or liability imposed on the
lessor by any easement or reciprocal easement agreement is also an obligation
of the Tenant under the Lease;


 


(9)           the Tenant is required to make rental
payments as directed by the lessor and its successors and assigns; and


 


(10)         except in certain cases where the Tenant may
exercise a right of first refusal, the Lease is freely assignable by the lessor
and its successors and assigns to any person without the consent of the Tenant,
and in the event the lessor’s interest is so assigned, the Tenant is obligated
to recognize the assignee as lessor under such Lease, whether under the Lease
or by operation of law.


 


(w)          In connection with Leases with a guaranty:


 


(1)           such guaranty, on its face, is unconditional,
irrevocable and absolute, and is a guaranty of payment and not merely of
collection and contains no conditions to such payment, other than a notice and
right to cure; and the guaranty provides that it is the guaranty of both the
performance and payment of the financial obligations of the Tenant under the
Lease and does not provide for offset, counterclaim or defense; and


 


(2)           such guaranty is binding on the successors
and assigns of the guarantor and inures to the benefit of the lessor’s
successors and assigns and cannot be released or amended without the lessor’s
consent or unless a predetermined performance threshold is achieved.


 


20





















 


(x)            No fraudulent acts were committed by Seller
during the origination process with respect to the Lease related to such
Property.


 


(y)           In connection with the acquisition of each
Property, Seller inspected or caused to be inspected the Property by
inspection, appraisal or otherwise as required in Seller’s Underwriting
Guidelines then in effect.


 


(z)            The origination, servicing and collection of
monthly Lease payments on such Lease is in all respects legal, proper and
prudent and in accordance with customary industry standards.


 


(aa)         To the extent required under applicable law,
Seller was authorized to transact and do business in the jurisdiction in which
such Property is located, except where such failure to qualify would not result
in a material adverse effect on the enforceability of the related Lease.


 


(bb)         The Property has adequate rights of access to
public rights-of-way and is served by utilities, including, without limitation,
adequate water, sewer, electricity, gas, telephone, sanitary sewer, and storm
drain facilities. All public utilities necessary to the continued use and
enjoyment of the Property as presently used and enjoyed are located in the
public right-of-way abutting the Property or are the subject of access
easements for the benefit of the Property, and all such utilities are connected
so as to serve the Property without passing over other property or are the
subject of access easements for the benefit of the Property. All roads
necessary for the full use of the Property for its current purpose have been
completed and dedicated to public use and accepted by all governmental
authorities or are the subject of access easements for the benefit of the
Property.


 


(cc)         The Lease File contains a survey with respect
to such Property, which survey was deemed sufficient to delete the standard
title survey exception (to the extent the deletion of such exception is
available in the related state).


 


(dd)         No adverse selection was employed in
selecting such Lease.


 


(ee)         With respect to any of the Properties which are
the subject of a Master Lease (noting that not all properties subject to such
Master Lease are included in the Properties), the lessor under the Master Lease
has assigned its interest in the Leases of the Properties to Seller and Seller
and the other lessors under the Master Leases have entered into inter-lessor
agreements by which the rents and the rights to enforce the provisions of the
Master Leases pertinent to any of the Properties have also been assigned to
Seller.


 


(ff)           Such Property is (i) free of any damage that
would materially and adversely affect the use or value of such Property, (ii)
in good repair and condition so as not to materially and adversely affect the
use or value of such Property; and all building systems contained in such Property
are in good working order so as not to materially and adversely affect the use
or value of such Property.


 


21





















 


(gg)         All security deposits collected in connection
with such Property are being held in accordance with all applicable laws.


 


To
Seller’s actual knowledge, based upon zoning letters, zoning report, the Title
Policy, historical use and/or other due diligence customarily performed by
Seller in connection with the acquisition of the Property, the improvements
located on or forming part of such Property comply in all material respects
with applicable zoning laws and ordinances (except to the extent that they may
constitute legal non-conforming uses), including the existence of a certificate
of occupancy.


 


3.             Equipment Loans.  With
respect to each Equipment Loan (as identified in Schedule III-A), Seller hereby
represents and warrants, as of the date herein below specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule III
hereto, that:


 


(a)           Immediately prior to the transfer and assignment of the Equipment Loan
to Seller, Purchaser had good and insurable fee title to, and was the sole
owner and holder of, the Equipment Loan, free and clear of any and all liens,
encumbrances and other interests on, in or to the Equipment Loan.  Such transfer and assignment from Seller to
Purchaser of the Equipment Loan by collateral assignment and by individual
allonges of the Equipment Loan Notes and Assignments of the Security Agreements
in blank validly assigns all of Seller’s right, title and ownership of the
Equipment Loan to Purchaser (and, with respect to the Security Agreement, to
the Collateral Agent) free and clear of any pledge, lien, encumbrance or
security interest.


 


(b)           Seller has full right and authority to sell,
contribute, assign and transfer the Equipment Loan to Purchaser.  The entire agreement with Seller (whether
originated by Seller or a different originator) is contained in the Loan
Documents and there are no warranties, agreements or options regarding such
Equipment Loan or the related secured equipment not set forth therein.  Other than the Loan Documents, there are no
agreements between any predecessor in interest in the Equipment Loan and the
Borrower.


 


(c)           The information pertaining to the Equipment
Loan set forth in the Equipment Loan Schedule attached to the Purchase and Sale
Agreements (the “Equipment Loan Schedule”) was true and correct in all material
respects as of the related Transfer Date. 
The Equipment Loan was originated or acquired in accordance with, and
fully complies with, the Underwriting Guidelines in all material respects.  The related Loan File contains all of the
documents and instruments required to be contained therein.


 


(d)           [Reserved].


 


(e)           [Reserved].


 


(f)            Seller has not waived any material default,
breach, violation or event of acceleration existing under the Security
Agreement or Equipment Loan Note.


 


22





















 


(g)           The Borrower has not waived any material
default, breach, violation or event of acceleration by the Tenant existing
under the Lease.


 


(h)           There is no valid offset, defense or
counterclaim to the payment or performance obligations of the Equipment Loan.


 


(i)            The secured equipment securing any Equipment
Loan is free and clear of any damage that would materially and adversely affect
its value as security for the Equipment Loan.


 


(j)            The Equipment Loan complied with all
applicable usury laws in effect at its date of origination.


 


(k)           The proceeds of the Equipment Loan have been
fully disbursed and there is no requirement for future advances
thereunder.  All costs, fees and expenses
incurred in making, closing and recording the Equipment Loan, including, but
not limited to, Security Agreement recording taxes and recording and filing
fees relating to the origination of such Equipment Loan, have been paid.  Any and all requirements as to completion of
any on-site or off-site improvement by the Borrower and as to disbursements of
any escrow funds therefor that were to have been complied with have been
complied with.


 


(l)            The Borrower under the related Equipment Loan
Note, Security Agreement and all other Loan Documents had the power, authority
and legal capacity to enter into, execute and deliver the same, and, as
applicable, such Equipment Loan Note, Security Agreement and Loan Documents
have been duly authorized, properly executed and delivered by the parties
thereto, and each is the legal, valid and binding obligation of the maker
thereof (subject to any non recourse provisions contained in any of the
foregoing agreements and any applicable state anti deficiency legislation),
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors generally and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).


 


(m)          [Reserved].


 


(n)           [Reserved].


 


(o)           The Equipment Loan is not
cross-collateralized with any Equipment Loan that is not included in the
Collateral Pool.


 


(p)           The terms of the Security Agreement,
Equipment Loan Note, and other Loan Documents have not been impaired, waived,
altered, modified, satisfied, canceled or subordinated in any material respect,
except by written instruments that are part of the Loan File, recorded or filed
in the applicable public office if necessary to maintain the priority of the
lien of the related Security Agreement, delivered to Purchaser or its designee.


 


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(q)           There are no delinquent taxes or other
similar outstanding lienable charges affecting the secured equipment which are
or may become a lien of priority equal to or higher than the lien of the
Security Agreement.  For purposes of this
representation and warranty, personal property taxes and assessments shall not
be considered unpaid until the date on which interest and/or penalties would be
payable thereon.


 


(r)            [Reserved].


 


(s)           Each Equipment Loan is a whole loan and not a
participation interest.


 


(t)            [Reserved].


 


(u)           All escrow deposits relating to the Equipment
Loan that are required to be deposited with the related Seller or its agent
have been so deposited.


 


(v)           [Reserved].


 


(w)          [Reserved].


 


(x)            (i) There exists no material default, breach
or event of acceleration under the Equipment Loan or any of the Loan Documents
or the Lease, (ii) there exists no event (other than payments due but not yet
delinquent) that, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute such a material default, breach or
event of acceleration (iii) no payment on any Equipment Loan is, or has
previously been during any time owned by Seller or Purchaser, 30 or more days
delinquent and (iv) no payment on any Lease is or has previously been 30 or
more days delinquent; provided, however, that this representation and warranty
does not cover any default, breach or event of acceleration that specifically
pertains to any matter otherwise covered or addressed by any other
representation and warranty made by Seller with respect to the Equipment Loans.


 


(y)           [Reserved].


 


(z)            The Equipment Loan contains no equity
participation by or shared appreciation rights in the lender or beneficiary
under the Security Agreement, and does not provide for any contingent or
additional interest in the form of participation in the cash flow of the
secured equipment securing the Equipment Loan, or for negative amortization.


 


(aa)         No holder of the Equipment Loan has advanced
funds or induced, solicited or knowingly received any advance of funds from a
party other than the owner of the secured equipment securing the Equipment
Loan, directly or indirectly, for the payment of any amount required by the
Equipment Loan (other than amounts paid by the Tenant as specifically provided
under the related Lease).


 


(bb)         To Seller’s knowledge, based on due diligence
customarily performed in the origination or acquisition of comparable Equipment
Loans by Seller, as


 


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of the date of origination or
acquisition of the Equipment Loans, the related Borrowers, were in compliance
with all applicable laws relating to the ownership and operation of the
Equipment securing the Equipment Loan as they were then operated and were in
possession of all material licenses, permits and authorizations required by
applicable laws for the ownership and operation of such Equipment as they were operated.  With respect to Equipment that are operated
as franchised properties, and except with respect to Equipment Loans for which
the related Tenant is the franchisor, the Tenant of such secured equipment has
entered into a legal, valid, and binding franchise agreement and such lessee
operator has represented in the applicable lease documents that, as of the date
of origination or acquisition of the Equipment Loan, there were no defaults
under the franchise agreement by such Tenant.


 


(cc)         The origination, servicing and collection
practices Sellers used with respect to the Equipment Loan since Seller’s
origination or acquisition thereof, have complied with applicable law in all
material respects and are consistent and in accordance with the terms of the related
Loan Documents and in accordance with the applicable servicing standard and
customary industry standards.


 


(dd)         The Security Agreement or Equipment Loan
Note, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (l) above) such as
to render the rights and remedies of the holders thereof adequate for the
practical realization against the secured equipment securing the Equipment Loan
of the principal benefits of the security intended to be provided thereby,
including the right of foreclosure under the laws of the state in which the
secured equipment securing the Equipment Loan is located governing foreclosures
of Security Agreements and deeds of trust under power of sale.


 


(ee)         [Reserved].


 


(ff)           There are no actions, suits, legal,
arbitration or administrative proceedings or investigations by or before any
court or governmental authority or, to the best of Seller’s knowledge, pending
against or affecting the Borrower, the secured equipment securing the Equipment
Loan that, if determined adversely to such Borrower, secured equipment securing
the Equipment Loan, would materially and adversely affect the value of the
secured equipment securing the Equipment Loan or the ability of the Borrower to
pay principal, interest or any other amounts due under the Equipment Loan or
the Lease, as applicable.


 


(gg)         [Reserved].


 


(hh)         [Reserved].


 


(ii)           The Security Agreement does not permit the
secured equipment securing the Equipment Loan to be encumbered by any lien
junior to or of equal priority with the lien of the Security Agreement
(excluding any lien relating to another Equipment Loan that is cross
collateralized with the Equipment Loan) without the prior written consent of
the holder thereof.


 


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(jj)           The Borrower is not a debtor in any state or
federal bankruptcy or insolvency proceeding.


 


(kk)         As of the date of origination or acquisition
of each Equipment Loan by Seller, each Borrower which is not a natural person
was duly organized and validly existing under the laws of the state of its
jurisdiction.


 


(ll)           [Reserved].


 


(mm)       [Reserved].


 


(nn)         [Reserved].


 


(oo)         Any secured equipment is located within one
of the 50 United States or the District of Columbia.


 


(pp)         [Reserved].


 


(qq)         Seller does not have knowledge of any
circumstance or condition with respect to such Equipment Loan, the secured
equipment securing the Equipment Loan, the Lease or the Borrower’s or the
Tenant’s credit standing that could reasonably be expected to cause Purchaser
to regard such Equipment Loan as unacceptable security, cause such Equipment
Loan or Lease to become delinquent or have a material adverse effect on the
value or marketability of such Equipment Loan.


 


(rr)           [Reserved].


 


(ss)         [Reserved].


 


(tt)           With respect to Equipment Loans originated
after the Series Closing Date and with respect to any Qualified Substitute
Mortgage Loans purchased or substituted by Purchaser from a third party, each
Equipment Loan and the related secured equipment securing the Equipment Loan
shall be originated pursuant to the Underwriting Guidelines (subject to any
material modifications approved by the Insurer) Seller Form Documents or in
accordance with a Borrower’s, Tenant’s or a different form of document that is
otherwise approved by an Seller on a case by case basis in a manner that
provides for Seller to receive the substantive benefits intended to be realized
under the material terms of Seller Form Documents.


 


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EXHIBIT G


 


FORM OF PURCHASE AND SALE AGREEMENT


 


27





















 


EXHIBIT H


 


FORM OF LOAN PURCHASE AGREEMENT


 


28