Exhibit 10.11


 


Dated as of June 14, 2005


 


 


N-STAR REL CDO IV LTD.,

as Issuer


 


N-STAR REL CDO IV CORP., 

as Co-Issuer


 


NS ADVISORS, LLC.


As Advancing Agent


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION

as Trustee


 






 


INDENTURE


 










 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  PRELIMINARY STATEMENT

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  GRANTING CLAUSES

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I Definitions and
  Interpretation

  	
   

  	
  3

  
	
  1.1.

  	
  Definitions

  	
   

  	
  3

  
	
  1.2.

  	
  Assumptions as to Collateral Interests, Fees, Etc.

  	
   

  	
  46

  
	
  1.3.

  	
  Rules of Construction

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II The Indenture Issued
  Notes

  	
   

  	
  48

  
	
  2.1.

  	
  Forms Generally

  	
   

  	
  48

  
	
  2.2.

  	
  Authorized Amount; Applicable Periodic Interest Rate;
  Stated Maturity Date; Denominations

  	
   

  	
  49

  
	
  2.3.

  	
  Execution, Authentication, Delivery and Dating

  	
   

  	
  50

  
	
  2.4.

  	
  Registration, Transfer and Exchange of Indenture Issued
  Notes

  	
   

  	
  51

  
	
  2.5.

  	
  Mutilated, Defaced, Destroyed, Lost or Stolen Indenture
  Issued Notes

  	
   

  	
  60

  
	
  2.6.

  	
  Payment of Principal and Interest; Rights Preserved

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III Conditions
  Precedent

  	
   

  	
  66

  
	
  3.1.

  	
  General Provisions

  	
   

  	
  66

  
	
  3.2.

  	
  Security for the Indenture Issued Notes

  	
   

  	
  68

  
	
  3.3.

  	
  Custodianship; Transfer of Collateral Interests and
  Eligible Investments

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV Satisfaction and
  Discharge

  	
   

  	
  73

  
	
  4.1.

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  73

  
	
  4.2.

  	
  Application of Trust Money

  	
   

  	
  74

  
	
  4.3.

  	
  Repayment of Funds Held by Note Paying Agent

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V Events of Default;
  Remedies

  	
   

  	
  74

  
	
  5.1.

  	
  Events of Default

  	
   

  	
  74

  
	
  5.2.

  	
  Acceleration of Maturity; Rescission and Annulment

  	
   

  	
  76

  
	
  5.3.

  	
  Collection of Indebtedness and Suits for Enforcement by
  Trustee

  	
   

  	
  77

  
	
  5.4.

  	
  Remedies

  	
   

  	
  79

  
	
  5.5.

  	
  Preservation of Collateral

  	
   

  	
  81

  
	
  5.6.

  	
  Trustee May Enforce Claims Without Possession

  	
   

  	
  83

  
	
  5.7.

  	
  Application of Funds Collected

  	
   

  	
  83

  
	
  5.8.

  	
  Limitation on Suits

  	
   

  	
  83

  
	
  5.9.

  	
  Unconditional Rights of Rated Noteholders to Receive
  Principal and Interest

  	
   

  	
  84

  
	
  5.10.

  	
  Restoration of Rights and Remedies

  	
   

  	
  84

  
	
  5.11.

  	
  Rights and Remedies Cumulative

  	
   

  	
  84

  
	
  5.12.

  	
  Delay or Omission Not Waiver

  	
   

  	
  84

  
	
  5.13.

  	
  Control by Controlling Class

  	
   

  	
  84

  
	
  5.14.

  	
  Waiver of Past Defaults

  	
   

  	
  85

  
	
  5.15.

  	
  Undertaking for Costs

  	
   

  	
  85

  
	
  5.16.

  	
  Waiver of Stay or Extension Laws

  	
   

  	
  86

  
	
  5.17.

  	
  Sale of Collateral

  	
   

  	
  86

  
	
  5.18.

  	
  Action on the Rated Notes

  	
   

  	
  87

  
					



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
  Section

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI The Trustee

  	
   

  	
  87

  
	
  6.1.

  	
  Certain Duties and Responsibilities

  	
   

  	
  87

  
	
  6.2.

  	
  Notice of Default

  	
   

  	
  89

  
	
  6.3.

  	
  Certain Rights of Trustee

  	
   

  	
  89

  
	
  6.4.

  	
  Authenticating Agents

  	
   

  	
  91

  
	
  6.5.

  	
  Not Responsible for Recitals or Issuance of Rated Notes

  	
   

  	
  91

  
	
  6.6.

  	
  May Hold Rated Notes

  	
   

  	
  92

  
	
  6.7.

  	
  Funds Held in Trust

  	
   

  	
  92

  
	
  6.8.

  	
  Compensation and Reimbursement

  	
   

  	
  92

  
	
  6.9.

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  93

  
	
  6.10.

  	
  Resignation and Removal; Appointment of Successor

  	
   

  	
  94

  
	
  6.11.

  	
  Acceptance of Appointment by Successor

  	
   

  	
  95

  
	
  6.12.

  	
  Merger, Conversion, Consolidation or Succession to Business
  of Trustee

  	
   

  	
  95

  
	
  6.13.

  	
  Co-Trustees

  	
   

  	
  96

  
	
  6.14.

  	
  Certain Duties Related to Delayed Payment of Proceeds;
  Other Notices

  	
   

  	
  97

  
	
  6.15.

  	
  Representations and Warranties of the Bank

  	
   

  	
  97

  
	
  6.16.

  	
  Exchange Offers, Proposed Amendments etc.

  	
   

  	
  98

  
	
  6.17.

  	
  Fiduciary for Rated Noteholders Only; Agent For Other
  Secured Parties

  	
   

  	
  98

  
	
  6.18.

  	
  Withholding

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII Covenants

  	
   

  	
  99

  
	
  7.1.

  	
  Payment of Principal and Interest

  	
   

  	
  99

  
	
  7.2.

  	
  Maintenance of Office or Agency

  	
   

  	
  99

  
	
  7.3.

  	
  Funds for Rated Note Payments to be Held in Trust

  	
   

  	
  100

  
	
  7.4.

  	
  Existence of Co-Issuers

  	
   

  	
  102

  
	
  7.5.

  	
  Protection of Collateral

  	
   

  	
  102

  
	
  7.6.

  	
  Opinions as to Collateral

  	
   

  	
  104

  
	
  7.7.

  	
  Performance of Obligations

  	
   

  	
  104

  
	
  7.8.

  	
  Negative Covenants

  	
   

  	
  105

  
	
  7.9.

  	
  Statement as to Compliance

  	
   

  	
  106

  
	
  7.10.

  	
  Co-Issuers May Consolidate, Etc., Only on Certain
  Terms

  	
   

  	
  107

  
	
  7.11.

  	
  Successor Substituted

  	
   

  	
  110

  
	
  7.12.

  	
  No Other Business

  	
   

  	
  110

  
	
  7.13.

  	
  Change or Withdrawal of Rating

  	
   

  	
  110

  
	
  7.14.

  	
  Reporting

  	
   

  	
  111

  
	
  7.15.

  	
  Rated Note Calculation Agent

  	
   

  	
  111

  
	
  7.16.

  	
  Listing

  	
   

  	
  112

  
	
  7.17.

  	
  Amendment of Certain Documents

  	
   

  	
  112

  
	
  7.18.

  	
  Purchase of Collateral; Information Regarding Collateral;
  Rating Confirmation

  	
   

  	
  112

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII Supplemental
  Indentures

  	
   

  	
  113

  
	
  8.1.

  	
  Supplemental Indentures Without Consent of Rated
  Noteholders

  	
   

  	
  113

  
	
  8.2.

  	
  Supplemental Indentures with Consent of Rated Noteholders

  	
   

  	
  116

  
	
  8.3.

  	
  Execution of Supplemental Indentures

  	
   

  	
  118

  
	
  8.4.

  	
  Effect of Supplemental Indentures

  	
   

  	
  118

  
	
  8.5.

  	
  Reference in Indenture Issued Notes to Supplemental
  Indentures

  	
   

  	
  119

  
					



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
  Section

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX Redemption of Rated
  Notes

  	
   

  	
  119

  
	
  9.1.

  	
  Redemption of Rated Notes

  	
   

  	
  119

  
	
  9.2.

  	
  Redemption Procedures; Auction

  	
   

  	
  119

  
	
  9.3.

  	
  Record Date; Notice to Trustee of Redemption

  	
   

  	
  121

  
	
  9.4.

  	
  Notice of Redemption

  	
   

  	
  121

  
	
  9.5.

  	
  Notice of Withdrawal

  	
   

  	
  122

  
	
  9.6.

  	
  Rated Notes Payable on Redemption Date

  	
   

  	
  122

  
	
  9.7.

  	
  Special Amortization

  	
   

  	
  123

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X Accounts, Accountings
  and Releases

  	
   

  	
  123

  
	
  10.1.

  	
  Collection of Funds

  	
   

  	
  123

  
	
  10.2.

  	
  General Provisions Applicable to Accounts

  	
   

  	
  124

  
	
  10.3.

  	
  Collateral Account

  	
   

  	
  125

  
	
  10.4.

  	
  Uninvested Proceeds Account

  	
   

  	
  125

  
	
  10.5.

  	
  Collection Account

  	
   

  	
  125

  
	
  10.6.

  	
  Expense Reserve Account

  	
   

  	
  126

  
	
  10.7.

  	
  Interest Reserve Account

  	
   

  	
  127

  
	
  10.8.

  	
  Earn-Out Asset Account

  	
   

  	
  127

  
	
  10.9.

  	
  Payment Account

  	
   

  	
  127

  
	
  10.10.

  	
  Reports by Trustee

  	
   

  	
  128

  
	
  10.11.

  	
  Accountings

  	
   

  	
  129

  
	
  10.12.

  	
  Release of Securities

  	
   

  	
  133

  
	
  10.13.

  	
  Reports by Independent Accountants

  	
   

  	
  134

  
	
  10.14.

  	
  Reports to Rating Agencies

  	
   

  	
  135

  
	
  10.15.

  	
  Tax Matters

  	
   

  	
  135

  
	
  10.16.

  	
  Tax Information

  	
   

  	
  136

  
	
  10.17.

  	
  Interest Advances

  	
   

  	
  136

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI Application of
  Monies

  	
   

  	
  139

  
	
  11.1.

  	
  Disbursements of Funds from Payment Account; Priority of
  Payments

  	
   

  	
  139

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII Purchase and Sale
  of Collateral Interests

  	
   

  	
  151

  
	
  12.1.

  	
  Sale of Collateral Interests

  	
   

  	
  151

  
	
  12.2.

  	
  Portfolio Characteristics

  	
   

  	
  152

  
	
  12.3.

  	
  Conditions Applicable to all Transactions Involving Sale or
  Grant

  	
   

  	
  156

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII Secured Parties’
  Relations

  	
   

  	
  157

  
	
  13.1.

  	
  Subordination

  	
   

  	
  157

  
	
  13.2.

  	
  Standard of Conduct

  	
   

  	
  159

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV Miscellaneous

  	
   

  	
  160

  
	
  14.1.

  	
  Form of Documents Delivered to Trustee

  	
   

  	
  160

  
	
  14.2.

  	
  Acts of Rated Noteholders

  	
   

  	
  160

  
	
  14.3.

  	
  Notices, Etc., to Trustee, the Co-Issuers and the Rating
  Agencies

  	
   

  	
  161

  
	
  14.4.

  	
  Notices and Reports to Rated Noteholders; Waiver

  	
   

  	
  163

  
	
  14.5.

  	
  Effect of Headings and Table of Contents

  	
   

  	
  163

  
	
  14.6.

  	
  Successors and Assigns

  	
   

  	
  163

  
	
  14.7.

  	
  Severability

  	
   

  	
  164

  
	
  14.8.

  	
  Benefits of Indenture

  	
   

  	
  164

  
					



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
  Section

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  14.9.

  	
  Governing Law

  	
   

  	
  164

  
	
  14.10.

  	
  Submission to Jurisdiction

  	
   

  	
  164

  
	
  14.11.

  	
  Counterparts

  	
   

  	
  164

  
	
  14.12.

  	
  Waiver of Jury Trial

  	
   

  	
  164

  
	
  14.13.

  	
  Judgment Currency

  	
   

  	
  165

  
	
  14.14.

  	
  Confidential Treatment of Documents

  	
   

  	
  165

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV Assignment of
  Agreements, Etc.

  	
   

  	
  165

  
	
  15.1.

  	
  Assignment

  	
   

  	
  165

  
	
  15.2.

  	
  No Impairment

  	
   

  	
  166

  
	
  15.3.

  	
  Termination, Etc.

  	
   

  	
  166

  
	
  15.4.

  	
  Issuer Agreements, Etc

  	
   

  	
  166

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XVI Hedge Agreements

  	
   

  	
  166

  
	
  16.1.

  	
  Hedge Agreement

  	
   

  	
  166

  
					



 


Schedules


 


	
  Schedule A

  	
   

  	
  Schedule of
  Collateral Interests as of the Closing Date

  	
   

  
	
  Schedule B

  	
   

  	
  LIBOR Formula

  	
   

  
	
  Schedule C

  	
   

  	
  Moody’s Recovery
  Rate Matrix

  	
   

  
	
  Schedule D

  	
   

  	
  S&P’s
  Recovery Rate Matrix

  	
   

  
	
  Schedule E

  	
   

  	
  Auction
  Procedures

  	
   

  
	
  Schedule F

  	
   

  	
  S&P’s
  Notching Criteria

  	
   

  
	
  Schedule G

  	
   

  	
  S&P’s Types
  of Asset-Backed Securities ineligible for Notching

  	
   

  
	
  Schedule H

  	
   

  	
  S&P’s
  Industry Classification Groups

  	
   

  
	
  Schedule I

  	
   

  	
  S&P’s Shadow
  Rating Grid

  	
   

  
	
  Schedule J-1

  	
   

  	
  Form of
  S&P’s Representations, Warranties and Covenants for Commercial Mortgage
  Loans, Subordinate Mortgage Loan Interests And Mezzanine Loans

  	
   

  
	
  Schedule J-2

  	
   

  	
  Form of
  S&P’s Representations, Warranties and Covenants for Credit Lease Loans
  and Tenant Lease Loan Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A-1

  	
   

  	
  Form of
  Regulation S Global Note

  	
   

  
	
  Exhibit A-2

  	
   

  	
  Form of
  Rule 144A Global Note

  	
   

  
	
  Exhibit B

  	
   

  	
  Form of
  Certificated Note

  	
   

  
	
  Exhibit C-1

  	
   

  	
  Form of
  Rule 144A Transfer Certificate

  	
   

  
	
  Exhibit C-2

  	
   

  	
  Form of
  Regulation S Transfer Certificate

  	
   

  
	
  Exhibit C-3

  	
   

  	
  Form of
  Certificated Note Transfer Certificate

  	
   

  
	
  Exhibit C-4

  	
   

  	
  Form of
  ERISA Restriction Certificate

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of
  Funding Certificate

  	
   

  
	
  Exhibit E-1

  	
   

  	
  Form of Opinion
  of Thacher Proffitt & Wood LLP

  	
   

  
	
  Exhibit E-2

  	
   

  	
  Form of
  Opinion of Walkers

  	
   

  
	
  Exhibit F

  	
   

  	
  Form of
  Opinion of Kennedy Covington Lobdell & Hickman, L.L.P.

  	
   

  
	
  Exhibit G

  	
   

  	
  Form of
  Opinion of Thacher Proffitt & Wood LLP

  	
   

  
	
  Exhibit H

  	
   

  	
  Rated
  Noteholder’s Certificate

  	
   

  



 


iv

















 


THIS INDENTURE dated as of June 14,
2005 among:


 


N-STAR REL CDO IV LTD., an
exempted company incorporated and existing under the law of the Cayman Islands;


 


N-STAR REL CDO IV CORP., a
corporation organized and existing under the law of the State of Delaware;


 


NS ADVISORS, LLC a limited
liability company organized and existing under the law of the State of
Delaware; and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, organized under the law of the United States,
as trustee.


 


PRELIMINARY STATEMENT


 


The Co-Issuers (in the case of the Indenture Issued
Notes other than the Class F Notes) and the Issuer (in the case of the Class F
Notes) are duly authorized to execute and deliver this Indenture to provide for
the issuance of the Indenture Issued Notes as provided in this Indenture.  All covenants and agreements made by the
Co-Issuers herein are for the benefit and security of the Secured Parties.  The Co-Issuers are entering into this Indenture,
and the Trustee is accepting the trusts created hereby, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.


 


All things necessary to make this Indenture a valid
agreement of the Co-Issuers in accordance with its terms have been done.


 


GRANTING
CLAUSES


 


The Issuer hereby Grants to the Trustee, for the
benefit and security of the Secured Parties, all of its right, title and
interest in, to and under, in each case, whether now owned or existing, or hereafter
acquired or arising, the following property (other than the Excepted Property) (a) the
Collateral Interests listed on Schedule A, the Collateral Interests acquired
after the Closing Date and any Equity Interests which, in each case, are
delivered to the Trustee (directly or through a Securities Intermediary) after
the Closing Date pursuant to the terms hereof and all payments thereon or with
respect thereto, (b) the Collection Account (including each Sub-Account
established therein), the Interest Reserve Account, the Payment Account, the
Expense Reserve Account, the Collateral Account, the Uninvested Proceeds
Account, the Earn-Out Asset Account, all amounts credited to such accounts, and
Eligible Investments purchased with funds credited to such accounts and all
income from the investment of funds therein, (c) the rights of the Issuer
under each of the Transaction Documents to which the Issuer is a party and all
payments to the Issuer thereunder or with respect thereto, (d) all Cash or
other property delivered to the Trustee (directly or through a Securities
Intermediary) and (e) all proceeds, whether voluntary or involuntary, of
and to any of the property of the Issuer described in the preceding
clauses (collectively, the Collateral).  Such Grants are made to the Trustee to hold
in trust, to secure the Indenture Issued Notes equally and ratably without
prejudice, priority or distinction between any such Indenture Issued Note and
any other such Indenture Issued Note by reason of difference in time of issuance
or otherwise, except as expressly provided in this Indenture, and to secure (i) the
payment of all amounts due on the Indenture Issued Notes and under any Hedge
Agreement and the Collateral Management Agreement in accordance with their
respective terms, (ii) the payment of all other sums payable under this
Indenture and (iii) compliance with the provisions of this Indenture, any
Hedge Agreement and the Collateral Management Agreement, all as provided in
this Indenture (collectively, the Secured  Obligations).


 

















 


Except to the extent otherwise provided in this
Indenture, the Issuer does hereby constitute and irrevocably appoint the
Trustee the true and lawful attorney of the Issuer, with full power (in the
name of the Issuer or otherwise), to exercise all rights of the Issuer with
respect to the Collateral held for the benefit and security of the Secured
Parties and to ask, require, demand, receive, settle, compromise, compound and
give acquittance for any and all moneys and claims for moneys due and to become
due under or arising out of any of the Collateral held for the benefit and
security of the Secured Parties, to endorse any checks or other instruments or
orders in connection therewith and to file any claims or take any action or
institute any proceedings which the Trustee may deem to be necessary or
advisable in the premises.  The power of
attorney granted pursuant to this Indenture and all authority hereby conferred
are granted and conferred solely to protect the Trustee’s interest in the
Collateral held for the benefit and security of the Secured Parties and shall
not impose any duty upon the Trustee to exercise any power.  This power of attorney shall be irrevocable
as one coupled with an interest prior to the payment in full of all the
obligations secured hereby.


 


Except to the extent otherwise provided in this
Indenture, this Indenture shall constitute a security agreement under the law
of the State of New York.  Upon the
occurrence of any Event of Default and in addition to any other rights available
under this Indenture or any other instruments included in the Collateral held
for the benefit and security of the Secured Parties or otherwise available at
law or in equity, the Trustee shall have all rights and remedies of a secured
party on default under the law of the State of New York and other applicable
law to enforce the assignments and security interests contained herein and, in
addition, shall have the right, subject to compliance with any mandatory
requirements of applicable law, to sell or apply any rights and other interests
assigned or pledged hereby in accordance with the terms hereof at public or
private sale.


 


It is expressly agreed that anything therein contained
to the contrary notwithstanding, the Issuer shall remain liable under any instruments
included in the Collateral to perform all the obligations assumed by it
thereunder, all in accordance with and pursuant to the terms and provisions
thereof, and except as otherwise expressly provided herein, the Trustee shall
not have any obligations or liabilities under such instruments by reason of or
arising out of this Indenture, nor shall the Trustee be required or obligated
in any manner to perform or fulfill any obligations of the Issuer under or
pursuant to such instruments or to make any payment, to make any inquiry as to
the nature or sufficiency of any payment received by it, to present or file any
claim, or to take any action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time
or times.


 


The designation of the Trustee in any transfer
document or record is intended and shall be deemed, first, to refer to the
Trustee as custodian on behalf of the Issuer and second, to refer to the
Trustee as secured party on behalf of the Secured Parties, provided that
the Grant made by the Issuer to the Trustee pursuant to the granting clauses
hereof shall apply to any Collateral bearing such designation.


 


The Trustee acknowledges such Grants, accepts the
trust hereunder in accordance with the provisions hereof, and agrees to perform
the duties herein in accordance with the required standard of care set forth
herein such that the interests of the Secured Parties may be protected.


 


Each of the Secured Parties hereby agrees and acknowledges
that it shall not have any claim on the funds and property from time to time
deposited in or credited to the Income Note Distribution Account and the
proceeds thereof.


 


2

















 


ARTICLE I



DEFINITIONS AND INTERPRETATION


 


1.1.      DEFINITIONS


 


Except as otherwise specified herein or as the context
may otherwise require, the following terms have the respective meanings set
forth below for all purposes of this Indenture. 
Whenever any reference is made to an amount the determination of which
is governed by Section 1.2, the provisions of Section 1.2 shall be
applicable to such determination or calculation, whether or not reference is
specifically made to Section 1.2, unless some other method of calculation
or determination is expressly specified in the particular provision.  In addition, terms defined in Article 9
of the UCC and used but not capitalized herein have the meanings assigned
thereto in Article 9 of the UCC.


 


Account means
any of  the Collection Account (including
each Collateral Sub-Account established therein), the Collateral Account, the
Uninvested Proceeds Account, the Payment Account, the Interest Reserve Account
and the Expense Reserve Account (including each Collateral Sub-Account
established therein).


 


Account Control Agreement means
that certain Account Control Agreement, dated as of the Closing Date, as the
same may be amended or supplemented from time to time, among the Issuer, the
Trustee and the Custodian.


 


Accountants’ Report means
a report of a firm of Independent certified public accountants of recognized
national reputation appointed by the Issuer (or the Collateral Manager on its
behalf) on the Closing Date pursuant to Section 10.13(a), which may
be the firm of Independent accountants that reviews or performs procedures with
respect to the financial reports prepared by the Issuer.


 


Act has the
meanings specified in Section 14.2.


 


Administrative Expenses
means amounts (including any applicable indemnities) due from, or accrued for,
the account of the Co-Issuers with respect to any Payment Date to (i) the
Trustee for Trustee Expenses and the Trustee Interest Advance Fee and the
Underlying Trustee for Underlying Trust Expenses; (ii) the PAA Issued Note
Paying Agent pursuant to the Paying Agency Agreement; (iii) the Collateral
Administrator pursuant to the Collateral Administration Agreement; (iv) the
independent accountants, agents and counsel of the Co-Issuers for fees and
expenses (including, without limitation, tax reports); (v) the Rating Agencies
for fees and expenses in connection with any Class of Notes rated by each
such Rating Agency (including, without limitation, expenses for credit
estimates and ongoing surveillance of the ratings of the Notes); (vi) the
Administrator pursuant to the Corporate Services Agreement; (vii) the
Collateral Manager and its counsel for fees, expenses and indemnities under the
Transaction Documents to the extent set forth therein (including, without
limitation, amounts payable under the Collateral Management Agreement but
excluding the Collateral Management Fee); (viii) any other Person in
respect of any governmental fee, charge or tax (including all filing,
registration and annual return fees payable to the Cayman Islands’ government
and registered office fees); (ix) any servicer of any Collateral Interest
owned directly by the Issuer or to Wachovia pursuant to the Servicing Agreement
(to the extent payment of such amounts is not otherwise provided for in the
Servicing Agreement); (x) to the Advancing Agent for the Advancing Agent
Fee; and (xi) any other Person in respect of any other fees or expenses
permitted under the Indenture and the documents delivered pursuant to or in
connection with this Indenture, the Paying Agency Agreement, the Collateral
Management Agreement and the Notes; 


 


3

















 


provided that Administrative
Expenses may not include any amounts due or accrued with respect to the actions
taken on, or prior to, the Closing Date.


 


Administrator means
Walkers SPV Limited and any successor thereto appointed under the Corporate
Services Agreement.


 


Advancing
Agent means NS Advisors, LLC and any successor or
successors thereto.


 


Advancing
Agent Fee means, a per annum fee payable to the Advancing
Agent on each Payment Date in accordance with the Priority of Payments equal to
0.00125% of the outstanding principal amount of the Class A Notes and the Class B
Notes immediately prior to such Payment Date.


 


Affected
Party has the meaning given to such term in the standard
form 1992 ISDA Master Agreement (Multicurrency-Cross Border).


 


Affiliate
means any person, directly or indirectly through one or more intermediaries,
controlling, controlled by or under common control with the person; provided that (i) with respect to the Issuer, “Affiliate”
shall be deemed not to include Walkers SPV Limited or any entity which Walkers
SPV Limited controls and (ii) control of a person shall mean the power,
direct or indirect, (a) to vote more than 50% of the securities having
ordinary voting power for the election of directors of such person or (b) to
direct or cause the direction of the management and policies of such person
whether by contract or otherwise.


 


Agent Members means
members of, or participants in, the Clearing Agencies.


 


Aggregate Fees and Expenses
means, on any Payment Date, the sum of (i) the Trustee Fee with respect to
such Payment Date and any unpaid Trustee Fee accrued with respect to a previous
Payment Date, (ii) the PAA Issued Note Paying Agent Fee with respect to
such Payment Date and any unpaid PAA Issued Note Paying Agent Fee accrued with
respect to a previous Payment Date (iii) the Senior Collateral Management
Fee and all expenses of the Collateral Manager payable by the Issuer pursuant
to the Collateral Management Agreement with respect to such Payment Date and
any unpaid Senior Collateral Management Fee and unpaid expenses of the
Collateral Manager accrued with respect to a previous Payment Date, (iv) the
Trustee Expenses and other expenses (including other Administrative Expenses)
of the Co-Issuer (including the fees to be paid to the Irish Stock Exchange), (v) taxes
payable by the Co-Issuers, if any, (vi) the trustee fees with respect to
the Underlying Trust and (vii) all other expenses of the Co-Issuers
(including, without limitation, Administrative Expenses) payable on such
Payment Date pursuant to Sections 11.1(a)(1) and 11.1(b)(1) (in
each case to the extent not included in clauses (i) through (vi) above).


 


Aggregate Outstanding Amount means,
when used with respect to any of the Rated Notes at any time, the aggregate
principal amount of such Rated Notes Outstanding at such time.  Except as otherwise provided herein, (i) the
Aggregate Outstanding Amount of any Class C Notes at any time shall
include the Class C Cumulative Applicable Periodic Interest Shortfall
Amount with respect to such Class C Notes at such time, (ii) the
Aggregate Outstanding Amount of any Class D Notes at any time shall
include the Class D Cumulative Applicable Periodic Interest Shortfall
Amount with respect to such Class  D Notes at such time, (iii) the
Aggregate Outstanding Amount of any Class E Notes at any time shall
include the Class E Cumulative Applicable Periodic Interest Shortfall
Amount with respect to such Class E Notes at such time, (iv) the
Aggregate Outstanding Amount of any Class F Notes at any time shall
include the Class F Cumulative Applicable Periodic Interest Shortfall
Amount with respect to such Class F Notes at such time and (v) the
Aggregate Outstanding Amount of any Class G Notes at any time shall
include the 


 


4

















 


Class G Cumulative Applicable Periodic Interest
Shortfall Amount with respect to such Class G Notes at such time.


 


Applicable Periodic Interest Rate
means, for any Interest Period, (i) with respect to
the Class A Notes, the applicable Class A Note Interest Rate, (ii) with
respect to the Class B Notes, the applicable Class B Note Interest
Rate, (iii) with respect to the Class C Notes, the applicable Class C
Note Interest Rate, (iv) with respect to the Class D Notes, the
applicable Class D Note Interest Rate, (v) with respect to the Class E
Notes, the applicable Class E Note Interest Rate, (vi) with respect
to the Class F Notes, the applicable Class F Note Interest Rate and (vii) with
respect to the Class G Notes, the applicable Class G Note Interest
Rate.


 


Applicable Recovery Rate means,
with respect to any Collateral Interest on any Measurement Date, the lesser of
the Moody’s Recovery Rate and the S&P’s Recovery Rate applicable to such
Collateral Interest on such date.


 


Articles means
the Amended and Restated Memorandum and Articles of Association of the Issuer,
filed under the Companies Law (2004 Revision) of the Cayman Islands, as
modified and supplemented and in effect from time to time.


 


Asset-Backed Securities
are debt securities that entitle the holders thereof to receive payments that
depend primarily on the cash flow from (i) a specified pool of financial
assets, either fixed or revolving, that by their terms convert into cash within
a finite time period, together with rights or other assets designed to assure
the servicing or timely distribution of proceeds to holders of such securities
(including, for the avoidance of doubt, leases) or (ii) real estate
mortgages, either fixed or revolving, together with rights or other assets
designed to assure the servicing or timely distribution of proceeds to the
holders of such securities.


 


Asset Transfer Agreement means
that certain Asset Transfer Agreement, dated as of June 14, 2005, as the
same may be amended or supplemented from time to time, among the Seller, the
Depositor and Northstar Realty Finance
Corp.


 


Assumed Reinvestment Rate means,
with respect to any Account or fund securing the Indenture Issued Notes, the
greater of (i) LIBOR minus  0.5% and (ii) zero.


 


Auction has
the meaning specified in Section 9.2.


 


Auction Call Redemption has
the meaning specified in Section 9.1(c).


 


Auction Date has
the meaning specified in Section 9.2; provided that,
for the purposes of Section 5.5, “Auction Date”  means
the date upon which an Auction of the Collateral Interests is conducted in
connection with an Event of Default.


 


Auction Procedures has
the meaning specified in Section 9.2.


 


Auction Purchase Agreement has
the meaning specified in Schedule E.


 


Authenticating Agent means,
with respect to the Indenture Issued Notes or any Class of the Indenture
Issued Notes, the Person designated by the Trustee, if any, to authenticate
such Indenture Issued Notes on behalf of the Trustee pursuant to Section 6.4.


 


5














 


Authorized Officer means
(i) with respect to the Issuer, any Officer of the Issuer who is
authorized to act for the Issuer in matters relating to, and binding upon, the
Issuer, (ii) with respect to the Co-Issuer, any Officer who is authorized
to act for the Co-Issuer in matters relating to, and binding upon, the
Co-Issuer, (iii) with respect to the Collateral Manager, any officer of
the Collateral Manager who is authorized to act for the Collateral Manager in
matters relating to, and binding upon, the Collateral Manager, (iv) with
respect to the Trustee or any other bank or trust company acting as trustee of
an express trust or as custodian, a Trust Officer, (v) with respect to the
PAA Issued Note Paying Agent, any officer who is authorized to act for the PAA
Issued Note Paying Agent in matters relating to, and binding upon, the PAA
Issued Note Paying Agent and (vi) with respect to the Advancing Agent, any
Officer of the Advancing Agent who is authorized to act for the Advancing Agent
in matters relating to, and binding upon, the Advancing Agent.  Each party may receive and accept a
certification of the authority of any other party as conclusive evidence of the
authority of any person to act, and such certification may be considered as in
full force and effect until receipt by such other party of written notice to
the contrary.


 


Available Funds
means, with respect to any Payment Date, the amount of any positive balance of
Cash or Eligible Investments in the Collection Account as of the Calculation
Date relating to such Payment Date and, with respect to any other date, such
amount as of that date.


 


Average Life
means, on any Calculation Date with respect to any Collateral Interest, the
quotient obtained by the Collateral Manager by dividing (i) the sum of the
products of (a) the number of years (rounded to the nearest one tenth
thereof) from such Calculation Date to the respective dates of each
successive distribution of principal of such Collateral Interest (assuming that
(1) no Collateral Interests default or are sold and (2) any optional
redemption of the Collateral Interests occurs in accordance with their
respective terms) and (b) the respective amounts of principal of such
scheduled distributions by (ii) the sum of all successive scheduled
distributions of principal on such Collateral Interest.


 


Balance means
at any time, with respect to Cash or Eligible Investments in any Account at
such time, the aggregate of the (i) current balance of Cash, demand
deposits, time deposits, certificates of deposit and federal funds; (ii) principal
amount of interest-bearing corporate and government securities, money market
accounts and repurchase obligations; and (iii) purchase price (but not
greater than the face amount) of non-interest-bearing government and corporate
securities and commercial paper.


 


Bank means
Wells Fargo Bank, National Association, a national banking association
organized under the laws of the United States, in its individual capacity and
not as Trustee.


 


Bankruptcy Code means
the U.S. Bankruptcy Code, Title 11 of the United States Code, as amended or
where the context requires, the applicable insolvency provisions of the laws of
the Cayman Islands.


 


Beneficial Owner means,
with respect to any Global Note, each Person that appears on the records of a
Clearing Agency (other than each such Clearing Agency to the extent that it is
an accountholder with the other Clearing Agency for the purpose of operating
the “bridge” between them) as entitled to a particular amount of Indenture
Issued Notes by reason of an interest in a Global Note (for all purposes other
than with respect to the payment of principal of and interest on the Indenture
Issued Notes, the right to which will be vested, as against the Issuer and the
Trustee, solely in the Person in whose name the Global Note is registered in
the Note Register (in the case of the Rated Notes) or the PAA Issued Note
Register (in the case of the Class Notes or the Income Notes)); provided that the Trustee and the PAA Issued Note Paying
Agent may conclusively rely upon the certificate of a Clearing Agency as to the
identity of such Persons holding an interest in a Global Note.


 


Benefit Plan Investor means
(i) an “employee benefit plan” (as defined in Section 3(3) of
ERISA), whether or not subject to Title I of ERISA, including without
limitation governmental plans, foreign plans 


 


6

















 


and church plans, (ii) a “plan” (as defined in Section 4975(e)(1) of
the Code), whether or not subject to Section 4975 of the Code, including,
without limitation, individual retirement accounts and Keogh plans or (iii) an
entity whose underlying assets include plan assets by reason of such an
employee benefit plan’s or plan’s investment in such entity, including, without
limitation, as applicable, an insurance company general account.


 


Bill of Sale means
that certain Bill of Sale, dated June 14th, 2005, as the same may be
amended or supplemented from time to time, between the Depositor and the
Issuer.


 


Board of Directors means,
with respect to the Issuer, the directors of the Issuer duly appointed in
accordance with the Articles, and, with respect to the Co-Issuer, the directors
of the Co-Issuer duly appointed by the shareholders of the Co-Issuer.


 


Board Resolution means,
with respect to the Issuer or the Co-Issuer, a resolution of the Board of
Directors of the Issuer or the Co-Issuer, as the case may be.


 


Business Day means
any day that is not a Saturday, Sunday or other day on which commercial banking
institutions in New York, New York, Minneapolis, Minnesota, Columbia, Maryland
or any other cities in which the Corporate Trust Office of the Trustee or the
Advancing Agent is located are authorized or obligated by law or executive
order to be closed; provided that,
if any action is required of the Irish Paying Agent, solely for purposes of
determining when such action of the Irish Paying Agent is required, days on
which commercial banking institutions in Dublin, Ireland are authorized or
obligated by law or executive order to be closed will also be considered in
determining whether such day is a “Business Day;” provided, further that if any
action is required of the Issuer (or of the Administrator on its behalf),
solely for purposes of determining when such action of the Issuer is required,
days on which commercial banking institutions in the Cayman Islands are
authorized or obligated by law or executive order to be closed will also be
considered in determining whether such day is a “Business Day.”


 


Buy/Sell Interest
means a pari passu Participation Interest for which one of the participants has
exercised its right to purchase its corresponding participant’s interest, or
sell its interest to such corresponding participant for the same price, in
accordance with the related Underlying Instrument.


 


Calculation Date
means, with respect to any Payment Date, the last day of the related Due
Period.


 


Call Period
has the meaning specified in Section 9.1(a) hereof.


 


Cash means
such funds denominated with currency of the United States as at the time shall
be legal tender for payment of all public and private debts, including funds
credited to a deposit account or a Securities Account.


 


Cash Release Conditions has
the meaning specified in Section 12.1(c).


 


Certificate of Authentication has
the meaning specified in Section 2.3(f).


 


Certificated Class A-E Note
has the meaning specified in Section 2.1(c).


 


Certificated Class F Note has
the meaning specified in Section 2.1(d).


 


Certificated Class F Note
Transfer Certificate has the meaning specified in Section 2.4(c)(1)


 


7

















 


Certificated Income Notes
means Income Notes issued in the form of physical certificates in definitive,
fully registered form.


 


Certificated Note
means any Rated note or Income Note issued in the form of physical certificates
in certificated, fully registered form.


 


Certificated Security has
the meaning specified in Section 8-102(a)(4) of the UCC.


 


Class means
any class of the Notes, consisting of the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes, the Class E Notes,
the Class F Notes, the Class G Notes and the Income Notes.


 


Class A Note Break-Even
Default Rate means the maximum percentage of defaults
that the portfolio of Collateral Interests can sustain, as determined by
S&P by application of the S&P CDO Monitor, after giving effect to
S&P’s assumptions on recoveries, defaults and timing and to the Priority of
Payments such that sufficient funds will remain for the payment of principal of
the Class A Notes in full by their Stated Maturity Dates and the timely
payment of interest on such Class A Notes.


 


Class A Note Default
Differential means, with respect to any Calculation Date,
the rate obtained by subtracting the Class A Note Scenario Default Rate
from the Class A Note Break-Even Default Rate.


 


Class A Note Interest Rate means
LIBOR plus 0.35%.


 


Class A Note Scenario
Default Rate means an estimate of the cumulative default
rate for the portfolio of Collateral Interests consistent with S&P’s rating
of the Class A Notes on the Closing Date, determined by S&P by
application of the S&P CDO Monitor.


 


Class A Notes means
the U.S.$185,000,000 aggregate principal amount of Class A Floating Rate
Notes Due 2040.


 


Class B Note Break-Even
Default Rate means the maximum percentage of defaults that
the portfolio of Collateral Interests can sustain, as determined by S&P by
application of the S&P CDO Monitor, after giving effect to S&P’s
assumptions on recoveries, defaults and timing and to the Priority of Payments
such that sufficient funds will remain for the payment of principal of the Class B
Notes in full by their Stated Maturity Dates and the timely payment of interest
on such Class B Notes.


 


Class B Note Default
Differential means, with respect to any Calculation Date,
the rate obtained by subtracting the Class B Note Scenario Default Rate
from the Class B Note Break-Even Default Rate.


 


Class B Note Interest Rate means
LIBOR plus 0.45%.


 


Class B Note Scenario
Default Rate means an estimate of the cumulative default
rate for the portfolio of Collateral Interests consistent with S&P’s rating
of the Class B Notes on the Closing Date, determined by S&P by
application of the S&P CDO Monitor.


 


Class B Notes means
the U.S.$32,600,000 aggregate principal amount of Class B Floating Rate
Notes Due 2040.


 


Class C Applicable Periodic
Interest Shortfall Amount means, with respect to any
Interest Period, the amount of unpaid interest for such Interest Period that
will be added to the principal amount of the Class C Notes and paid
thereafter in accordance with the Priority of Payments in the event that any Class A
Notes or Class B Notes are Outstanding and funds are not available in
accordance with the 


 


8

















 


Priority of Payments on any Payment Date to pay the
full amount of Periodic Interest on the Class C Notes.


 


Class C Coverage Tests means
the Interest Coverage Test and the Principal Coverage Test applied with respect
to the Class C Notes.


 


Class C Cumulative
Applicable Periodic Interest Shortfall Amount means, with
respect to any date of determination, the sum of all Class C Applicable
Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding
such date of determination, less any amounts applied on all preceding Payment
Dates, pursuant to the Priority of Payments, to reduce such sum.


 


Class C Note Break-Even
Default Rate means the maximum percentage of defaults
that the portfolio of Collateral Interests can sustain, as determined by
S&P by application of the S&P CDO Monitor, after giving effect to
S&P’s assumptions on recoveries, defaults and timing and to the Priority of
Payments such that sufficient funds will remain for the payment of principal of
the Class C Notes in full by their Stated Maturity Dates and the timely
payment of interest on such Class C Notes.


 


Class C Note Default
Differential means, with respect to any Calculation Date,
the rate obtained by subtracting the Class C Note Scenario Default Rate
from the Class C Note Break-Even Default Rate.


 


Class C Note Interest Rate means
LIBOR plus 0.75%.


 


Class C Note Scenario
Default Rate means an estimate of the cumulative default
rate for the portfolio of Collateral Interests consistent with S&P’s rating
of the Class C Notes on the Closing Date, determined by S&P by
application of the S&P CDO Monitor.


 


Class C Notes means
the U.S.$31,800,000 aggregate principal amount of Class C Floating Rate
Notes Due 2040.


 


Class D Applicable Periodic
Interest Shortfall Amount means, with respect to any
Interest Period, the amount of unpaid interest for such Interest Period that
will be added to the principal amount of the Class D Notes and paid
thereafter in accordance with the Priority of Payments in the event that any Class A
Notes, Class B Notes or Class C Notes are Outstanding and funds are
not available in accordance with the Priority of Payments on any Payment Date
to pay the full amount of Periodic Interest on the Class D Notes.


 


Class D Coverage Tests means
the Interest Coverage Test and the Principal Coverage Test applied to the Class D
Notes.


 


Class D Cumulative
Applicable Periodic Interest Shortfall Amount means, with
respect to any date of determination, the sum of all Class D Applicable
Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding
such date of determination, less any amounts applied on all preceding Payment
Dates, pursuant to the Priority of Payments to reduce such sum.


 


Class D Note Break-Even
Default Rate means the maximum percentage of defaults
that the portfolio of Collateral Interests can sustain, as determined by
S&P by application of the S&P CDO Monitor, after giving effect to
S&P’s assumptions on recoveries, defaults and timing and to the Priority of
Payments such that sufficient funds will remain for the payment of principal of
the Class D Notes in full by their Stated Maturity Dates and the timely
payment of interest on such Class D Notes.


 


9

















 


Class D Note Default
Differential means, with respect to any Calculation Date,
the rate obtained by subtracting the Class D Note Scenario Default Rate
from the Class D Note Break-Even Default Rate.


 


Class D Note Interest Rate means
LIBOR plus 1.60%.


 


Class D Note Scenario
Default Rate means an estimate of the cumulative default
rate for the portfolio of Collateral Interests consistent with S&P’s rating
of the Class D Notes on the Closing Date, determined by S&P by
application of the S&P CDO Monitor.


 


Class D Notes means
the U.S.$38,600,000 aggregate principal amount of Class D Floating Rate
Notes Due 2040.


 


Class E Applicable Periodic
Interest Shortfall Amount means, with respect to any
Interest Period, the amount of unpaid interest for such Interest Period that
will be added to the principal amount of the Class E Notes and paid
thereafter in accordance with the Priority of Payments in the event that any Class A
Notes, Class B Notes, Class C Notes or Class D Notes are
Outstanding and funds are not available in accordance with the Priority of
Payments on any Payment Date to pay the full amount of Periodic Interest on the
Class E Notes.


 


Class E Coverage Tests means
the Interest Coverage Test and the Principal Coverage Test applied to the Class E
Notes.


 


Class E Cumulative
Applicable Periodic Interest Shortfall Amount means, with
respect to any date of determination, the sum of all Class E Applicable
Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding
such date of determination, less any amounts applied on all preceding Payment
Dates, pursuant to the Priority of Payments, to reduce such sum.


 


Class E Note Break-Even
Default Rate means the maximum percentage of defaults
that the portfolio of Collateral Interests can sustain, as determined by
S&P by application of the S&P CDO Monitor, after giving effect to
S&P’s assumptions on recoveries, defaults and timing and to the Priority of
Payments such that sufficient funds will remain for the payment of principal of
the Class E Notes in full by their Stated Maturity Dates and the timely
payment of interest on such Class E Notes.


 


Class E Note Default Differential
means, with respect to any Calculation Date, the rate obtained by subtracting
the Class E Note Scenario Default Rate from the Class E Note
Break-Even Default Rate.


 


Class E Note Interest Rate means
LIBOR plus 1.75%.


 


Class E Note Scenario
Default Rate means an estimate of the cumulative default
rate for the portfolio of Collateral Interests consistent with S&P’s rating
of the Class E Notes on the Closing Date, determined by S&P by
application of the S&P CDO Monitor.


 


Class E Notes means
the U.S.$12,000,000 aggregate principal amount of Class E Floating Rate
Notes Due 2040.


 


Class F Applicable Periodic
Interest Shortfall Amount means, with respect to any
Interest Period, the amount of unpaid interest for such Interest Period that
will be added to the principal amount of the Class F Notes and paid
thereafter in accordance with the Priority of Payments in the event that any Class A
Notes, Class B Notes, Class C Notes, Class D Notes or Class E
Notes are Outstanding and funds are not available in accordance with the
Priority of Payments on any Payment Date to pay the full amount of Periodic
Interest on the Class F Notes.


 


10

















 


Class F Coverage Tests means
the Interest Coverage Test and the Principal Coverage Test applied to the Class F
Notes.


 


Class F Cumulative
Applicable Periodic Interest Shortfall Amount means, with
respect to any date of determination, the sum of all Class F Applicable
Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding
such date of determination, less any amounts applied on all preceding Payment
Dates, pursuant to the Priority of Payments, to reduce such sum.


 


Class F Note Break-Even
Default Rate means the maximum percentage of defaults
that the portfolio of Collateral Interests can sustain, as determined by
S&P by application of the S&P CDO Monitor, after giving effect to
S&P’s assumptions on recoveries, defaults and timing and to the Priority of
Payments such that sufficient funds will remain for the payment of principal of
the Class F Notes in full by their Stated Maturity Dates and the timely
payment of interest on such Class F Notes.


 


Class F Note Default
Differential means, with respect to any Calculation Date,
the rate obtained by subtracting the Class F Note Scenario Default Rate
from the Class F Note Break-Even Default Rate.


 


Class F Note Interest Rate means
7.00%.


 


Class F Note Scenario
Default Rate means an estimate of the cumulative default
rate for the portfolio of Collateral Interests consistent with S&P’s rating
of the Class F Notes on the Closing Date, determined by S&P by
application of the S&P CDO Monitor.


 


Class F Notes means
the U.S.$20,000,000 aggregate principal amount of Class F Fixed Rate Notes
Due 2040.


 


Class G Applicable Periodic
Interest Shortfall Amount means, with respect to any
Interest Period, the amount of unpaid interest for such Interest Period that
will be added to the principal amount of the Class G Notes and paid
thereafter in accordance with the Priority of Payments in the event that any Class A
Notes, Class B Notes, Class C Notes, Class D Notes, Class E
Notes or Class F Notes are Outstanding and funds are not available in
accordance with the Priority of Payments on any Payment Date to pay the full
amount of Periodic Interest on the Class F Notes.


 


Class G Coverage Tests means
the Interest Coverage Test and the Principal Coverage Test applied to the Class G
Notes.


 


Class G Cumulative
Applicable Periodic Interest Shortfall Amount means, with
respect to any date of determination, the sum of all Class G Applicable
Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding
such date of determination, less any amounts applied on all preceding Payment
Dates, pursuant to the Priority of Payments, to reduce such sum.


 


Class G Note Break-Even
Default Rate means the maximum percentage of defaults
that the portfolio of Collateral Interests can sustain, as determined by
S&P by application of the S&P CDO Monitor, after giving effect to
S&P’s assumptions on recoveries, defaults and timing and to the Priority of
Payments such that sufficient funds will remain for the payment of principal of
the Class G Notes in full by their Stated Maturity Dates and the timely
payment of interest on such Class G Notes.


 


Class G Note Default Differential
means, with respect to any Calculation Date, the rate obtained by subtracting
the Class G Note Scenario Default Rate from the Class G Note
Break-Even Default Rate.


 


Class G Note Interest Rate means
7.00%.


 


11

















 


Class G Note Scenario
Default Rate means an estimate of the cumulative default
rate for the portfolio of Collateral Interests consistent with S&P’s rating
of the Class G Notes on the Closing Date, determined by S&P by
application of the S&P CDO Monitor.


 


Class G Notes means
the U.S.$20,000,000 aggregate principal amount of Class G Fixed Rate Notes
Due 2040.


 


Clearing Agency means
DTC, Euroclear or Clearstream.


 


Clearing Corporation has
the meaning specified in Section 8-102(a)(5) of the UCC.


 


Clearstream means
Clearstream Banking, société anonyme.


 


Closing Date means
June 14, 2005.


 


CMBS means
commercial mortgage-backed securities issued pursuant to a transaction in which
one or more classes of such securities have been (and are) rated “AAA” or its
equivalent by one or more of S&P, Moody’s or Fitch (unless Rating Agency
Confirmation is received), which securities are backed by obligations
(including certificates of participations in obligations) that are principally
secured by mortgages on real property or interests therein having a multifamily
or commercial use.


 


Code means
the Internal Revenue Code of 1986, as amended.


 


Co-Issuer means
N-Star REL CDO IV Corp., a corporation organized under the law of the State of
Delaware, unless a successor Person shall have become the Co-Issuer pursuant to
the applicable provisions of this Indenture, and thereafter Co-Issuer shall mean such successor
Person.


 


Co-Issuers means
the Issuer and Co-Issuer.


 


Collateral has
the meaning specified in the Granting Clauses.


 


Collateral Administration
Agreement means the Collateral Administration Agreement,
dated June 14, 2005, by and among the Issuer, the Collateral Manager and
the Collateral Administrator, as the same may be amended and modified from time
to time in accordance with its terms.


 


Collateral Administrator means
Wells Fargo Bank, National Association, solely in its capacity as Collateral
Administrator under the Collateral Administration Agreement, unless a successor
Person shall have become the Collateral Administrator pursuant to the
applicable provisions of Collateral Administration Agreement, in which case
Collateral Administrator shall mean such successor Person.


 


Collateral Interest means
an item of Collateral which satisfies the Eligibility Criteria specified in Section 12.2.


 


Collateral
Interest Collections means, with respect to any Due
Period and the related Payment Date, without duplication, the sum of (i) all
cash payments of interest with respect to any Collateral Interests and Eligible
Investments included in the Collateral ((A) including any Sale Proceeds of
a Collateral Interest sold at price equal to or greater than its Principal
Balance representing unpaid interest accrued thereon to the date of the sale
thereof to the extent not treated as Collateral Principal Collections at the
option of the Collateral Manager, but (B) excluding all funds received on
an Impaired Interest (including any unpaid interest) and any unpaid interest
accrued on a Deferred Interest PIK Bond or a Written Down Interest to the date
of sale) which are received during the related Due Period (excluding any
Purchased 


 


12

















 


Accrued Interest), (ii) all
payments on Eligible Investments purchased with Collateral Interest
Collections, (iii) payments received or scheduled to be received from a
Hedge Counterparty under any Hedge Agreement on the related Payment Date,
excluding any payments received from a Hedge Counterparty upon reduction of the
notional amount and any termination payments (provided
that so long as the Notes are Outstanding, any termination payments received
from a Hedge Counterparty will be used to enter into a substitute Hedge
Agreement to the extent required to maintain the then-current rating of the
Notes by each Rating Agency), (iv) all amendment and waiver fees, all late
payment fees and all other fees and commissions received during the related Due
Period (other than fees and commissions received in connection with the sale,
restructuring, workout or default of Collateral Interests or in connection with
Impaired Interests or Written Down Interests) (excluding any payments
representing exit fees, extension fees or prepayment premiums paid in
connection with Commercial Mortgage Loans), (v) the Principal Balance of
any Eligible Investments purchased with Collateral Interest Collections, (vi) all
interest accrued on the Closing Date on Collateral Interests included in the
Collateral, (vii) any amounts on deposit in the Interest Reserve Account, (viii) at
the option of the Collateral Manager, any amount on deposit in the Expense
Reserve Account in excess of U.S.$300,000, (ix) commitment fees on
unfunded amounts and other similar fees (in each case, net of applicable
withholding taxes) actually received by the Issuer during the related Due
Period in respect of any Earn-Out Assets, (x) any Uninvested Proceeds
remaining on deposit in the Uninvested Proceeds Account on the Effective Date,
if Rating Agency Confirmation to treat such Uninvested Proceeds as Collateral
Interest Collections has been obtained and (xi) all proceeds from the
foregoing; provided, however, that Collateral
Interest Collections shall not include the funds and other property (including,
without limitation, the paid-up share capital of the Issuer) with respect to the
Income Notes and the bank account in which such funds and the proceeds thereof
are held); provided, further,
that Collateral Interest Collections shall not include principal of any
Collateral Interest representing capitalized interest after the date of
purchase thereof by the Issuer.


 


Collateral Interest Principal
Balance means, prior to the Effective Date,
U.S.$400,000,000, and thereafter, the aggregate Principal Balance of the sum of
(i) Collateral Interests included in the Collateral (including any Collateral
Interests that have become Impaired Interests or Written Down Interests) and (ii) Eligible
Investments, in each case, purchased with the proceeds of the issuance of the
Notes or thereafter with Collateral Principal Collections.


 


Collateral Manager means
NS Advisors, LLC, a Delaware limited liability company, unless a successor
Person shall have become Collateral Manager pursuant to the applicable
provisions of the Collateral Management Agreement, in which case Collateral
Manager shall mean such successor Person.


 


Collateral Management Agreement means
the Collateral Management Agreement, dated as of the Closing Date, as the same
may be amended or supplemented from time to time, between the Issuer and the
Collateral Manager.


 


Collateral Management Fee means
the Senior Collateral Management Fee and the Subordinate Collateral Management
Fee.


 


Collateral Principal Collections
means, with respect to any Due Period and the related Payment Date, all amounts
received by the Issuer during such Due Period that do not constitute Collateral
Interest Collections; provided, however, that Collateral Principal Collections shall include
principal of any Collateral Interest representing capitalized interest after
the date of purchase thereof by the Issuer.


 


Collateral Principal Collections
Sub-Account has the meaning specified in Section 10.5(a)(1) hereof.


 


13

















 


Collateral Principal Payments
means, with respect to any Due Period and the related Payment Date, Collateral
Principal Collections other than Sale Proceeds and any amounts received in
respect of Eligible Investments.


 


Collateral Quality Tests
will be satisfied if, as of any Measurement Date, the Collateral Interests
comply, in the aggregate, with all of the requirements set forth below
(collectively, the “Collateral Quality Tests”):


 


(1)                      the
aggregate Principal Balance of all Collateral Interests that are CMBS (other
than Rake Bonds) does not exceed 15% of the Collateral Interest Principal
Balance;


 


(2)                      the
aggregate Principal Balance of all Collateral Interests that are Tenant Lease
Interests with an S&P Rating below “BBB” does not exceed 15% of the
Collateral Interest Principal Balance;


 


(3)                      the
aggregate Principal Balance of all Collateral Interests that are REIT Debt
Securities with an S&P Rating below “BBB” does not exceed 7.5% of the
Collateral Interest Principal Balance;


 


(4)                      the
aggregate Principal Balance of all Collateral Interests that are Real Estate
CDO Securities does not exceed 5% of the Collateral Interest Principal Balance;


 


(5)                      the
aggregate Principal Balance of all Collateral Interests that are Mezzanine
Loans does not exceed 50% of the Collateral Interest Principal Balance;


 


(6)                      the
Moody’s Maximum Weighted Average Rating Factor Test is satisfied;


 


(7)                      (i) the
Weighted Average Fixed Rate Coupon as of such date equals or exceeds 5.00% and (ii) the
Weighted Average Spread as of such date equals or exceeds 4.00%;


 


(8)                      the
Weighted Average Life Test is satisfied;


 


(9)                      The
maximum property concentration limits (by Aggregate Collateral Balance) for
Collateral Interests other than CMBS that are not Rake Bonds (and including
CMBS that are Rake Bonds) are as follows:


 


(i)                       not
more than 40% of the Collateral Interest Principal Balance may be related to
Mortgaged Properties which are each of office, retail and multifamily
properties;


 


(ii)                    not
more than 35% of the Collateral Interest Principal Balance may be related
to Mortgaged Properties which are each of industrial and hospitality
properties;


 


(iii)                 not more than 10% of the Collateral
Interest Principal Balance may be related to Mortgaged Properties which are
condominium conversion properties;


 


(iv)                not
more than 5% of the Collateral Interest Principal Balance may be related to
Mortgaged Properties which are healthcare properties;


 


(v)                   not
more than 5% of the Collateral Interest Principal Balance may be related to
Mortgaged Properties which are self-storage properties; and


 


(vi)                not
more than 5% of the Collateral Interest Principal Balance may be related to
Mortgaged Properties which in the aggregate are any property type other than
those specified in clauses (i) through (v) above;


 


(10)                            the
Aggregate Collateral Balance of all Collateral Interests (other than CMBS)
backed or otherwise invested in Mortgaged Properties located in any single U.S.
state does not exceed 25% of the 


 


14

















 


Collateral Interest
Principal Balance, except that up to 50% of the Collateral Interest Principal
Balance may relate to New York, up to 40% of the Collateral Interest Principal
Balance may relate to California, up to 35% of the Collateral Interest
Principal Balance may relate to Florida and up to 30% of the Collateral
Interest Principal Balance may relate to Washington D.C.;


 


 (11)                   the Herfindahl
Score of the Collateral Interests is at least 20;


 


(12)                      the
aggregate Principal Balance of all Collateral Interests that represent
obligations of any single obligor or group of affiliated obligors does not
exceed 8.5% of the Collateral Interest Principal Balance;


 


(13)                      the
aggregate Principal Balance of all Collateral Interests that consist of CMBS
issued in any single calendar year does not exceed 75% of the Collateral
Interest Principal Balance;


 


(14)                    the aggregate Principal Balance of
all Fixed Rate Collateral Interests does not exceed 20% of the Collateral
Interest Principal Balance; provided that
no more than 40% of the Collateral Interests shall consist of Fixed Rate
Collateral Interests if (i) the Issuer enters into corresponding Hedge
Agreements priced at a rate of 4.05% or (ii) Rating Agency Confirmation is
obtained with respect to an additional Fixed Rate Collateral Interest acquired
without a corresponding Hedge Agreement;


 


(15)                    the amount on deposit in the
Earn-Out Asset Account does not exceed 7.5% of the Collateral Interest
Principal Balance;


 


(16)                    the aggregate Principal Balance of
all Collateral Interests that provide for the payment of interest less
frequently than monthly does not exceed 10% of the Collateral Interest
Principal Balance;


 


(17                          the
aggregate Principal Balance of all Collateral Interests that consist of
Floating Rate Collateral Interests does not exceed 90% of the Collateral
Interest Principal Balance;


 


(18)                      the
S&P CDO Monitor Test is satisfied; and


 


(19)                      the
S&P Minimum Average Recovery Rate Test is satisfied.


 


Collateral Sub-Account
means any sub-account established within an Account.


 


Collection Account means
the Securities Account designated the “Collection Account” and established in
the name of the Trustee pursuant to Section 10.5, including the Collateral
Principal Collections Sub-Account.


 


Collections means,
with respect to any Payment Date, the sum of (i) the Collateral Interest
Collections collected during the applicable Due Period and (ii) the
Collateral Principal Collections collected during the applicable Due Period.


 


Commercial Mortgage Loans
means commercial mortgage loans whether such commercial mortgage loans are
Collateral Interests or underlie or comprise the other types of Collateral
Interests (as the context may require).


 


Commission means
the United States Securities and Exchange Commission.


 


15














 


Controlling Class means
the Class A Notes voting as a single Class, so long as any Class A
Notes are Outstanding, then the Class B Notes, so long as any Class B
Notes are Outstanding, then the Class C Notes voting as a single Class, so
long as any Class C Notes are Outstanding, then the Class D Notes, so
long as any Class D Notes are Outstanding, then the Class E Notes, so
long as any Class E Notes are Outstanding, then the Class F Notes, so
long as any Class F Notes are Outstanding and then the Class G Notes,
so long as any Class G Notes are Outstanding, in each case, based on the
then Aggregate Outstanding Amount thereof.


 


Controlling Person any
other person (other than a Benefit Plan Investor) that has discretionary
authority or control with respect to the assets of the Issuer, a person who
provides investment advice for a fee (direct or indirect) with respect to the
assets of the Issuer, or any “affiliate” (within the meaning of 29 C.F.R. Section 2510.3-101(f)(3))
of any such person.


 


Corporate Services Agreement means
that certain Corporate Services Agreement, dated as of June 14, 2005, as
the same may be amended or supplemented from time to time, between the Issuer
and the Administrator.


 


Corporate Trust Office means
the designated corporate trust office of the Trustee, currently located
at:  (i) for note transfer purposes,
Wells Fargo Center, Sixth Street and Marquette Avenue, Minneapolis, Minnesota
66749, Attention:  CDO Trust Services –
N-Star REL CDO IV and (ii) for all other purposes, 9062 Old Annapolis
Road, Columbia, Maryland 21045. 
Attention: CDO Trust Services – N-Star REL CDO IV, telephone number
410-884-2000, fax number 410-715-3748, or such other address as the Trustee may
designate from time to time by notice to the Rated Noteholders, the Income
Noteholders, the Collateral Manager and the Co-Issuers or the principal
corporate trust office of any successor Trustee.


 


Coverage Tests means
the Class C Coverage Tests, the Class D Coverage Tests, the Class E
Coverage Tests, the Class F Coverage Tests and the Class G Coverage
Tests.


 


Credit Lease Loans
means mortgage loans secured by mortgages on commercial real estate properties
that are subject to a lease to a single tenant.


 


Credit Risk Interest means
any Collateral Interest which, in the Collateral Manager’s reasonable business
judgment, has a significant risk of declining in credit quality or over time
may become an Impaired Interest.


 


Cumulative Applicable Periodic
Interest Shortfall Amount means the Class C
Cumulative Applicable Periodic Interest Shortfall Amount, Class D
Cumulative Applicable Periodic Interest Shortfall Amount, Class E
Cumulative Applicable Periodic Interest Shortfall Amount, Class F
Cumulative Applicable Periodic Interest Shortfall Amount and Class G
Cumulative Applicable Periodic Interest Shortfall Amount.


 


Cure Advance
means, amounts advanced by a Holder of Income Notes pursuant to the Paying
Agency Agreement to permit the Issuer to exercise its right to cure payment
defaults with respect to any Senior Loan related to a Collateral Interest in
accordance with the applicable underlying instrument.


 


Current Portfolio means
the portfolio (measured by Principal Balance) of (a) the Pledged
Collateral Interests and the proceeds of the disposition thereof held as Cash
and (b) Eligible Investments purchased with proceeds of the disposition of
Pledged Collateral Interests, existing immediately prior to the sale, maturity
or other disposition of a Pledged Collateral Interest or immediately prior to
the acquisition of a Pledged Collateral Interest, as the case may be.


 


16

















 


Custodian has
the meaning specified in Section 3.3(a).


 


Daily Official List
means the Daily Official List of the Irish Stock Exchange.


 


Deemed Floating Asset Hedge
means, with respect to a Fixed Rate Collateral Interest, an interest rate swap
having (i) a notional schedule equal to the Principal Balance as it is
reduced by expected amortization of such Fixed Rate Collateral Interest over
time and (ii) payment dates identical to the Payment Dates of the Issuer
under this Indenture; provided that, (x) at
the time of entry into the Deemed Floating Asset Hedge, (i) the expected
principal payments on the Fixed Rate Collateral Interest comprising a Deemed
Floating Rate Collateral Interest will not extend beyond 10 years after the
effective date thereof and (ii) the scheduled notional amount of such
Deemed Floating Asset Hedge at any time is equal to the expected principal
amount of the related Fixed Rate Collateral Interest (as calculated at such
time), (y) the Rating Agencies and the Trustee are notified prior to the
Issuer’s entry into a Deemed Floating Asset Hedge, and each will be provided
with the identity of the proposed hedge counterparty and copies of the hedge
documentation and notional schedule and (z) such Deemed Floating Asset
Hedge is priced at then-current market rates. 
In the event any Deemed Floating Asset Hedge is not a Form-Approved
Hedge Agreement, the Collateral Manager will provide prior written notice to
S&P of the Issuer’s entry into such Deemed Floating Asset Hedge and will
obtain Rating Agency Confirmation from S&P with respect to the entry of the
Issuer into such Deemed Floating Asset Hedge.


 


Deemed Floating Rate Collateral
Interest means a Fixed Rate Collateral Interest the
interest rate of which is hedged into a Floating Rate Collateral Interest using
a Deemed Floating Asset Hedge; provided that
at the time of entry into the Deemed Floating Asset Hedge the Average Life of
such Deemed Floating Rate Collateral Interest would not increase or decrease by
more than one year from its expected average life if it were to prepay at
either 50% or 150% of its pricing speed.


 


Deemed Floating Spread means
the difference between the stated rate at which interest accrues on each Fixed
Rate Collateral Interest that comprises a Deemed Floating Rate Collateral
Interest (excluding all Impaired Interests and Deferred Interest PIK Bonds) and
the fixed rate that the Issuer agrees to pay on the Deemed Floating Asset Hedge
at the time such swap is executed.


 


Default means
any Event of Default or any occurrence that, with notice or the lapse of time
or both, would become an Event of Default.


 


Defaulting Party
has the meaning given to such term in the standard form 1992 ISDA Master Agreement
(Multicurrency –Cross Border).


 


Defaulted Interest means
any interest due and payable in respect of any Class A Note or any Class B
Note or, if no Class A Notes or Class B Notes are Outstanding, in
respect of any Class C Note or, if no Class C Notes are Outstanding,
in respect of any Class D Note, or if no Class D Notes are
Outstanding, in respect of any Class E Note, or if no Class E Notes
are Outstanding, in respect of any Class F Note, or if no Class F
Notes are Outstanding, in respect of any Class G Note and any interest on
such Defaulted Interest that (in each case) is not punctually paid or duly
provided for on the applicable Payment Date (including the applicable Stated
Maturity Date) of the applicable Rated Note.


 


Deferred Interest PIK Bond means
a PIK Bond with respect to which interest has been deferred or capitalized or
does not pay interest when scheduled (other than an Impaired Interest) for each
consecutive payment date occurring over a period of the lesser of (i) six
months or (ii) two consecutive payment dates, but only until such time as
payment of interest on such PIK Bond has resumed and all capitalized and
deferred interest and any interest thereon has been paid in cash in accordance
with the terms of the Underlying Instruments.


 


17

















 


Deferred Interest PIK Bond Amount
means, with respect to each Deferred Interest PIK Bond in the Collateral,
the lesser of (i) the product of the Principal Balance of such Deferred
Interest PIK Bond and the Applicable Recovery Rate of such Deferred Interest
PIK Bond and (ii) the product of the Principal Balance of such Deferred
Interest PIK Bond and the Market Value of such Deferred Interest PIK Bond.


 


Depositary means,
with respect to the Indenture Issued Notes issued in the form of one or more
Global Notes, the Person designated as Depositary pursuant to Section 2.2(e), or
any successor thereto, appointed pursuant to the applicable provisions of this
Indenture.


 


Depositary Participant means
a broker, dealer, bank or other financial institution or other Person for whom
from time to time the Depositary effects book-entry transfers and pledges of
notes deposited with the Depositary.


 


Depositor means  N-Star REL CDO Depositor Corp. and any successors or
assigns, in its capacity as depositor under the Master Trust Agreement.


 


Deutsche Bank  means
Deutsche Bank Securities Inc.


 


Distribution means
any payment of principal, interest or fee or any dividend or premium payment
made on, or any other distribution in respect of, an obligation or security.


 


Dollar or U.S.$ means currency of the United
States as at the time shall be legal tender for all debts, public and private.


 


DTC means
The Depository Trust Company, a New York corporation, and its nominees and
their respective successors.


 


Due Date means
each date on which a Distribution is due on a Pledged Security.


 


Due Period means,
with respect to each Payment Date, the period beginning on the day following
the last day of the preceding Due Period relating to the preceding Payment Date
(or, in the case of the Due Period that is applicable to the first Payment
Date, beginning on the Closing Date) and ending at the close of business
on the fourth (4th) Business Day preceding such Payment Date.


 


Earn-Out Asset means,
a Collateral Interest that (a) requires the Issuer to make one or more
future advances to the obligor under the Underlying Instruments relating
thereto, subject to satisfaction of conditions precedent therein, (b) specifies
a maximum amount that can be borrowed on one or more fixed borrowing dates and (c) does
not permit the re-borrowing of any amount previously repaid by the obligor
thereof; provided, however, that any such Earn-Out Asset will be an Earn-Out
Asset only until all commitments by the Issuer to make advances to the obligor
thereof expire or are terminated or reduced to zero.


 


Earn-Out Asset Account means
the Securities Account designated the “Earn-Out Asset Account” and established
in the name of the Trustee pursuant to Section 10.8.


 


Effective Date
means the date that is the earliest of (i) the 180th day following the Closing Date, (ii) the
date on which the Issuer has purchased Collateral Interests with amounts on
deposit in the Uninvested Proceeds Account having an aggregate par amount of
U.S.$100,000,000 or (iii) such earlier date (if any) that is designated by
the Collateral Manager by notice to the Trustee under the Indenture; provided that the Collateral Manager has received Rating
Agency Confirmation on such date; provided, further, that 


 


18

















 


in the event that such day does not fall on a Business
Day, the Effective Date shall be the next succeeding Business Day.


 


Eligibility Criteria
has the meaning specified in Section 12.2.


 


Eligible Investments
means any U.S. dollar denominated investment that, at the time it is delivered
to the Trustee, is one or more of the following obligations or securities,
including, without limitation, those investments for which the Trustee or an
Affiliate of the Trustee provides services:


 


(i)                                     cash;


 


(ii)                                  direct
Registered obligations of, and Registered obligations the timely payment of
principal of and interest on which is fully and expressly guaranteed by, the
United States of America, or any agency or instrumentality of the United States
of America the obligations of which are backed by the full faith and credit of
the United States of America;


 


(iii)                               demand and time deposits
in, interest bearing trust accounts and certificates of deposit of, bankers’
acceptances issued by, or federal funds sold by any depository institution or
trust company (including the Trustee) incorporated under the laws of the
United States of America or any state thereof and subject to the supervision
and examination by federal and/or state banking authorities so long as the
commercial paper and/or debt obligations of such depository institution or
trust company (or, in the case of the principal depository institution in a
holding company system, the commercial paper or debt obligations of such holding
company) at the time of such investment or contractual commitment providing for
such investment have a credit rating of:


 


(a)                                  in
the case of long-term debt obligations, not less than “Aa2” by Moody’s and “AAA”
by S&P; or


 


(b)                                 in
the case of commercial paper and short-term debt obligations including time
deposits, P-1 by Moody’s and “A-1” by S&P (provided
that, in the case of commercial paper and short-term debt obligations with a
maturity of longer than 91 days, the issuer thereof must also have at the time
of such investment a long-term credit rating of not less than “AA+” by
S&P);


 


(iv)                              Registered
securities other than mortgage-backed securities bearing interest or sold at a
discount issued by any corporation under the laws of the United States of America
or any state thereof that have a credit rating of “AA+” by S&P at the time
of such investment or contractual commitment providing for such investment;


 


(v)                                 unleveraged
repurchase obligations (if treated as debt for tax purposes by the issuer) with
respect to any security described in clause (ii) above, entered into
with a depository institution or trust company (acting as principal) described
in clause (iii) or entered into with broker-dealers registered with
the Commission (acting as principal) whose short-term debt has a credit rating
of “P-1” by Moody’s and “A-1+” by S&P at the time of such investment in the
case of any repurchase obligation for a security having a maturity not more
than 183 days from the date of its issuance or whose long-term debt has a
credit rating of at least “Aa2” by Moody’s and “AA+” by S&P at the time of
such investment in the case of any repurchase obligation for a security having
a maturity more than 183 days from the date of its issuance;


 


(vi)                              commercial
paper or other short-term obligations having at the time of such investment a
credit rating of “P-1” by Moody’s and “A-1+” by S&P that are registered and
are either bearing interest 


 


19

















 


or are sold at a discount from the face amount thereof and that have a
maturity of not more than 183 days from its date of issuance; provided that in the case of commercial paper with a
maturity of longer than 91 days, the issuer of such commercial paper (or, in
the case of a principal depository institution in a holding company system, the
holding company of such system), if rated by the Rating Agencies, must have at
the time of such investment a long-term credit rating of at least “Aa2” by
Moody’s and “AA+” by S&P;


 


(vii)                           money market funds with
respect to any investments described in clauses (ii) through (vi) above
having, at the time of such investment, a credit rating of not less than “AAA”
by Moody’s “AAA/AAAm/AAAm-G” by S&P (if such funds are rated by S&P),
respectively (including those for which the Trustee is investment manager or
advisor), provided that such fund or vehicle is
formed and has its principal office outside the United States; and


 


(viii)                        any other investments for which
Rating Agency Confirmation is received;


 


provided that (a) Eligible
Investments purchased with funds in the Collection Account will be held until
maturity except as otherwise specifically provided herein and will include only
such obligations or securities as mature no later than the Business Day prior
to the Payment Date next succeeding the date of investment in such obligations
or securities, unless such Eligible Investments are investments of the type
described in clause (i) or (iii) above, in which event such
Eligible Investments may mature on such Payment Date and (b) none of the
foregoing obligations or securities will constitute Eligible Investments if
all, or substantially all, of the remaining amounts payable thereunder will
consist of interest and not principal payments, if such security is purchased at
a price in excess of 100% of par, if such security is subject to substantial
non-credit related risk, as determined by the Collateral Manager in its
judgment, if any income from or proceeds of disposition of the obligation or
security is or will be subject to deduction or withholding for or on account of
any withholding or similar tax or, from the time, if any, that the Issuer  is no longer a Qualified REIT Subsidiary, the
acquisition (including the manner of acquisition), ownership, enforcement or
disposition of the obligation or security will subject the Issuer to net income
tax in any jurisdiction outside its jurisdiction of incorporation.


 


Eligible SPV Jurisdiction
means Bahamas, Bermuda, the Cayman Islands, the Channel Islands, the
Netherlands Antilles, Luxembourg or any other similar jurisdiction (so long as
Rating Agency Confirmation is obtained in connection with the inclusion of such
other jurisdiction) generally imposing either no or nominal taxes on the income
of companies organized under the laws of such jurisdiction.


 


Emerging Market Issuer
means a sovereign or non-sovereign issuer located in a country that is in Latin
America, Asia, Africa, Eastern Europe or the Caribbean or in a country the
dollar-denominated sovereign debt obligations of which are rated lower than “Aa2”
by Moody’s and lower than “AA” by S&P; provided that
an issuer of Asset-Backed Securities located in any Eligible SPV Jurisdiction
shall not be an Emerging Market Issuer for purposes hereof if the underlying
collateral of such Asset-Backed Securities consists solely of obligations of
obligors located in the United States and Qualifying Foreign Obligors.


 


Entitlement Holder has
the meaning specified in Section 8-102(a)(7) of the UCC.


 


Entitlement Order has
the meaning specified in Section 8-102(a)(8) of the UCC.


 


Equity Interest
means any security that does not entitle the holder thereof to receive periodic
payments of interest and one or more installments of principal acquired by the
Issuer as a result of the exercise or conversion of Collateral Interests, in
conjunction with the purchase of Collateral Interests or in exchange for a
Collateral Interest.


 


20

















 


ERISA means
the U.S. Employee Retirement Income Security Act of 1974, as amended.


 


ERISA Restriction Certificate means
the ERISA Restriction Certificate substantially in the form set forth in Exhibit C-4
hereto.


 


Euroclear means
Euroclear Bank S.A/N.V., as operator of the Euroclear system.


 


Event of Default has
the meaning specified in Section 5.1.


 


Excepted Property means
the U.S.$ 1,000 of capital contributed to the Issuer in respect of the Issuer’s
Ordinary Shares in accordance with the Articles and U.S.$ 1,000 representing a
profit fee to the Issuer.


 


Exchange Act means
the United States Securities Exchange Act of 1934, as amended.


 


Expense Reserve Account means
the Securities Account designated the “Expense Reserve Account” and established
in the name of the Trustee pursuant to Section 10.6.


 


Fee Basis Amount means
an amount equal, for any Payment Date, to the average of the aggregate
Collateral Interest Principal Balance (excluding the aggregate Principal
Balance of Impaired Interests) on the first day of the related Due Period and
the aggregate Collateral Interest Principal Balance (excluding the aggregate
Principal Balance of Impaired Interests) on the last day of such Due Period.


 


Financial Asset has
the meaning specified in Section 8-102(a)(9) of the UCC.


 


Financing Statement means
a financing statement relating to the Collateral naming the Issuer as debtor
and the Trustee on behalf of the Secured Parties as secured party.


 


Fixed Rate Collateral Interest
means any Collateral Interest which bears a fixed rate of interest.


 


Fixed Rate Notes
means the Class F Notes and Class G Notes.


 


Floating Rate Collateral Interest
means any Collateral Interest that bears interest based
upon a floating rate index.


 


Floating Rate Notes
means, collectively, the Class A Notes, the Class B Notes, the Class C
Notes, the Class D Notes and the Class E Notes.


 


Form-Approved Hedge Agreement means
a Hedge Agreement relating to a specific Hedge Counterparty with respect to
which (a) the related Collateral Interest could be purchased by the Issuer
without any required action by the Rating Agencies and (b) the
documentation of which conforms in all material respects to a form for which
Rating Agency Confirmation was previously obtained (as certified to the Trustee
by the Collateral Manager) for use of such form by the Issuer; provided that (i) such Form-Approved Hedge Agreement
shall not provide for any upfront payments to be made to any Hedge
Counterparty, (ii) any revised Form-Approved Hedge Agreement with respect
to a particular Hedge Counterparty shall be approved by each of the Rating
Agencies at least 10 days prior to the initial use thereof as evidenced by
Rating Agency Confirmation, (iii) any Rating Agency may withdraw its
consent to the use of a particular Form-Approved Hedge Agreement by written
notice to the Trustee, the Collateral Manager and the relevant Hedge
Counterparty (provided that such withdrawal of
consent shall not affect any existing Hedge Agreement entered into with such
Hedge Counterparty) and (iv) the Issuer (or the Collateral Manager on its
behalf) shall deliver to the Trustee and each Rating Agency a copy of each
Form-Approved Hedge Agreement specifying the Hedge Counterparty to which it
relates upon 


 


21

















 


receipt of Rating Agency Confirmation with respect
thereto, and the Trustee’s records (when taken together with any correspondence
received from the Rating Agencies pursuant to clause (ii)) shall be
conclusive evidence of such form.


 


GAAP has
the meaning specified in Section 6.3(k).


 


Global Notes means
the Rule 144A Global Notes and the Regulation S Global Notes.


 


Grant means
to grant, bargain, sell, warrant, alienate, remise, demise, release, convey,
assign, transfer, mortgage, pledge, create and grant a security interest in and
right of set-off against, deposit, set over and confirm.  A Grant of the Pledged Securities, or of any
other instrument, shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate
continuing right to claim for, collect, receive and receipt for principal,
interest and fee payments in respect of the Pledged Securities or such other
instruments, and all other amounts payable thereunder, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring Proceedings in the name of the
granting party or otherwise, and generally to do and receive anything that the
granting party is or may be entitled to do or receive thereunder or with
respect thereto.


 


Hedge Agreement means
the interest rate protection agreement, as amended from time to time, together
with any replacement hedge agreement on substantially identical terms (or that
otherwise satisfies the conditions of Section 16.1), entered into pursuant
to Section 16.1 or a Deemed Floating Asset Hedge.  The Hedge Agreement shall provide that any
amount payable to the Hedge Counterparty thereunder shall be subject to the
Priority of Payments and that any amount payable upon the early termination or
liquidation thereof shall be payable only on a Payment Date in accordance with
the Priority of Payments.


 


Hedge Counterparty means
(a) any hedge counterparty (or any permitted assignee or successor) under
a Hedge Agreement that satisfies the Hedge Counterparty Ratings Requirement and
(b) any substitute or additional parties therefore appointed in accordance
with Section 16.1.


 


Hedge Counterparty Collateral
Account means each Securities Account designated the “Hedge
Counterparty Collateral Account” and established in the name of the Trustee pursuant
to Section 16.1(d).


 


Hedge Counterparty Ratings
Requirement means, with respect to any Hedge Ratings
Determining Party: (a) either (x) the short-term rating of such Hedge
Ratings Determining Party is not lower than “A-1” by Standard & Poor’s
or (y) if such Hedge Ratings Determining Party does not have a short-term
rating from Standard & Poor’s, the long-term rating of such Hedge
Ratings Determining Party by Standard & Poor’s is not lower than “A+”
and (b) (x) a rating on the short-term unsecured, unsubordinated debt
obligations of the Hedge Ratings Determining Party of “P-1” by Moody’s and a
rating on the long-term unsecured, unsubordinated debt obligations of the Hedge
Ratings Determining Party of at least “A1” by Moody’s or (y) if there is
no short-term rating by Moody’s, a rating on the long-term unsecured,
unsubordinated debt obligations of the Hedge Ratings Determining Party of at
least “Aa3” by Moody’s; provided, that
any rating shall be reduced by one subcategory to the extent it is on credit watch
with negative implications by Moody’s.


 


Hedge Payment Amount
means, with respect to any Hedge Agreement and any Payment Date, the amount, if
any, then payable by the Issuer to such Hedge Counterparty, including any
amounts so payable in respect of a termination of any Hedge Agreement.


 


Hedge Ratings Determining Party means
(a) unless clause (b) applies with respect to the Hedge
Agreement, the Hedge Counterparty or any transferee thereof or (b) any
Affiliate of the Hedge 


 


22

















 


Counterparty or any transferee thereof that
unconditionally and absolutely guarantees (with the form of such guarantee
meeting S&P’s then-current published criteria with respect to guarantees)
the obligations of the Hedge Counterparty or such transferee, as the case may
be, under the Hedge Agreement.  For the
purpose of this definition, no direct or indirect recourse against one or more
shareholders of the Hedge Counterparty or any such transferee (or against any
Person in control of, or controlled by, or under common control with, any such
shareholder) shall be deemed to constitute a guarantee, security or support of
the obligations of the Hedge Counterparty or any such transferee.


 


Hedge Receipt Amount
means, with respect to any Hedge Agreement and any Payment Date, the amount, if
any, then payable to the Issuer by the related Hedge Counterparty, including
any amounts so payable in respect of a termination of any Hedge Agreement.


 


Herfindahl Index means
an index calculated by the Collateral Manager by dividing (i) one by (ii) the
sum of, with respect to each Commercial Mortgage Loan comprising or underlying
a Collateral Interest, (x) the principal balance of such Collateral
Interest divided by (y) the aggregate principal balance of all Collateral
Interests, raised to the second power. For purposes of calculating the
Herfindahl Index, all Collateral Interests from a single issue of CMBS shall be
treated as a single Collateral Interest and each $12,000,000 increment of Cash
in any Account shall be treated as a single Collateral Interest.


 


Herfindahl Score means
a measurement of the diversity of a pool of loans of unequal size calculated in
accordance with the Herfindahl Index.


 


Highest Auction Price
means, in connection with a Redemption, the bid or bids for the Collateral
Interests resulting in the highest auction price of one or more Subpools of
Collateral Interests.


 


Holder or Noteholder means (i) with
respect to any Rated Note, any Rated Noteholder, (ii) with respect to any
Income Note, any Income Noteholder and (iii) with respect to any Indenture
Issued Note, any Indenture Issued Noteholder, as the context may require.


 


Impaired Interests Amount means
the sum, with respect to each Impaired Interest in the Collateral, of the
lesser of (i) the product of the Principal Balance of such Impaired
Interest and the Applicable Recovery Rate of such Impaired Interest and (ii) the
product of the Principal Balance of such Impaired Interest and the Market Value
of such Impaired Interest.


 


Impaired Interest
means any Collateral Interest or any other security included in the Collateral
which (a) is not a CMBS and foreclosure or a payment default (whether or
not declared) with respect to the related Commercial Mortgage Loan has occurred
or (b) is a CMBS and the published rating from of such Collateral Interest
has been downgraded, qualified or withdrawn by any Rating Agency from the
ratings that were in place as of the Closing Date (or, in the case of
additional Collateral Interests, the date of purchase by the Issuer).


 


Income Note Distribution Account means
the account designated the “Income Note Distribution Account” and established
by the PAA Issued Note Paying Agent in the name of the PAA Issued Note Paying
Agent for the benefit of the Issuer pursuant to the Paying Agency Agreement.


 


Income Note Excess Funds means
all remaining Collateral Interest Collections and Collateral Principal
Collections as set forth in Section 11.1(a)(27) and 11.1(b)(23).


 


Income Noteholder means,
with respect to any Income Note, the Person in whose name such Income Note is
registered in the Income Note Register.


 


23

















 


Income Notes means
the U.S.$60,000,000 Income Notes Due 2040.


 


Income Notes Stated Amount means
U.S.$60,000,000.


 


Indenture means
this instrument and, if from time to time supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, as so supplemented or amended.


 


Indenture Issued Notes
means, collectively, the Class A Notes, the Class B Notes, the Class C
Notes, the Class D Notes, the Class E Notes and the Class F
Notes.


 


Indenture Issued Noteholder
means, with respect to any Indenture Issued Note, the Person in whose name such
Note is registered; provided that
Beneficial Owners or Agent Members will have no rights under the Indenture with
respect to Global Notes, and the Indenture Issued Noteholder may be treated by
the Issuer and the Trustee (and any agent of any of the foregoing) as the
owner of such Global Notes for all purposes whatsoever.


 


Independent means,
as to any Person, any other Person (including, in the case of an accountant, or
lawyer, a firm of accountants or lawyers and any member thereof) who (i) does
not have and is not committed to acquire any material direct or any material
indirect financial interest in such Person or in any Affiliate of such Person, (ii) is
not connected with such Person as an Officer, employee, promoter, underwriter,
voting trustee, partner, director or Person performing similar functions and (iii) if
required to deliver an opinion or certificate to the Trustee pursuant to this
Indenture, states in such opinion or certificate that the signer has read this
definition and that the signer is Independent within the meaning hereof. “Independent”
when used with respect to any accountant may include an accountant who audits
the books of such Person if in addition to satisfying the criteria set forth
above the accountant is independent with respect to such Person within the meaning
of Rule 101 of the Code of Ethics of the American Institute of Certified
Public Accountants.


 


Initial Hedge Agreement
means the first Hedge Agreement (other than a Deemed Floating Asset Hedge)
entered into by the Issuer in connection with this transaction; provided that Rating Agency Confirmation is received with
respect thereto.


 


Initial Hedge Counterparty
means the Hedge Counterparty with respect to the Initial Hedge Agreement.


 


Initial Payment Date
means the Payment Date occurring in July, 2005.


 


Initial Purchasers
means Deutsche Bank Securities Inc, Citigroup Global Markets Inc. and Wachovia
Capital Markets, LLC, each as an initial purchaser of the Class A Notes,
the Class B Notes, the Class C Notes, the Class D Notes and the Class E
Notes.


 


Instrument has
the meaning specified in Section 9-102(a)(47) of the UCC.


 


Interest
Advance has the meaning specified in Section 10.17.


 


Interest Coverage Amount means,
as of any Measurement Date, an amount equal to (i) the amount received or
scheduled to be received as Collateral Interest Collections during the related
Due Period, less (ii) the amounts scheduled to be paid on the related
Payment Date pursuant to Section 11(a)(1) through (3) and (to
the extent not covered by Section 11(a)(1) through (3)) Section 11(b)(1) and,
for purposes of calculating the Interest Coverage Ratios, any amounts scheduled
to be paid to the Interest Reserve Account on the related Payment Date pursuant
to Section 11.1(a)(6); provided that (a) following
the date 


 


24

















 


on which a Collateral Interest becomes an Impaired
Interest, scheduled Collateral Interest Collections shall not include any
amount scheduled to be received on Impaired Interests or any amount scheduled
to be received on securities that are currently deferring interest until (1) such
amounts are actually received in Cash or (2) the cumulative aggregate
amounts actually received on an Impaired Interest exceed the Principal Balance
of such Impaired Interest, (b) the expected interest income on Floating
Rate Collateral Interests and Eligible Investments shall be calculated using
the then-current interest rate applicable thereto and (c) with respect to
any Written Down Interest, the Interest Coverage Amount shall exclude any interest
accrued on any Written Down Amount.


 


Interest Coverage Ratio means,
on any Measurement Date for any Class of Notes, the ratio (expressed as a
percentage) of (x) to (y), where (x) is equal to the Interest
Coverage Amount as of such Measurement Date and where (y) is the sum of
the Periodic Interest for such Class and each Senior Class of Notes
for the Payment Date immediately following such Measurement Date; provided that
the Interest Coverage Amount shall be calculated after giving effect to any
scheduled payment to the Interest Reserve Account for the Payment Date
immediately following such Measurement Date.


 


Interest Coverage Test means,
for any Class of Notes Outstanding, a test that is satisfied as of any
Measurement Date when the applicable Interest Coverage Ratio is equal to or
greater than the applicable Required Coverage Rates.


 


Interest Only Security means
any security that by its terms provides for periodic payments of interest and
does not provide for the repayment of a stated principal amount.


 


Interest Period
means (i) with respect to the Initial Payment Date, the period from and
including the Closing Date to but excluding the Initial Payment Date and (ii) thereafter
with respect to each Payment Date, the period beginning on the first day following
the end of the preceding Interest Period and ending on (and including) the
day before the next Payment Date.


 


Interest Reserve Account
means the account established by the Trustee, held in the name of the Trustee
for the benefit and on behalf of the Secured Parties and into which the Trustee
will deposit, on each Payment Date, the Interest Reserve Amount, if any, in
accordance with the Priority of Payments.


 


Interest Reserve Amount means,
as of any Calculation Date, the sum of (i) the aggregate Quarterly Pay
Security Interest Reserve Amounts and (ii) the aggregate amount of
Semi-Annual Pay Security Interest Reserve Amounts.


 


Investment Advisers Act
means the United States Investment Advisers Act of 1940, as amended.


 


Investment Company Act means
the U.S. Investment Company Act of 1940, as amended, and the rules thereunder.


 


Irish Listing Agent
means NCB Stockbrokers Limited.


 


Irish Paying Agent means
NCB Stockbrokers Limited.


 


Issue means
Collateral Interests issued by the same issuer secured by the same collateral
pool.


 


Issuer means
N-Star REL CDO IV Ltd., an exempted company incorporated and existing under the
law of the Cayman Islands, unless a successor Person shall have become the
Issuer pursuant to the applicable provisions of this Indenture, and thereafter “Issuer”
shall mean such successor Person.


 


25














 


Issuer Order and
Issuer Request mean, respectively, a
written order or a written request, which may be in the form of a standing
order or request in each case dated and signed in the name of the Issuer (or,
as expressly provided herein, the Collateral Manager on its behalf) by an
Authorized Officer of the Issuer (or, as expressly provided herein, the
Collateral Manager) and (if appropriate) the Co-Issuer, as the context may
require or permit.


 


LIBOR means,
with respect to each Interest Period (other than the first Interest Period), a
floating rate equal to the London interbank offered rate for one-month U.S.
Dollar deposits determined in the manner described in Schedule B. LIBOR for the
first Interest Period is 3.25358%.


 


LIBOR Calculation Date has
the meaning specified in Schedule B.


 


Listed Bidders has
the meaning specified in Schedule E.


 


London Banking Day has
the meaning specified in Schedule B.


 


Majority means
(a) with respect to any Class or Classes of Rated Notes, the Holders
of more than 50% of the Aggregate Outstanding Amount of the Rated Notes of such
Class or Classes of Rated Notes, as the case may be and (b) with
respect to Income Notes, the Holders of more than 50% Income Notes Stated
Amount.


 


Margin Stock means
“margin stock” as defined under Regulation U issued by the Board of Governors
of the Federal Reserve System.


 


Market Value means,
on any date of determination, the average of three or more bid-side prices
expressed as a percentage of the par amount, obtained from independent,
nationally recognized financial institutions in the relevant market for one or
more Collateral Interests, each unaffiliated with each other and the Collateral
Manager, as certified by the Collateral Manager (to the extent that such
bid-side prices may be obtained by the Collateral Manager using its
commercially reasonable efforts and commercially reasonable business
judgment).  If three or more bid-side
prices cannot be so obtained, then the Market Value on such date of determination
will be the lower of two bid-side prices, if two bid-side prices are obtained
in the manner described above, and the sole bid-side price if only one bid-side
price is obtained in the manner described above.  If no bids can be obtained in the manner described
above, the Market Value will be the price, expressed as a percentage of the par
amount, determined by the Collateral Manager in its commercially reasonable
judgment.


 


Master Trust Agreement means
that certain Master Trust Agreement, dated as of June 14, 2005, as the
same may be amended or supplemented from time to time, between the Depositor
and the Underlying Trustee.


 


Measurement Date means
any of the following:  (a) the
Effective Date; (b) any date after the Effective Date upon which the
Issuer disposes or acquires (which date of acquisition shall be deemed to be
the date on which the Issuer enters into commitments to acquire such Collateral
Interest) any Collateral Interest; (c) each Calculation Date; (d) the
last Business Day of each calendar month (other than the calendar month preceding
the month in which a Calculation Date occurs and any calendar month prior to
and including the month in which the Effective Date occurs); and (e) with
reasonable notice to the Issuer, the Collateral Manager and the Trustee, any
other Business Day that any Rating Agency or Holders of more than 50% of the
then Aggregate Outstanding Amount of any Class of Rated Notes requests to
be a “Measurement Date”; provided that
if any such date would otherwise fall on a day that is not a Business Day, the
relevant Measurement Date will be the next succeeding day that is a Business
Day.


 


26

















 


Mezzanine Loans
means mezzanine loans secured by ownership interests in entities owning
commercial properties.


 


Moneyline Telerate Page 3750
means the display page so designated on Moneyline
Telerate Service (or such other page as may replace that page on that
service, or such other service as may be nominated as the information vendor,
for the purposes of displaying rates comparable to LIBOR).


 


Monitoring Fee
means, with respect to each Payment Date, an amount equal to 0.10% per annum of
the Fee Basis Amount payable to the Collateral Manager pursuant to the
Collateral Management Agreement.


 


Moody’s means
Moody’s Investors Service, Inc. and any successor or successors thereto.


 


Moody’s Maximum
Weighted Average Rating Factor Test means a test that
will be satisfied on any Measurement Date if the Moody’s Tranched Weighted
Average Rating Factor of the Collateral Interests is equal to or less than
4,000.


 


Moody’s Rating
means, with respect to any Collateral Interest:


 


(i)                                     if
such Collateral Interest is rated by Moody’s, such rating;


 


(ii)                                  if
such Collateral Interest is not rated by Moody’s, then the Moody’s Rating of
such Collateral Interest shall be deemed to be the rating thereof as may be
assigned by Moody’s upon the request of the Issuer or the Collateral
Administrator, provided that the Collateral
Administrator may, consistent with Moody’s published criteria for underwriting
and tranching of commercial real estate loans, use its estimated tranched
ratings for Collateral Interests representing up to 10% of the Collateral
Interest Principal Balance represented by Commercial Mortgage Loans, Subordinate Mortgage Loan Interests,
and Mezzanine Loans; provided that the Collateral Manager shall submit such
Collateral Interests for a Moody’s estimated rating with 30 days of
acquisition;


 


(iii)                               with respect to the CMBS
that are CMBS conduit securities (i.e., CMBS representing interests in a pool
of commercial mortgage loans), if such Collateral Interest is not rated by
Moody’s, and no other security or obligation of the issuer or the obligor is
rated by Moody’s and neither the Issuer nor the Collateral Administrator
obtains a Moody’s Rating for such Collateral Interest pursuant to clause (ii) above,
then the Moody’s Rating of such Collateral Interest may be determined using any
one of the following methods:


 


                                                (a)           if such Collateral Interest is rated
by both S&P and Fitch or if such Collateral Interest is only rated by
either S&P or Fitch but Moody’s has rated other classes in the same
transaction then the Moody’s Rating will be 2 subcategories lower than the
lowest Moody’s equivalent rating then outstanding on the Collateral Interest;
or


 


(b)           if such Collateral Interest is only
rated by one rating agency, then the Issuer or the Collateral Administrator on
behalf of the Issuer may request that Moody’s assign a rating for such
Collateral Interest, which shall be such Collateral Interest’s Moody’s Rating.


 


(iv)                              with
respect to the Collateral Interests that are REIT Debt Securities or other
corporate debt securities, if such Collateral Interest is not rated by Moody’s,
and no other security or obligation of the issuer or the obligor is rated by
Moody’s and neither the Issuer nor the Collateral Administrator obtains a Moody’s
Rating for such Collateral Interest 


 


27

















 


pursuant to clause (ii) above,
then the Moody’s Rating of such Collateral Interest may be determined using any
one of the following methods:


 


(a)           if such Collateral Interest is rated
at least “BBB” by S&P, then the Moody’s Rating of such Collateral Interest
will be one subcategory below the Moody’s equivalent of the rating assigned by
S&P; or


 


(b)           if such Collateral Interest is rated “BB+”
or below by S&P, then the Moody’s Rating of such Collateral Interest will
be two subcategories below the Moody’s equivalent of the rating assigned by
S&P.


 


Notwithstanding the foregoing, Collateral Interests
representing no more that 20% of the Collateral Interest Principal Balance may
be rated pursuant to clauses (iii) and (iv) above and no single
Collateral Interest Principal Balance that represents more than 5% of the
Collateral Interest Principal Balance can be rated pursuant to clause (iii) or
(iv) above.


 


Moody’s Rating
Factor means with respect to any Collateral Interest, the
number set forth in the table below opposite the Moody’s Rating of such
Collateral Interest.


 


	
  Moody’s Rating

  	
   

  	
  Moody’s Rating Factor

  	
   

  
	
  Aaa

  	
   

  	
  1

  	
   

  
	
  Aa1

  	
   

  	
  10

  	
   

  
	
  Aa2

  	
   

  	
  20

  	
   

  
	
  Aa3

  	
   

  	
  40

  	
   

  
	
  A1

  	
   

  	
  70

  	
   

  
	
  A2

  	
   

  	
  120

  	
   

  
	
  A3

  	
   

  	
  180

  	
   

  
	
  Baa1

  	
   

  	
  260

  	
   

  
	
  Baa2

  	
   

  	
  360

  	
   

  
	
  Baa3

  	
   

  	
  610

  	
   

  
	
  Ba1

  	
   

  	
  940

  	
   

  
	
  Ba2

  	
   

  	
  1,350

  	
   

  
	
  Ba3

  	
   

  	
  1,766

  	
   

  
	
  B1

  	
   

  	
  2,220

  	
   

  
	
  B2

  	
   

  	
  2,720

  	
   

  
	
  B3

  	
   

  	
  3,490

  	
   

  
	
  Caa1

  	
   

  	
  4,770

  	
   

  
	
  Caa2

  	
   

  	
  6,500

  	
   

  
	
  Caa3

  	
   

  	
  8,070

  	
   

  
	
  Ca or lower

  	
   

  	
  10,000

  	
   

  



 


Moody’s
Recovery Rate means, with respect to a Collateral
Interest on any Measurement Date, an amount equal to the percentage for such
Collateral Interest set forth in the Moody’s Recovery Rate Matrix attached as
Schedule C hereto) in (x) the applicable table and (y) the row in
such table opposite the Moody’s Rating (determined in accordance with
procedures prescribed by Moody’s for such Collateral Interest on the date of
its purchase by the Issuer or, in the case of an Impaired Interest, the Moody’s
Rating immediately prior to default).


 


Moody’s Tranched
Weighted Average Rating Factor means, on any Measurement
Date the number obtained by dividing (i) the sum of the series of products
obtained for any Collateral Interest that by multiplying (a) the tranched
principal balance on such Measurement Date of each such Collateral Interest by (b) its
respective Moody’s Rating Factor on such Measurement Date by (ii) the
aggregate tranched principal balance on such Measurement Date of all Collateral
Interests and rounding the result up to the nearest whole number.


 


Mortgaged
Property means the multifamily or commercial property or
properties securing the Commercial Mortgage Loans.


 


Nonrecoverable
Advance means any Interest Advance previously made or
proposed to be made which, in the judgment of the Advancing Agent or the
Trustee, as applicable, will not be ultimately recoverable from subsequent
payments or collections with respect to the Collateral Interests.  Any determination of


 


28

















 


recoverability by the
Advancing Agent or the Trustee, as applicable, shall be subject to the standard
set forth in Section 10.17.


 


Northstar
Subsidiary shall have the meaning ascribed to such term
in the S&P Letter.


 


Note Paying Agent means
any Person authorized by the Issuer to pay the principal of or interest on any
Indenture Issued Notes on behalf of the Issuer as specified in Section 7.2.


 


Note Payment Sequence
means the application of Collections to pay principal on the Rated Notes in the
following order, in each case until paid in full: (i) Class A Notes, (ii) Class B
Notes, (iii) Class C Notes, (iv) Class D Notes, (v) Class E
Notes, (vi) Class F Notes and (vii) Class G Notes.


 


Note Register and
Note Registrar have the respective
meanings specified in Section 2.4(a).


 


Note Transfer Agent has
the meaning specified in Section 2.4(a).


 


Note Valuation Report has
the meaning specified in Section 10.11(a).


 


Notes means
the Rated Notes and the Income Notes.


 


Offer means,
with respect to any security, (a) any offer by the issuer of such security
or by any other Person made to all of the holders of such security to purchase
or otherwise acquire such security (other than pursuant to any redemption in
accordance with the terms of the related Underlying Instruments) or to convert
or exchange such security into or for Cash, securities or any other type of
consideration or (b) any solicitation by the issuer of such security or
any other Person to amend, modify or waive any provision of such security or
any related Underlying Instrument.


 


Offering means
the offering of the Rated Notes (other than the Class F Notes and the Class G
Notes) under the Offering Circular.


 


Offering Circular means
the Offering Circular, prepared and delivered on or prior to the Closing Date
in connection with the offer and sale of the Rated Notes (other than the Class F
Notes and the Class G Notes), as amended or supplemented from time to
time.


 


Officer means,
(a) with respect to the Issuer, the Co-Issuer and any corporation, the
Chairman of the Board of Directors (or, with respect to the Issuer, any
director), the President, any Vice President, the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer of such entity; and (b) with
respect to any bank or trust company acting as trustee of an express trust or
as custodian, any Trust Officer.


 


Opinion of Counsel means
a written opinion addressed to the Trustee and each Rating Agency (each, a Recipient), in form and substance
reasonably satisfactory to each Recipient, of an attorney at law admitted to
practice before the highest court of any state of the United States or the
District of Columbia (or the Cayman Islands, in the case of an opinion relating
to the laws of the Cayman Islands), which attorney may, except as otherwise expressly
provided in this Indenture, be inside or outside counsel for the Issuer or the
Co-Issuer, as the case may be, and which attorney shall be reasonably
satisfactory to the Trustee.  Whenever an
Opinion of Counsel is required hereunder, such Opinion of Counsel may rely on
opinions of other counsel who are so admitted and so satisfactory which
opinions of other counsel shall accompany such Opinion of Counsel and shall
either be addressed to each Recipient or shall state that each Recipient shall
be entitled to rely thereon.


 


29

















 


Optional Redemption has
the meaning specified in Section 9.1(a).


 


Ordinary Shares means
the 1,000 ordinary shares, par value U.S.$1.00 per share issued by the Issuer.


 


Outstanding means
with respect to the Notes as of any Measurement Date, any and all Notes
theretofore authenticated and delivered under the Indenture and the Paying
Agency Agreement other than Notes cancelled, redeemed, exchanged or replaced in
accordance with the terms of the Indenture or the Paying Agency Agreement, as
applicable; provided that in determining
whether the Holders of the requisite percentage of Notes have given any
direction, notice, consent, approval or objection, any Notes held or
beneficially owned by the Collateral Manager or any of its Affiliates or by an
account or fund for which the Collateral Manager or any of its Affiliates acts
as the investment advisor with discretionary authority will be disregarded with
respect to any vote or consent relating to the removal, termination,
substitution or replacement of the Collateral Manager or the assignment by the
Collateral Manager of its rights and obligations under the Collateral
Management Agreement, except for any assignments or transfers by the Collateral
Manager of its rights and obligations to Affiliates of the Collateral Manager,
subject to any applicable requirements under the Investment Advisers Act.


 


PAA Issued Note Paying Agent means
Wells Fargo Bank, National Association, and any successors or assigns in its
capacity as PAA Issued Note Paying Agent under the Paying Agency Agreement.


 


PAA Issued Note Paying Agent
Expenses means, with respect to any Payment Date, an
amount equal to the sum of all expenses or indemnities incurred by, or
otherwise owing to, the PAA Issued Note Paying Agent during the preceding Due
Period in accordance with the Paying Agency Agreement.


 


PAA Issued Note Paying Agent Fee
means, with respect to any Payment Date, for so long as any Class G Notes
or Income Notes remain Outstanding, the fee payable to the PAA Issued Note
Paying Agent in an aggregate amount equal to U.S.$10,000 per annum.


 


PAA Issued Note Register means,
with respect to the Income Notes and the Class G Notes, the note register
maintained by the PAA Issued Note Registrar.


 


PAA Issued Note Registrar means
Wells Fargo Bank, National Association, and any successors or assigns in its
capacity as PAA Issued Note Registrar under the Paying Agency Agreement.


 


PAA Issued Notes
means, together, the Class G Notes and the Income Notes.


 


Participation Interests pari
passu participation interests in commercial mortgage loans.


 


Paying Agency Agreement means
that certain Paying Agency Agreement, dated as of June 14, 2005, as the
same may be amended or supplemented from time to time, between the Issuer and
the PAA Issued Note Paying Agent.


 


Paying Agents means,
together, the Note Paying Agent and the PAA Issued Note Paying Agent.


 


Payment Account means
the Securities Account designated the “Payment Account” and established in the
name of the Trustee pursuant to Section 10.9.


 


Payment Date means
the 27th day of each calendar month, or if such day is not a Business Day, the
next succeeding Business Day, commencing in July, 2005 and ending in July, 2040
or such earlier date upon which all of the Notes are redeemed as provided
herein.


 


30

















 


Periodic Interest means
the amount of interest payable (i) in respect of each Class of
Floating Rate Notes, calculated with respect to each such Class for the
relevant Interest Period by multiplying the Applicable Periodic Interest Rate
by the Aggregate Outstanding Amount of the related Class at the close of
business on the day immediately preceding the relevant Payment Date,
multiplying the resulting figure by the actual number of days in such Interest
Period, dividing by 360 and rounding the resulting figure to the nearest
U.S.$0.01 (U.S.$0.005 being rounded upwards), and (ii) in respect of each Class of
Fixed Rate Notes, calculated with respect to each such Class for the
relevant Interest Period by multiplying the Applicable Periodic Interest Rate
by the Aggregate Outstanding Amount of the related Class at the close of
the Business Day immediately preceding the relevant Payment Date, multiplying
the resulting figure by (a) for the first Interest Period, 43 days, and (b) for
every other Interest Period, 30 days, dividing by 360 and rounding the
resulting figure to the nearest U.S.$0.01 (U.S.$0.005 being rounded upwards).


 


Permitted NS Purchaser
means (i) NS CDO Holdings IV, LLC or (ii) NS Advisors, LLC or any “affiliate”
thereof within the meaning of Rule 405 under the Securities Act that is an
“accredited investor” within the meaning of Rule 501(a) under the
Securities Act.


 


Person means
any individual, corporation, partnership, limited liability partnership,
limited liability company, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof or any similar
entity.


 


PIK Bond means
any security that, pursuant to the terms of the related Underlying Instruments,
permits the payment of interest thereon to be deferred or capitalized as
additional principal thereof or not pay interest when scheduled (but without
being an Impaired Interest) or that issues identical securities in lieu of
payments of interest in Cash.


 


Plan Asset Regulation  means the U.S. Department of
Labor regulation at 29 C.F.R. Section 2510.3-101.


 


Pledged Collateral Interest means
as of any date of determination, any Collateral Interest that has been Granted
to the Trustee and has not been released from the lien of this Indenture
pursuant to Section 10.12.


 


Pledged Securities means
on any date of determination, (a) the Collateral Interests, Equity
Interests and the Eligible Investments that have been Granted to the Trustee
and (b) all non-Cash proceeds thereof, in each case, to the extent not
released from the lien of this Indenture pursuant hereto.


 


Principal Balance means,
with respect to any Collateral Interest or Eligible Investment, as of any date
of determination, the outstanding principal amount of such Collateral Interest
or Eligible Investment; provided that
the Principal Balance of (i) any Collateral Interest which permits the
deferral or capitalization of interest will not include any outstanding balance
of the deferred and/or capitalized interest, (ii) any Equity Interest will
be zero, (iii) any putable Collateral Interest which matures after the
Stated Maturity Date will be the lower of the put price and the outstanding
principal amount, (iv) any Collateral Interest or Eligible Investment in
which the Trustee does not have a first priority perfected security interest
shall be deemed to be zero and (v) the Principal Balance of an Earn-Out
Asset will be the outstanding principal balance of such Earn-Out Asset, plus
any undrawn commitments that have not been irrevocably reduced with respect to
such Earn-Out Asset; provided, further, that for purposes of calculating the Principal
Coverage Amount, an appraisal reduction of a Collateral Interest will be
assumed to result in an implied reduction of Principal Balance for such
Collateral Interest only if such appraisal reduction is intended to reduce the
interest payable on such Collateral Interest and only in proportion to such
interest reduction.


 


31

















 


Principal Coverage Amount means,
on any Measurement Date, an amount equal to (i) the aggregate Principal
Balance of all Collateral Interests (other than Impaired Interests, Written
Down Interests and Deferred Interest PIK Bonds) included in the Collateral on
such date, plus (ii) the aggregate
Principal Balance of the Eligible Investments in the Collateral Account on such
date that represent Collateral Principal Collections, plus
(iii) the Impaired Interests Amount, plus (iv) with
respect to Written Down Interests, the Reduced Principal Balance, plus (v) the Deferred Interest PIK Bond Amount.  For purposes of calculating the Principal Coverage
Amount, any Collateral Interest that has sustained an implied reduction of
Principal Balance due to an appraisal reduction will not be considered an
Impaired Interest solely due to such implied reduction.


 


Principal Coverage Ratio
means, on any Measurement Date for any Class of Notes, the ratio
(expressed as a percentage) based on the ratio of (x) to (y), where (x) is
the Principal Coverage Amount as of such Measurement Date and (y) is the
sum of the aggregate principal amount of such as class and each Senior Class of
Notes as of such Measurement Date.


 


Principal Coverage Test
means, for any Class of Notes Outstanding, a test satisfied on any
Measurement Date if the applicable Principal Coverage Ratio as of such
Measurement Date is equal to or greater than the applicable Required Coverage
Rates.


 


Principal Prepayments
means, following any failure of any Coverage Test as of any Calculation Date,
amounts that would otherwise be used (i) for payments of Income Note
Excess Funds, (ii) for the purchase of additional Collateral Interests, (iii) for
the payment of certain fees and expenses, (iv) in the case of a failure to
satisfy any Coverage Test for any Class of Notes, for interest payments on
each Subordinate Class of Notes, in each case to the extent necessary to
satisfy such Coverage Test as of the related Calculation Date, to principal
payments on each Class of Notes, starting with the most senior Class of
Notes then Outstanding, until such Coverage Test is satisfied as of the related
Calculation Date or the Notes are paid in full.


 


Priority of Payments means,
collectively, the priority of payments specified in Section 11.1(a), (b) and
(c) or upon an Event of Default, the priority of payments in connection
therewith.


 


Proceeding means
any suit in equity, action at law or other judicial or administrative
proceeding.


 


Proposed Portfolio means
the portfolio (measured by Principal Balance) of (a) the Pledged
Collateral Interests and the proceeds of disposition thereof held as Cash, (b) Uninvested
Proceeds held as Cash and (c) Eligible Investments purchased with
Uninvested Proceeds or the proceeds of disposition of Pledged Collateral
Interests resulting from the sale, maturity or other disposition of a Pledged
Collateral Interest or a proposed purchase of a Collateral Interest, as the
case may be.


 


Purchased Accrued Interest
means all payments of interest received, or amounts collected that are
attributable to interest received on Collateral Interests and Eligible
Investments, to the extent such payments or amounts constitute accrued interest
purchased with Collateral Principal Collections except for interest accrued on
Collateral Interests prior to the Closing Date.


 


Qualified Bidder List means
a list of not less than three Persons that are Independent from one another and
the Issuer prepared by the Collateral Manager and delivered to the Trustee
prior to an Auction, as may be amended and supplemented by the Collateral
Manager from time to time upon written notice to the Trustee; provided that (i) the Qualified Bidder List may include
the Collateral Manager as a Qualified Bidder if it is Independent from the
other Persons on such list and (ii) any such notice referred to above
shall only be effective on any Auction Date if it was received by the Trustee
at least two Business Days prior to such Auction Date.


 


32

















 


Qualified Bidders means
the Persons whose names appear from time to time on the Qualified Bidder List.


 


Qualified Institutional Buyer has
the meaning given in Rule 144A under the Securities Act.


 


Qualified Institutional Lender
means a qualified institutional lender of the type typically permitted to
acquire subordinate interests in commercial mortgage loans (all or a portion of
which will be included in a CMBS transaction) pursuant to the documents
creating such interests.


 


Qualified Purchaser means
(i) a “qualified purchaser” as defined in Section 2(a)(51) of the
Investment Company Act and the rules thereunder, (ii) a “knowledgeable
employee” with respect to the Issuer as defined in rule 3c-5 under the
Investment Company Act or (iii) a company beneficially owned exclusively
by one or more “qualified purchasers” and/or “knowledgeable employees” with
respect to the Issuer.


 


Qualified REIT Subsidiary means
a “Qualified REIT Subsidiary” within the meaning of Section 856(i)(2) of
the Code.


 


Qualifying Foreign Obligor means
a corporation, partnership or other entity organized or incorporated under the
law of any of Australia, Canada, France, Germany, Ireland, Italy, New Zealand,
Sweden, Switzerland or the United Kingdom, so long as the unguaranteed,
unsecured and otherwise unsupported long-term Dollar sovereign debt obligations
of such country are rated “Aa2” or better by Moody’s and “AA” or better by
S&P.


 


Quarterly Pay Security means
a security that provides for periodic payments of interest in cash quarterly.


 


Quarterly Pay Security Interest
Reserve Amount means, with respect to each Collateral
Interest that is a Quarterly Pay Security, as of any Calculation Date, the amount
equal to (i) the amount of interest paid by the obligor on the most recent
payment date (or, if no payment date has occurred, the estimated interest
payment due on the first payment date) with respect to such Quarterly Pay
Security multiplied by (ii) (A) the number of months until the next
payment date with respect to such Quarterly Pay Security minus one (rounded up
to the nearest whole number) divided by (B) three; provided
that for any Quarterly Pay Security with respect to which no scheduled interest
payments remain, the Quarterly Pay Security Interest Reserve Amount shall be
zero.


 


Rake Bond  means
a CMBS backed solely by a single promissory note secured by a mortgaged
property, which promissory note is subordinate in right of payment to one or
more separate promissory notes secured by the same mortgaged property.


 


Ramp-Up Period
means the period commencing on the Closing Date and ending on the Effective
Date.


 


Rated Note Calculation Agent has
the meaning specified in Section 7.15.


 


Rated Notes
means, collectively, the Class A Notes, the Class B Notes, the Class C
Notes, the Class D Notes, the Class E Notes, the Class F Notes
and the Class G Notes.


 


Rated Noteholder
means, with respect to any Rated Note, the Person in whose name such Note is
registered; provided that Beneficial Owners or
Agent Members will have no rights under the Indenture with respect to Global
Notes, and the Rated Noteholder may be treated by the Issuer and the Trustee
(and any agent of any of the foregoing) as the owner of such Global Notes
for all purposes whatsoever.


 


Rating means,
as the context requires, an S&P Rating or a Moody’s Rating.


 


33

















 


Rating Agency means
each of (i) Moody’s, for so long as any of the Outstanding Rated Notes are
rated by Moody’s (including any private or confidential rating) and (ii) S&P,
for so long as any of the Outstanding Rated Notes are rated by Moody’s
(including any private or confidential rating) or, with respect to Pledged
Securities generally, if at any time Moody’s or S&P ceases to provide
rating services, any other nationally recognized investment rating agency
selected by the Issuer (upon consultation with the Collateral Manager) and
reasonably satisfactory to a Majority of each Class of Rated Notes.  In the event that at any time Moody’s ceases
to be a Rating Agency, references to rating categories of Moody’s in this
Indenture shall be deemed instead to be references to the equivalent categories
of such other rating agency as of the most recent date on which such other
rating agency and Moody’s published ratings for the type of security in respect
of which such alternative rating agency is used.  In the event that at any time S&P ceases
to be a Rating Agency, references to rating categories of S&P in this
Indenture shall be deemed instead to be references to the equivalent categories
of such other rating agency as of the most recent date on which such other
rating agency and S&P published ratings for the type of security in respect
of which such alternative rating agency is used.


 


Rating Agency Confirmation means,
with respect to any specified action or determination, for so long as any of
the Rated Notes are Outstanding and rated by Moody’s or S&P, the receipt of
written confirmation by each Rating Agency rating any Rated Notes, that such
specified action or determination will not result in the reduction or
withdrawal or other adverse action with respect to their then-current ratings
on the Rated Notes (including any private or confidential rating) unless
Rating Agency Confirmation is specified herein to be required by only Moody’s
or S&P, in which case such Rating Agency Confirmation will be sufficient.


 


Rating Confirmation has
the meaning specified in Section 7.18(e).


 


Rating Confirmation Failure has
the meaning specified in Section 7.18(e).


 


Real Estate CDO Securities
means securities that entitle the holders thereof to receive payments that
depend on the cash flow from or the credit exposure to a portfolio consisting
primarily of (i) REIT Debt Securities, (ii) commercial mortgage
backed securities or (iii) a combination of the foregoing; provided that such dependence may in addition be conditioned
upon rights or additional assets designed to assure the servicing or timely
distribution of proceeds to holders of the Real Estate CDO Securities such as a
financial guaranty insurance policy.


 


Record Date means
the date on which the Holders of Rated Notes entitled to (i) vote with
respect to any matters under the Indenture are determined, such date being the
15th day (whether or not a Business Day) prior to the date the Trustee delivers
notice with respect to such vote and (ii) receive a payment in respect of
principal or interest on the succeeding Payment Date or Redemption Date are
determined, such date as to any Payment Date or Redemption Date with respect to
any Global Note being the first day (whether or not a Business Day) prior to
such Payment Date or Redemption Date and with respect to any Certificated Note
being the fifteenth day (whether or not a Business Day) prior to such Payment
Date or Redemption Date.


 


Redemption means
an Optional Redemption, an Auction Call Redemption or a Tax Redemption.


 


Redemption Date means
the Payment Date upon which the Rated Notes are redeemed pursuant to an
Optional Redemption, an Auction Call Redemption or a Tax Redemption.


 


Redemption Date Statement has
the meaning specified in Section 10.11(b).


 


34

















 


Redemption Premium
The premium payable to Holders of each Class of Fixed Rate Notes in
connection with an Optional Redemption of such Class of Fixed Rate Notes
in an amount equal to the excess, if any, of (i) the present value
(discounted to the applicable Redemption Date using the Reinvestment Yield on a
monthly basis using a 360-day year of twelve 30-day months as the discount
rate) of the remaining payments of interest and principal due on such Class of
Fixed Rate Notes, assuming that the entire outstanding principal amount of such
Class of Fixed Rate Notes will be paid on the Payment Date occurring in July 2017
and that each intervening payment of interest on such Class of Fixed Rate
Notes will be made on the related Payment Date in its entirety (and therefore
there is no Defaulted Interest on such Class of Fixed Rate Notes) over (ii) the
outstanding principal amount of such Class of Fixed Rate Notes on the
applicable Redemption Date.


 


Redemption Price means,
(i) with respect to each Class of Rated Notes, (a) their then
Aggregate Outstanding Amount plus (b) accrued interest thereon to the date
of redemption to the extent not already paid (including, without limitation,
any Cumulative Applicable Periodic Interest Shortfall Amount together with
interest thereon) plus (c) unreimbursed Interest Advances plus (d) in
the case of an Optional Redemption only and with respect to any Fixed Rate
Notes, the applicable Redemption Premium and (ii) if the Income Notes are
redeemed, the “Redemption Price” for the Income Notes, means an amount equal to
the aggregate of any residual amounts distributable on the Income Notes in
respect of such redemption pursuant to Section 11.1(a) and (b).


 


Redemption Spread
means, with respect to the Class F Notes, 5.75% and with respect to the Class G
Notes, 6.50%.


 


Reduced Principal Balance means,
with respect to each Written Down Interest, the original Principal Balance of
such Written Down Interest minus the Written Down Amount as notified by or on
behalf of the related issuer or trustee to the holders of such Written Down
Interest (including appraisal reductions on CMBS).


 


Reference Banks has
the meaning specified in Schedule B.


 


Registered means
in registered form for U.S. federal income tax purposes and issued after July 18,
1984; provided that a certificate of interest
in a trust that is treated as a grantor trust for U.S. federal income tax
purposes will not be treated as Registered unless each of the obligations or
securities held by the trust was issued after that date.


 


Registered Form has
the meaning specified in Section 8-102(a)(13) of the UCC.


 


Regulation S means
Regulation S under the Securities Act.


 


Regulation S Certificated Note has
the meaning specified in Section 2.4(b)(1)(vi).


 


Regulation S Global Note has
the meaning specified in Section 2.1(a).


 


Regulation S Note has
the meaning specified in Section 2.1(a).


 


Regulation S Transfer Certificate
has the meaning specified in Section 2.4(b)(1)(iii).


 


Regulation U means
Regulation U of the Board of Governors of the Federal Reserve System, 12 C.F.R.
§ 221, or any successor regulation.


 


35














 


Reimbursement Rate means
a per annum rate equal to the “prime rate” as published in the “Money Rates”
section of the Wall Street Journal, as such “prime rate” may change from time
to time.


 


Reinvestment Criteria means,
with respect to any reinvestment of Collateral Principal Payments, the
following criteria:


 


(i)            the
Collateral Quality Tests are satisfied, or, if any Collateral Quality Test was
not satisfied immediately prior to such investments, such Collateral Quality
Test will be maintained or improved following such reinvestment;


 


(ii)           the
Coverage Tests are satisfied, or, if any Coverage Test was not satisfied
immediately prior to such investments, such Coverage Test will be maintained or
improved following such reinvestment;


 


(iii)          if
immediately prior to such reinvestment the Moody’s Maximum Weighted Average
Rating Factor Test was not satisfied, the weighted average of the Moody’s
Rating Factors of the Substitute Collateral Interests purchased with Sale
Proceeds from the Collateral Interests being replaced will be no higher than
the weighted average of the Moody’s Rating Factors of such Collateral Interests
at the time they were released for sale by the Trustee;


 


(iv)          if
immediately prior to such reinvestment the Weighted Average Spread Test was not
satisfied, the Weighted Average Spread of the Substitute Collateral Interests
purchased with Sale Proceeds from the Collateral Interests being replaced will
be no lower than the Weighted Average Spread of such Collateral Interests at
the time they were released for sale by the Trustee; and


 


(v)           no
Event of Default has occurred and is continuing.


 


Reinvestment Period
means the period beginning on the Closing Date and ending on and including the
Payment Date in July, 2010.


 


Reinvestment Yield
means with respect to either class of the Fixed Rate Notes, the rate equal to
the sum of the Redemption Spread with respect to such Fixed Rate Note and the
applicable yield to maturity implied by (i) the yields reported as of
10:00 a.m. (New York City time) on the tenth Business Day preceding
the related Optional Redemption Date on the display page designated as “Page 678”
on the Telerate Service (or such other display as may replace Page 678 on
the Telerate Service) for actively traded U.S. Treasury securities having
a maturity as nearly as practicable equal to the Payment Date occurring in July 2017
or (ii) if such yields are not reported as of such time or the yields
reported as of such time are not ascertainable, the Treasury Constant Maturity Series Yields
reported, for the latest day for which such yields have been so reported as of
the tenth Business Day preceding the Optional Redemption Date, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity as nearly as practicable equal to the Payment Date occurring in July 2017.


 


REIT Debt Securities
means securities issued by a real estate investment trust (as defined in Section 856
of the Code or any successor provision) whose assets consist (except for rights
or other assets designed to assure the servicing or timely distribution of
proceeds to holders of such securities) of a portfolio of real property
interests.


 


Relevant Jurisdiction means,
as to any obligor on any Collateral Interest, any jurisdiction (a) in
which the obligor is incorporated, organized, managed and controlled or
considered to have its seat, (b) where an office through which the obligor
is acting for purposes of the relevant Collateral Interest is located, (c) in



 


36

















 


which the obligor executes Underlying Instruments or (d) in
relation to any payment, from or through which such payment is made.


 


Repository means
the internet-based password protected electronic repository of transaction
documents relating to privately offered and sold collateralized debt obligation
securities located at www.cdolibrary.com and maintained by the Bond Market
Association.


 


Required Coverage Ratio
means, with respect to a specified Class of Notes and the related Interest
Coverage Test or Principal Coverage Test, as the case may be, as of any
Calculation Date, the applicable percentage indicated below opposite such
specified Class or Classes:


 


	
  Class

  	
   

  	
  Principal Coverage Test

  	
   

  	
  Interest Coverage Test

  	
   

  
	
  Class C

  	
   

  	
  137.00

  	
  %

  	
  135.00

  	
  %

  
	
  Class D

  	
   

  	
  132.10

  	
  %

  	
  125.00

  	
  %

  
	
  Class E

  	
   

  	
  119.40

  	
  %

  	
  118.00

  	
  %

  
	
  Class F

  	
   

  	
  114.90

  	
  %

  	
  115.00

  	
  %

  
	
  Class G

  	
   

  	
  110.00

  	
  %

  	
  110.00

  	
  %

  



 


Requisite Noteholders
means the Holders of 662/3% or more of the then Aggregate
Outstanding Amount of (i) the Class A Notes, so long as any Class A
Notes remain Outstanding, (ii) thereafter the Class B Notes so long
as any Class B Notes remain Outstanding, (iii) thereafter the Class C
Notes so long as any Class C Notes remain Outstanding, (iv) thereafter
the Class D Notes so long as any Class D Notes remain Outstanding, (v) thereafter
the Class E Notes so long as any Class E Notes remain Outstanding, (vi) thereafter
the Class F Notes so long as any Class F Notes remain Outstanding and
(vii) thereafter the Class G Notes so long as any Class G Notes
remain Outstanding.


 


Reserved Matters
has the meaning specified in Section 8.2(j).


 


Rule 144A means
Rule 144A under the Securities Act.


 


Rule 144A Certificated Note has
the meaning specified in Section 2.4(b)(1)(vi).


 


Rule 144A Global Note has
the meaning specified in Section 2.1(b).


 


Rule 144A Information means
such information as is specified pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto).


 


Rule 144A Note has
the meaning specified in Section 2.1(b).


 


Rule 144A Transfer
Certificate has the meaning specified in Section 2.4(b)(1)(ii).


 


S&P means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor or successors thereto.


 


S&P CDO Monitor
means the dynamic, analytical computer model provided by S&P to the
Collateral Manager and the Trustee (together with such instructions and
assumptions as are necessary to run such model) on or prior to the Effective
Date used to determine the credit risk of a portfolio of Collateral Interests,
as may be modified by S&P from time to time.


 


S&P CDO Monitor Test
means the test which is satisfied, as of any Calculation Date, if each of the Class A
Note Default Differential, the Class B Note Default Differential, the Class C
Note Default


 


37

















 


Differential, the Class D Note Default
Differential, the Class E Note Default Differential, the Class F Note
Default Differential and the Class G Note Default Differential of the
Current Portfolio or the Proposed Portfolio, as applicable, is positive.  The S&P CDO Monitor Test will be
considered to be improved if the Class A Note Default Differential of the
Proposed Portfolio is greater than the Class A Note Default Differential
of the Current Portfolio, the Class B Note Default Differential of the
Proposed Portfolio is greater than the Class B Note Default Differential
of the Current Portfolio, the Class C Note Default Differential of the
Proposed Portfolio is greater than the Class C Note Default Differential
of the Current Portfolio, the Class D Note Default Differential of the
Proposed Portfolio is greater than the Class D Note Default Differential
of the Current Portfolio, the Class E Note Default Differential of the
Proposed Portfolio is greater than the Class E Note Default Differential
of the Current Portfolio, the Class F Note Default Differential of the
Proposed Portfolio is greater than the Class F Note Default Differential
of the Current Portfolio, and the Class G Note Default Differential of the
Proposed Portfolio is greater than the Class G Note Default Differential
of the Current Portfolio.


 


S&P Industry Classification
Group means any of the S&P industrial classification
groups as set forth on Schedule H and any additional classification groups
established by S&P with respect to the Collateral Interests and provided,
in each case, by the Collateral Manager or S&P to the Trustee.


 


S&P Letter means
that certain letter dated December 10, 2004, from S&P to Northstar
Capital (as predecessor in interest to Northstar Realty Finance Corp.).


 


S&P Minimum Average Recovery
Rate means, as of any date or determination, a rate
expressed as a percentage equal to the number obtained by (i) summing the
products obtained by multiplying the Principal Balance of each Collateral
Interest by its S&P Recovery Rate set forth in a schedule of the Indenture
and (ii) dividing such sum by the Collateral Interest Principal Balance
less cash and Eligible Investments representing Collateral Principal
Collections and (iii) rounding up to the first decimal place.


 


S&P Minimum Average Recovery
Rate Test means a test that will be satisfied as of any
Measurement Date if the S&P Minimum Average Recovery Rate is greater than
or equal to (i) 27.30% with respect to the Class A Notes, (ii) 27.60%
with respect to the Class B Notes, (iii) 27.70% with respect to the Class C
Notes, (iv) 29.90% with respect to the Class D Notes, (v) 29.90%
with respect to the Class E Notes, (vi) 31.20% with respect to the Class F
Notes and (vii) 32.50% with respect to the Class G Notes.


 


S&P’s Preferred Format means
an electronic spreadsheet file to be provided to S&P, which file shall
include the following information, if available (to the extent such information
is not confidential) with respect to each Collateral Interest: (a) the
name and country of domicile of the issuer thereof and the particular issue
held by the Issuer, (b) the CUSIP or other applicable identification
number associated with such Collateral Interest, (c) the par value of such
Collateral Interest, (d) the type of issue (including, by way of example,
whether such Collateral Interest is a bond, loan or asset-backed security),
using such abbreviations as may be selected by the Trustee, (e) a description
of the index or other applicable benchmark upon which the interest payable on
such Collateral Interest is based (including, by way of example, fixed rate,
step-up rate, zero coupon and LIBOR), (f) the coupon (in the case of a
Collateral Interest which bears interest at a fixed rate) or the spread
over the applicable index (in the case of a Collateral Interest which bears
interest at a floating rate), (g) the S&P Industry Classification
Group for such Collateral Interest, (h) the Stated Maturity Date of such
Collateral Interest, (i) the S&P Rating of such Collateral Interest or
the issuer thereof, as applicable, (j) the priority category assigned by
S&P to such Collateral Interest, if available and (k) such other
information as the Trustee may determine to include in such file.


 


38

















 


S&P
Rating means a rating of any Collateral Interest
determined as follows:


 


(a)                                  if
S&P has assigned a rating to such Collateral Interest either publicly or
privately (in the case of a private rating, with the written consent of the
issuer of such Collateral Interest for use of such private rating and delivery
of a copy of such consent to S&P), the S&P Rating shall be the rating
assigned thereto by S&P; provided  that, solely for purposes of determining compliance with
the S&P CDO Monitor Test, if such Collateral Interest is placed on a watch
list for possible upgrade or downgrade by S&P, the S&P Rating
applicable to such Collateral Interest shall be one rating subcategory above or
below, respectively, the S&P Rating applicable to such Collateral Interest
immediately prior to such Collateral Interest being placed on such watch list;


 


(b)                                 if
such Collateral Interest is not rated by S&P but the Issuer or the
Collateral Manager on behalf of the Issuer has requested that S&P assign a
rating to such Collateral Interest, the S&P Rating shall be the rating so
assigned by S&P; provided that
pending receipt from S&P of such rating, if such Collateral Interest is not
eligible for notching in accordance with a Schedule G hereto, such Collateral
Interest shall have a S&P Rating of “CCC-,” otherwise such S&P Rating
shall be the rating assigned according to Schedule F hereto until such time as
S&P shall have assigned a rating thereto; or


 


(c)                                  if
any Collateral Interest is a Collateral Interest that has not been assigned a
rating by S&P and is not a Collateral Interest listed in Schedule G hereto,
as identified by the Collateral Manager, refer to Schedule F hereto to
determine the S&P Rating; provided that (i) if
any Collateral Interest shall, at the time of its purchase by the Issuer, be
listed for a possible upgrade or downgrade on either Moody’s or S&P’s then
current credit rating watch list, then the S&P Rating of such Collateral
Interest shall be one subcategory above or below, respectively, the rating then
assigned to such item in accordance with Schedule F hereto; (ii) for
purposes of determining compliance with S&P CDO Monitor Test, if the rating
assigned to such Collateral Interest pursuant to this subparagraph (c) is
placed on a watch list for possible upgrade or downgrade by any Rating Agency,
the S&P Rating applicable to such Collateral Interest shall be one rating
subcategory above or below, respectively, the S&P Rating applicable to such
Collateral Interest immediately prior to such Collateral Interest being placed
on such watch list and (iii) the aggregate Principal Balance that may be
given a rating based on this subparagraph (iii) may not exceed 20% of the
aggregate Principal Balance of all Collateral Interests; provided
that if any Collateral Interest has not been assigned a rating by S&P and
is a type of Collateral Interest not listed on Schedule G hereto, subsequent to
the Closing Date, (A) the acquisition of any such Collateral Interest will
require an estimate or shadow rating from S&P, the assignment of an S&P
Recovery Rate to such Collateral Interest and receipt of Rating Agency
Confirmation from S&P prior to the acquisition by the Issuer of such
Collateral Interest or (B) the Collateral Administrator may use the
tranched ratings determined in accordance with Schedule I for Collateral
Interests represented by Commercial Mortgage Loans, Subordinate Mortgage Loan
Interests and Mezzanine Loans representing up to 20% of the Collateral Interests
Principal Balance;


 


notwithstanding the foregoing, if any Collateral
Interest shall, at the time of its purchase by the Issuer, be listed for a
possible upgrade or downgrade on the then current S&P credit rating watch
list, then the S&P Rating of such Collateral Interest shall be one
subcategory above or below, respectively, the rating then assigned to such item
by S&P, as applicable; provided that if such Collateral Interest is removed
from such list at any time, it shall be deemed to have its then-current actual
rating by S&P.


 


39

















 


S&P Recovery Rate
means, with respect to a Collateral Interest on any Calculation Date, an amount
equal to the percentage for such Collateral Interest set forth in the S&P
Recovery Rate Matrix attached as a Schedule D (determined in accordance with
procedures prescribed by S&P for such Collateral Interest on such
Calculation Date or, in the case of Impaired Interests, the S&P Rating
immediately prior to default).


 


Sale has
the meaning specified in Section 5.17(a).


 


Sale Proceeds means
all proceeds (including accrued interest) received with respect to Collateral
Interests and Equity Interests as a result of sales of such Collateral
Interests and Equity Interests pursuant to the Indenture, net of any reasonable
amounts expended by the Collateral Manager or the Trustee in their good faith
determination in connection with such sale or disposition.


 


Schedule of Collateral Interests means
the list of Collateral Interests securing the Indenture Issued Notes that is
attached as Schedule A.


 


Scheduled Distribution means,
with respect to any Pledged Security, for each Due Date, the scheduled payment
in Cash of principal and/or interest and/or fees due on such Due Date with
respect to such Pledged Security, determined in accordance with the assumptions
specified in Section 1.2.


 


Second Currency has
the meaning specified in Section 14.13.


 


Secured Parties means
the Trustee, for the benefit of the Rated Noteholders (other than the Class G
Noteholders) and the Collateral Manager.


 


Securities Account has
the meaning specified in Section 8-501(a) of the UCC.


 


Securities Act means
the U.S. Securities Act of 1933, as amended.


 


Securities Intermediary has
the meaning specified in Section 8-102(a)(14) of the UCC.


 


Security has
the meaning specified in Section 8-102(a)(15) of the UCC.


 


Seller means  NRFC DB Holdings, LLC and its successors or assigns, in its
capacity as seller under the Asset Transfer Agreement or any other seller of
Collateral Interests acquired by the Issuer or the Underlying Trustee after the
Closing Date.


 


Semi-Annual Pay Security means
a security that provides for periodic payments of interest in Cash
semi-annually.


 


Semi-Annual Pay Security Interest
Reserve Amount means, with respect to each Collateral
Interest that is a Semi-Annual Pay Security, as of any Calculation Date, the
amount equal to (i) the amount of interest paid by the obligor on the most
recent payment date (or if no payment date has occurred, the estimated interest
payment due on the first payment date) with respect to such Semi-Annual Pay
Security multiplied by (ii) (A) the number of months until the next
payment date with respect to such Semi-Annual Pay Security minus one (rounded
up to the nearest whole number) divided by (B) six; provided
that for any Semi-Annual Pay Security with respect to which no scheduled
interest payments remain, the Semi-Annual Pay Security Interest Reserve Amount
shall be zero.


 


Senior Collateral Management Fee means
with respect to each Payment Date, a senior fee equal to the sum of (a) the
Monitoring Fee and (b) the Senior Structuring Fee payable to the
Collateral Manager pursuant to the Collateral Management Agreement; provided that the Senior Collateral Management Fee 


 


40

















 


will be payable on each Payment Date only to the
extent of funds available for such purpose in accordance with the Priority of
Payments.  Any unpaid Senior Collateral
Management Fee will be deferred and paid on the next succeeding Payment Date to
the extent funds are available for such purpose.  Any unpaid Senior Collateral Management Fee
that is deferred due to the operation of the Priority of Payments will not
accrue interest.  Any Senior Collateral
Management Fee accrued but not paid prior to the resignation or removal of the
Collateral Manager shall continue to be payable to the Collateral Manager on
the Payment Date immediately following the effectiveness of such resignation or
removal.


 


Senior Interests means  the interests in a Commercial Mortgage Loan which rank
senior in priority to the Subordinate Mortgage Loan Interests in the same
Commercial Mortgage Loan.


 


Senior Notes
means, with respect any Class of Notes (other than the Class A Notes)
the Class or Classes of Notes with a prior alphabetical designation.


 


Senior Structuring Fee
means, with respect to each Payment Date, an amount equal to 0.04875% per annum
of the Fee Basis Amount payable to the Collateral Manager pursuant to the
Collateral Management Agreement.


 


Servicing Agreement means
that certain Servicing Agreement, dated as of June 14, 2005, as the same
may be amended or supplemented from time to time, between Wachovia Bank,
National Association as servicer and Wells Fargo Bank, National Association as
underlying trustee.


 


Special Amortization Pro Rata
Condition means a condition that will be satisfied with
respect to any Payment Date on which either: (A) (I) the aggregate
Collateral Interest Principal Balance as of the related Calculation Date is at
least equal to 50% of the aggregate Collateral Interest Principal Balance on
the Closing Date, (II) the Collateral Quality Tests are satisfied, (III) no
Principal Coverage Test is failing as of such Payment Date and (IV) no
Principal Coverage Test has previously failed for two or more Calculation Dates
unless, as of the related Payment Date, the Principal Coverage Ratio related to
such Principal Coverage Test equals or exceeds the related Principal Coverage
Ratio in existence on the Closing Date; or (B) if clause (A) above is
not satisfied, Rating Agency Confirmation has been provided by Moody’s and
S&P with respect to the pro rata
payment of principal of the Rated Notes.


 


Specified Currency has
the meaning specified in Section 14.13.


 


Specified Person has
the meaning specified in Section 2.5(a).


 


Specified Place has
the meaning specified in Section 14.13.


 


Specified Types means
any Trust Certificate, CMBS, Real Estate CDO Security and REIT Debt Security.


 


Stated Maturity Date means
the Payment Date occurring in July 2040.


 


Subordinate Collateral Management
Fee means the fee payable to the Collateral Manager at a
per annum rate in arrears on each Payment Date pursuant to the Collateral
Management Agreement, in an amount (as certified by the Collateral Manager to
the Trustee) equal to 0.20% of the Fee Basis Amount for such Payment Date;
provided that the Subordinate
Collateral Management Fee will be payable on each Payment Date only to the
extent of funds available for such purpose in accordance with the Priority of Payments.  Any unpaid Subordinate Collateral Management
Fee will be deferred and paid on the next succeeding Payment Date to the extent
funds are available for such purpose. 
Any unpaid Subordinate Collateral Management Fee that is deferred due to
the operation of the Priority of Payments will not accrue interest.  Any Subordinate Collateral Management Fee
accrued but not paid prior to the resignation 


 


41

















 


or removal of the Collateral Manager shall continue to
be payable to the Collateral Manager on the Payment Date immediately following
the effectiveness of such resignation or removal.


 


Subordinate Mortgage Loan
Interests means subordinate interests in commercial
mortgage loans (including subordinate participation interests in commercial
mortgage loans) and subordinate commercial mortgage loans.


 


Subpool means
each of the groups of the Collateral Interests designated by the Collateral
Manager in accordance with the Auction Procedures on which the Listed Bidders
may provide a separate bid in an Auction.


 


Substitute Collateral Interest means
a debt obligation meeting the Eligibility Criteria acquired by or on behalf of
the Issuer with Collateral Principal Proceeds or Sale Proceeds that are
reinvested in accordance with the provisions of the Indenture.


 


Synthetic Security
means any swap transaction, debt security, security issued by a trust or
similar vehicle or other investment, the returns on which (as determined by the
Collateral Manager) are linked to the credit performance of a reference
obligation, but which may provide for a different maturity, payment date,
interest rate, credit exposure or other credit or non-credit related
characteristics from such reference obligation.


 


Taxed Collateral Interest
has the meaning specified in Section 7.7(e).


 


Taxes means
any present or future taxes, duties, assessments or governmental charges of
whatsoever nature imposed, levied, collected, withheld or assessed by any
governmental authority having power to tax.


 


Tax Event
means an event that will occur if (i) any obligor or withholding agent is,
or on the next scheduled payment date under any Collateral Interest, will be,
required to deduct or withhold from any payment under any Collateral Interest
to the Issuer (other than any commitment fee with respect to the unfunded
portion of any Earn-Out Assets) for or on account of any tax for whatever
reason and such obligor or withholding agent is not required to pay to the
Issuer such additional amount as is necessary to ensure that the net amount
actually received by the Issuer (free and clear of taxes, whether assessed
against such obligor or the Issuer) will equal the full amount that the Issuer
would have received had no such deduction or withholding been required, (ii) any
jurisdiction imposes net income, profits, or similar tax on the Issuer, (iii) the
Issuer being required to deduct or withhold from any payment under a Hedge
Agreement for or on account of any tax and the Issuer being obligated to make a
gross up payment (or otherwise pay additional amounts) to the Hedge
Counterparty or (iv) a Hedge Counterparty being required to deduct or
withhold from any payment under a Hedge Agreement for or on account of any tax
for whatever reason if such Hedge Counterparty is not required to pay to the
Issuer such additional amount as is necessary to ensure that the net amount
actually received by the Issuer (free and clear of taxes, whether assessed
against such obligor or the Issuer) will equal the full amount that the Issuer
would have received had no such deduction or withholding been required, and the
sum of the amount of (i) such a tax or taxes imposed on the Issuer or
withheld from payments to the Issuer to the extent the Issuer receives less
than the full amount that the Issuer would have received had no such deduction
occurred and (ii) such gross up payments required to be made by the Issuer
to the extent they exceed the amounts that the Issuer would have been required
to pay had no deduction or withholding been required, in the aggregate, equals
ten percent (10%) or more of the amount of aggregate interest payments on all
of the related Collateral Interests during the related Due Period.


 


Tax Redemption has
the meaning specified in Section 9.1(b).


 


42

















 


Tax Subsidiary
has the meaning specified in Section 7.7(e).


 


Tenant Lease Loan Interests
means commercial mortgage-backed securities that entitle the holders thereof to
receive payments that depend on the cash flow from a pool of commercial
mortgage loans made to finance the acquisition, construction and improvement of
properties primarily leased to tenants engaged in a business (or on the cash
flow from such leases), the underwriting of which is dependent primarily on the
creditworthiness of the related tenants; provided that
such dependence may in addition be conditioned upon rights or additional assets
designed to assure the servicing or timely distribution of proceeds to holders
of the commercial mortgage-backed securities such as a financial guaranty
insurance policy.


 


Transaction Documents means
the Indenture, the Collateral Management Agreement, the Account Control
Agreement, the Corporate Services Agreement, the Collateral Administration
Agreement, any Hedge Agreement and the Paying Agency Agreement.


 


Trust Certificate means
one or more trust certificates each of which represents an ownership interest
in the Underlying Trust created pursuant to the Master Trust Agreement, which
are secured by Subordinate Mortgage Loan Interests, Mezzanine Loans,
Participation Interests, Commercial Mortgage Loans, Credit Lease Loans and/or
Tenant Lease Loan Interests.


 


Trust Officer means,
when used with respect to the Trustee, any Officer within the Corporate Trust
Office working on the transaction described in this Indenture and (or any
successor group of the Trustee) authorized to act for and on behalf of the
Trustee, including any vice president, assistant vice president or other
Officer of the Trustee customarily performing functions similar to those performed
by the persons who at the time shall be such Officers, respectively, or to whom
any corporate trust matter is referred at the Corporate Trust Office because of
such person’s knowledge of and familiarity with the particular subject.


 


Trustee means
Wells Fargo Bank, National Association, and any successors or assigns, in its
capacity as trustee under this Indenture.


 


Trustee Expenses
means, with respect to any Payment Date, an amount equal to the sum of all
expenses or indemnities incurred by or otherwise owing to the Trustee during
the preceding Due Period in accordance with the Indenture, other than the
Trustee Fee, including, without limitation, any expenses or indemnities
incurred by the Trustee (and the Bank) in any of its capacities (including in
its capacity as Collateral Administrator, Calculation Agent, Note Paying Agent,
PAA Issued Note Paying Agent and Registrar).


 


Trustee Fee means,
with respect to any Payment Date, the fee payable to the Trustee in an
aggregate amount equal to 0.02% per annum of the Collateral Interest Principal
Balance as of the first day of the related Due Period; provided
that in no event shall, so long as any Class of Rated Notes
remains Outstanding, such fee be an annual amount less than U.S.$40,000.


 


Trustee Interest Advance Fee means,
a per annum fee payable to the Trustee in accordance with the Priority of
Payments on each Payment Date equal to 0.00125% of the outstanding principal
amount of the Class A Notes and the Class B Notes immediately prior
to such Payment Date.


 


UCC means
the Uniform Commercial Code as in effect in the State of New York.


 


43

















 


Underlying Instrument means
the agreement pursuant to which a Pledged Security has been issued or created
and each other agreement that governs the terms of or secures the obligations
represented by such Pledged Security or of which the holders of such Pledged
Security are the beneficiaries.


 


Underlying Trust means
the newly formed trust established pursuant to the Master Trust Agreement.


 


Underlying Trust Expenses
means, all reasonable expenses, disbursements and advances incurred or made by
the Underlying Trustee in accordance with any provision of the Master Trust
Agreement or in the administration or the enforcement of any provision thereof
(including the reasonable compensation, expenses and disbursements of its
agents and counsel) including, without limitation, any amounts in respect of
indemnification owed to the Underlying Trustee pursuant to Section 6.04 of
the Master Trust Agreement, but excluding any overhead or employee expenses of
the Underlying Trustee.


 


Underlying Trustee
means Wells Fargo Bank, National Association, in its capacity as underlying
trustee pursuant to the Master Trust Agreement, and any successor or successors
thereto.


 


Uninvested Proceeds means,
at any time, the net proceeds received by the Issuer on the Closing Date from
the initial issuance of the Rated Notes and Income Notes, to the extent such
proceeds have not theretofore been invested in Collateral Interests.


 


Uninvested Proceeds Account has
the meaning specified in Section 10.4.


 


United States or
U.S. means the United States of
America, including the States thereof and the District of Columbia.


 


Unregistered Securities has
the meaning specified in Section 5.17(c).


 


U.S. Person has
the meaning given in Regulation S under the Securities Act.


 


USA PATRIOT Act means
the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56
(2001).


 


Weighted Average Fixed Rate
Coupon means, as of any Measurement Date, the sum
(rounded up to the next 0.001%) obtained by (i) multiplying the Principal
Balance of each Fixed Rate Collateral Interest (except Collateral Interests
that are currently deferring interest) held in the portfolio as of such date by
the then-current interest rate, (ii) summing the amounts determined
pursuant to clause (i) for all Fixed Rate Collateral Interests held
in the portfolio as of such date and (iii) dividing such sum by the
aggregate Principal Balance of all Fixed Rate Collateral Interests held in the
portfolio as of such date; provided that
for purposes of calculating the Weighted Average Fixed Rate Coupon of
Collateral Interests that are Impaired Interests, the Written Down Amount with
respect to Written Down Interests and Equity Interests will be excluded, except
for those Impaired Interests that at the time of such calculation have fully
become current on all past due interest and scheduled principal and are paying
full current interest in cash pursuant to the terms of their respective
Underlying Instrument.


 


Weighted Average Life
means, on any Calculation Date with respect to all Collateral Interests
(excluding any Impaired Interests), the number obtained by the Collateral
Manager by (i) summing the products obtained by multiplying (a) the
Average Life at such time of each Collateral Interest by (b) the
outstanding Principal Balance of such Collateral Interest and (ii) dividing
such sum by the aggregate Principal Balance at such time of all Collateral
Interests.


 


44

















 


Weighted Average Life Test
means a test that shall be satisfied as of any Measurement Date during any
period set forth below if the Weighted Average Life of all Collateral Interests
as of such Measurement Date is less than or equal to 6.5 years.


 


Weighted
Average Spread means, as of any Measurement Date, the sum
(rounded up to the next 0.001%) of the number obtained by (i) summing the
products obtained by multiplying (A) for each Floating Rate Collateral
Interest (other than any Impaired Interest, Written Down Interest or Deferred
Interest PIK Bond), the stated spread above LIBOR at which interest accrues on
such Collateral Interest as of such date and, for each Deemed Floating Rate
Collateral Interest (other than any Impaired Interest, Written Down Interest or
Deferred Interest PIK Bond), the Deemed Floating Spread by (B) the
Principal Balance of such Collateral Interest as of such date and (ii) dividing
such sum by the aggregate Principal Balance of all Floating Rate Collateral
Interests and all Deemed Floating Rate Collateral Interests (excluding, in each
case, all Impaired Interests, Written Down Interests and Deferred Interest PIK
Bonds, except for those Impaired Interests that at the time of such calculation
have fully become current on all past due interest and scheduled principal and
are paying full current interest in cash pursuant to the terms of their
respective Underlying Instrument); provided, that
for purposes of calculating the Weighted Average Spread, each Earn-Out Asset
will be deemed to be two separate Floating Rate Collateral Interests:  (I) one with an outstanding principal
balance equal to the funded portion thereof and a stated interest rate spread
equal to the funded spread on such Earn-Out Asset and (II) the other with
an outstanding principal balance equal to the unfunded portion thereof and an
assumed stated interest rate spread equal to the commitment fee of such
Earn-Out Asset, less any withholding tax on such commitment fee.


 


Withholding
Tax Interest means a Collateral Interest if:


 


(i)                                     any
payments thereon to the Issuer (other than any commitment fee with respect to
the unfunded portion of any Earn-Out Assets) are subject to withholding tax
imposed by any jurisdiction (other than U.S. backup withholding tax or other
similar withholding tax); and


 


(ii)                                  under
the underlying documentation with respect to such Collateral Interest, the
issuer of or counterparty with respect to such Collateral Interest is not
required to make “gross-up” payments to the Issuer that cover the full amount
of such withholding tax on an after-tax basis.


 


Written Down Amount
means, with respect to each Written Down Interest, the amount by which the original
Principal Balance of such Written Down Interest is reduced as notified by or on
behalf of the related issuer or trustee to the holders of such Written Down
Interest (including appraisal reductions on CMBS).


 


Written Down Interest means
any Collateral Interest as to which the aggregate par amount of such Collateral
Interest and all other securities secured by the same pool of collateral that
rank pari passu with or senior in priority of
payment to such Collateral Interest exceeds the aggregate par amount (including
reserved interest or other amounts available for overcollateralization) of all
collateral securing such securities (excluding defaulted collateral); provided that the Issuer shall immediately send notice to
S&P by facsimile and e-mail upon any Collateral Interest becoming a Written
Down Interest.


 


45

















 


1.2.  ASSUMPTIONS AS TO
COLLATERAL INTERESTS, FEES, ETC.


 


The provisions set forth in this Section 1.2
shall be applied in connection with all calculations required to be made
pursuant to this Indenture with respect to Scheduled Distributions on any
Pledged Security, or any payments on any other assets included in the
Collateral, and with respect to the income that can be earned on Scheduled
Distributions on such Pledged Securities and on any other amounts that may be
received for deposit in the Collection Account.


 


(a)                                  All
calculations with respect to Scheduled Distributions on the Pledged Securities
securing the Indenture Issued Notes shall be made by the Issuer or the
Collateral Administrator on behalf of the Issuer using (in the case of the
Collateral Interests) the assumptions that (i) no Pledged Security
defaults or is sold, (ii) prepayment of any Pledged Security during any
month occurs at a rate equal to the average rate of prepayment during the
period of six consecutive months immediately preceding the current month (or,
with respect to any Pledged Security that has not been outstanding for at least
six consecutive calendar months, at the rate of prepayment assumed at the time
of issuance of such Pledged Security), (iii) any clean-up call with
respect to a Pledged Security will be exercised when economic to the Person or
Persons entitled to exercise such call and (iv) no other optional
redemption of any Pledged Security will occur except for those that have
actually occurred or as to which irrevocable notice thereof shall have been
given.


 


(b)                                 For
purposes of determining compliance with the Interest Coverage Tests, except as
otherwise specified in the Interest Coverage Tests, there shall be excluded all
payments in respect of Impaired Interests and Deferred Interest PIK Bonds
unless the Trustee or Collateral Manager has actual knowledge such payments
will be made in Cash and will be received on or before the Due Date therefor
and all other scheduled payments (whether of principal, interest, fees or other
amounts) including payments to the Issuer under any Hedge Agreement, as to
which the Trustee or Collateral Manager has actual knowledge will not be made
in Cash or will not be received when due. 
For purposes of calculating the applicable Interest Coverage Ratio:


 


(1)                                  the
expected interest income on Collateral Interests and Eligible Investments and
the expected interest payable on the Rated Notes and amounts, if any, payable
under a Hedge Agreement will be calculated using the interest rates applicable
thereto on the applicable date of determination;


 


(2)                                  accrued
original issue discount on Eligible Investments will be deemed to be a
scheduled interest payment thereon due on the date such original issue discount
is scheduled to be paid; and


 


(3)                                  it
will be assumed that no principal payments are made on the Rated Notes during
the applicable periods.


 


(c)                                  For
each Due Period, the Scheduled Distribution on any Pledged Security (other than
(i) an Impaired Interest, (ii) a Deferred Interest PIK Bond or (iii) an
Equity Interest, which, in each case except as otherwise provided herein, shall
be assumed to have a Scheduled Distribution of zero and with respect to any
Written Down Interest, the Interest Coverage Amount shall exclude any interest
accrued on any Written Down Amount) shall be the sum of (x) the total
amount of payments and collections in respect of such Pledged Security
(including the proceeds of the sale of such Pledged Security received during
the 


 


46

















 


Due Period) that, if paid as scheduled, will be
available in the Collection Account at the end of the Due Period for payment on
the Rated Notes or other amounts payable pursuant to this Indenture and of
certain expenses of the Issuer and the Co-Issuer plus (y) any
such amounts received in prior Due Periods that were not disbursed on a
previous Payment Date (provided that
such sum shall be computed without regard to any amounts excluded from the
determination of compliance with the Coverage Tests pursuant to Section 1.2(b)).


 


(d)                                 Subject
to Section 1.2(b), each Scheduled Distribution receivable with respect to
a Pledged Security shall be assumed to be received on the applicable Due Date,
and each such Scheduled Distribution shall be assumed to be immediately
deposited in the Collection Account and, except as otherwise specified, to earn
interest at the Assumed Reinvestment Rate. 
All such funds shall be assumed to continue to earn interest until the
date on which they are required to be available in the Collection Account for
transfer to the Payment Account and application, in accordance with the terms
hereof, to payments of principal of or interest on the Rated Notes or other
amounts payable pursuant to this Indenture.


 


(e)                                  With
respect to any Collateral Interest as to which any interest or other payment
thereon is subject to withholding tax of any Relevant Jurisdiction, each
Distribution thereon shall, for purposes of the Coverage Tests and each
Collateral Quality Test, be deemed to be payable net of such withholding tax
unless the issuer thereof or obligor thereon is required to make additional
payments sufficient on an after tax basis to cover any withholding tax imposed
on payments to the Issuer with respect thereto (including in respect of any
such additional payment).  On any date of
determination, the amount of any Scheduled Distribution due on any future date
shall be assumed to be made net of any such uncompensated withholding tax based
upon withholding tax rates in effect on such date of determination.


 


(f)                                    For
purpose of determining compliance with the Interest Coverage Tests, it will be
assumed that any amount required to be paid for taxes, filing and registration
fees on the Payment Date immediately following the relevant Due Period shall be
equal to the aggregate amount for which the Trustee has received an invoice or
demand for payment on or prior to the relevant Measurement Date.


 


(g)                                 Any
reference in the definition of “Trustee Fee,” “Senior Collateral Management Fee”
or “Subordinate Collateral Management Fee” in Section 1.1(a) to an
amount calculated with respect to a period at a per annum rate shall be
computed on the basis of a 360 day year of twelve 30-day months.


 


(h)                                 Unless
otherwise specified, test calculations that evaluate to a percentage will be
rounded to the nearest one-hundredth, and test calculations that evaluate to a
number or decimal will be rounded to the nearest one hundredth.


 


(i)                                     Unless
otherwise specified, all calculations required to be made and all reports which
are to be prepared pursuant to this Indenture with respect to the Collateral
Interests, shall be made on the basis of the date on which the Issuer makes a
commitment to acquire or to sell an asset, as applicable (the trade date), not the settlement date
for such sale.


 


47














 


(j)                                     For
the purpose of determining fees constituting Administrative Expenses payable
under the Priority of Payments hereunder, periods longer or shorter than a
one-month period shall be prorated based on the number of days in such period.


 


1.3.      RULES OF CONSTRUCTION


 


Unless the context otherwise clearly requires:


 


(a)                                  the
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined;


 


(b)                                 whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms;


 


(c)                                  the
words “include”, “includes” and “including” shall be deemed to be followed by
the phrase “without limitation”;


 


(d)                                 the
word “will” shall be construed to have the same meaning and effect as the word “shall”;


 


(e)                                  any
definition of or reference to any agreement, statute, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein);


 


(f)                                    any
reference herein to any Person, or to any Person in a specified capacity, shall
be construed to include such Person’s successors and assigns or such Person’s
successors in such capacity, as the case may be; and


 


(g)                                 all
references in this instrument to designated “Sections”, “clauses” and other
subdivisions are to the designated Sections, clauses and other subdivisions of
this instrument as originally executed, and the words “herein”, “hereof”, “hereunder”
and other words of similar import refer to this Indenture as a whole and not to
any particular Section, clause or other subdivision.


 


ARTICLE II


 


THE INDENTURE ISSUED NOTES


 


2.1.      FORMS GENERALLY


 


(a)                                  The
Class A Notes, the Class B Notes, the Class C Notes, the Class D
Notes and the Class E Notes offered and sold in reliance on Regulation S
(each, a Regulation S Note) shall be issued in fully
Registered form without interest coupons substantially in the form of the note
attached as Exhibit A-1 (each, a Regulation S Global Note) with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and such legends as may be applicable thereto,
which shall be deposited with the Trustee at its Corporate Trust Office in
Minneapolis, Minnesota, as custodian for DTC and registered in the name of DTC
or a nominee of DTC, duly executed by the Co-Issuers and authenticated by the
Trustee or the Authenticating Agent as hereinafter provided.  The Aggregate Outstanding Amount of each
Regulation S 


 


48

















 


Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
DTC or its nominee, as the case may be.


 


(b)                                 The
Class A Notes, the Class B Notes, the Class C Notes, the Class D
Notes and the Class E Notes and sold in the United States pursuant to an
exemption from the registration requirements of the Securities Act (Rule 144A Notes) shall be
issued in fully Registered form without interest coupons substantially in the
form of the note attached as Exhibit A-2 (each, a Rule 144A
Global Note), with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and such legends as may be applicable thereto, which shall be
deposited with the Trustee at its Corporate Trust Office, as custodian for DTC
and registered in the name of DTC or a nominee of DTC, duly executed by the
Co-Issuers and authenticated by the Trustee or the Authenticating Agent as
hereinafter provided.  The Aggregate
Outstanding Amount of each Rule 144A Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC or its nominee, as the case may be.


 


(c)                                  Regulation
S Global Notes and Rule 144A Global Notes may also be exchanged under the
limited circumstances set forth in Section 2.4 for notes in definitive
fully Registered form without interest coupons (each, a Certificates
Class A-E Note), which may be either a Regulation S
Certificated Class A-E Note or a Rule 144A Certificated Class A-E
Note, with such legends as may be applicable thereto, which shall be duly
executed by the Issuer and the Co-Issuer and authenticated by the Trustee or
the Authenticating Agent as hereinafter provided.


 


(d)                                 The
Class F Notes offered or sold in the United States or to U.S. Persons
pursuant to Rule 144A or another applicable exemption from registration
under the Securities Act shall be issued in the form of physical certificates
in definitive fully Registered form without interest coupons substantially in
the form of the certificated note attached as Exhibit B (each, a Certificated Class F Note) with
such legends as may be applicable thereto, which shall be duly executed by the
Issuer and authenticated by the Trustee or the Authenticating Agent as
hereinafter provided.


 


(e)                                  The
Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) and the Issuer (in the case of the Class F Notes) in issuing the
Indenture Issued Notes may use “CUSIP” or “private placement” numbers (if then
generally in use), and, if so, the Trustee will indicate the “CUSIP” or “private
placement” numbers of the Indenture Issued Notes in notices of redemption and
related materials as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Indenture Issued Notes or as contained
in any notice of redemption and related materials.


 


2.2.      AUTHORIZED AMOUNT; APPLICABLE
PERIODIC INTEREST RATE; STATED MATURITY DATE; DENOMINATIONS


 


(a)                                  The
aggregate principal amount of Indenture Issued Notes which may be issued under this
Indenture may not exceed U.S.$320,000,000, excluding Indenture Issued Notes
issued upon registration of, transfer of, or in exchange for, or in lieu of,
other Indenture Issued Notes pursuant to Section 2.4, 2.5 or 8.5.


 


49

















 


(b)                                 The
Rated Notes shall be divided into seven Classes having designations, original
principal amounts, original Applicable Periodic Interest Rates and Stated
Maturities as follows:


 




	
  Designation

  	
   

  	
  Original Principal

  Amount

  	
   

  	
  Applicable

  Periodic Interest

  Rate

  	
   

  	
  Indenture Issued

  Note Stated

  Maturity Date

  	
   

  
	
  Class A Notes

  	
   

  	
  U.S.$185,000,000

  	
   

  	
  LIBOR + 0.35%

  	
   

  	
  2040

  	
   

  
	
  Class B Notes

  	
   

  	
  U.S.$32,600,000

  	
   

  	
  LIBOR + 0.45%

  	
   

  	
  2040

  	
   

  
	
  Class C Notes

  	
   

  	
  U.S.$31,800,000

  	
   

  	
  LIBOR + 0.75%

  	
   

  	
  2040

  	
   

  
	
  Class D Notes

  	
   

  	
  U.S.$38,600,000

  	
   

  	
  LIBOR + 1.60%

  	
   

  	
  2040

  	
   

  
	
  Class E Notes

  	
   

  	
  U.S.$12,000,000

  	
   

  	
  LIBOR + 1.75%

  	
   

  	
  2040

  	
   

  
	
  Class F Notes

  	
   

  	
  U.S.$20,000,000

  	
   

  	
  7.00%

  	
   

  	
  2040

  	
   

  
	
  Class G Notes

  	
   

  	
  U.S.$20,000,000

  	
   

  	
  7.00%

  	
   

  	
  2040

  	
   

  






 


The Indenture Issued Notes will be issuable in minimum
denominations of U.S.$500,000 and, in each case, only in integral multiples of
U.S.$1,000 in excess of such minimum denominations.  After issuance, (x) an Indenture Issued
Note may fail to be in compliance with the minimum denomination requirement as
a result of the repayment of principal thereon in accordance with the Priority
of Payments and (y) the Class B Notes, the Class C Notes, the Class D
Notes, the Class E Notes or the Class F Notes may fail to be in an
amount which is an integral multiple of U.S.$1,000 due to the addition to the
principal amount thereof of deferred interest.


 


(c)                                  Interest
shall accrue on the Aggregate Outstanding Amount of each Class of
Indenture Issued Notes (determined as of the first day of each Interest Period
and after giving effect to any payment of principal occurring on such day) from
the Closing Date and will be payable in arrears on each Payment Date.  Interest on each Class of Indenture
Issued Notes and interest on Defaulted Interest will be calculated in
accordance with the definition of Periodic Interest.


 


(d)                                 The
Indenture Issued Notes shall be redeemable as provided in Section 9.


 


(e)                                  The
Depositary for the Global Notes shall initially be DTC.


 


(f)                                    The
Indenture Issued Notes shall be numbered, lettered or otherwise distinguished
in such manner as may be consistent herewith, determined by the Authorized
Officers of the Co-Issuers (in the case of the Indenture Issued Notes other
than the Class F Notes) and the Issuer (in the case of the Class F
Notes) executing such Indenture Issued Notes as evidenced by their execution of
such Indenture Issued Notes.


 


2.3.      EXECUTION, AUTHENTICATION,
DELIVERY AND DATING


 


(a)                                  The
Indenture Issued Notes (other than the Class F Notes) shall be executed on
behalf of the Co-Issuers by an Authorized Officer of each of the
Co-Issuers.  The Class F Notes shall
be executed on behalf of the Issuer by an Authorized Officer of the
Issuer.  The


 


50

















 


signatures of such Authorized Officers on the
Indenture Issued Notes may be manual or facsimile (including in counterparts).


 


(b)                                 Indenture
Issued Notes bearing the manual or facsimile signatures of individuals who were
at any time the Authorized Officers of either of the Co-Issuers shall bind such
Person, notwithstanding the fact that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Indenture Issued Notes or did not hold such offices at the date of issuance of
such Indenture Issued Notes.


 


(c)                                  At
any time and from time to time after the execution and delivery of this
Indenture, the Co-Issuers may deliver Indenture Issued Notes (other than the Class F
Notes) executed by the Co-Issuers and the Issuer may deliver the Class F
Notes executed by the Issuer, to the Trustee or the Authenticating Agent for
authentication, and the Trustee or the Authenticating Agent, upon Issuer Order,
shall authenticate and deliver such Indenture Issued Notes as provided in this
Indenture and not otherwise.


 


(d)                                 Each
Indenture Issued Note authenticated and delivered by the Trustee or the
Authenticating Agent to or upon Issuer Order on the Closing Date shall be dated
as of the Closing Date.  All other
Indenture Issued Notes that are authenticated after the Closing Date for any
other purpose under this Indenture shall be dated the date of their
authentication.


 


(e)                                  Indenture
Issued Notes issued upon transfer, exchange or replacement of other Indenture
Issued Notes shall be issued in authorized denominations reflecting the
original aggregate principal amount of the Indenture Issued Notes so
transferred, exchanged or replaced, but shall represent only the current
Aggregate Outstanding Amount of the Indenture Issued Notes so transferred,
exchanged or replaced.  In the event that
any Indenture Issued Note is divided into more than one Indenture Issued Note
in accordance with this Section 2, the original principal amount of such
Indenture Issued Note shall be proportionately divided among the Indenture
Issued Notes delivered in exchange therefor and shall be deemed to be the
original aggregate principal amount of such subsequently issued Indenture
Issued Notes.


 


(f)                                    No
Indenture Issued Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Indenture
Issued Note a certificate of authentication (the Certificate
of Authentication), substantially in the form provided for
herein, executed by the Trustee or by the Authenticating Agent by the manual
signature of one of their Authorized Officers, and such certificate upon any
Indenture Issued Note shall be conclusive evidence, and the only evidence, that
such Indenture Issued Note has been duly authenticated and delivered hereunder.


 


2.4.      REGISTRATION, TRANSFER AND
EXCHANGE OF INDENTURE ISSUED NOTES


 


(a)                                  Registration of Indenture Issued Notes. 
The Trustee is hereby appointed as the registrar hereunder
(the Note Registrar).  The Trustee is hereby appointed as a transfer
agent with respect to the Indenture Issued Notes (the Note
Transfer Agent).  The Note
Registrar shall (acting solely for this purpose as agent for the Issuer) keep a
register (the Note Register) at the
Corporate Trust Office in which, subject to such reasonable regulations as it
may prescribe, the Note Registrar shall provide for the registration of
Indenture Issued Notes and the registration of transfers of Indenture Issued
Notes.  Upon any resignation or removal
of the Note Registrar, the Issuer (after consultation with the


 


51

















 


Collateral Manager) shall propose a replacement for
approval by the Holders of a Majority of the then Aggregate Outstanding Amount
of the Notes of the Controlling Class. 
The Co-Issuers may not terminate the appointment of the Note Registrar
or any Note Transfer Agent without the consent of each Holder of Indenture
Issued Notes.


 


Subject to this Section 2.4, upon surrender for
registration of transfer of any Indenture Issued Notes (other than the Class F
Notes) at the office or agency of the Co-Issuers (or in the case of the Class F
Notes, the Issuer) to be maintained as provided in Section 7.2, the
Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) or the Issuer (in the case of the Class F Notes) shall execute, and
the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Indenture Issued Notes of any
authorized denomination and of a like aggregate principal amount.


 


At the option of the Holder, Indenture Issued Notes
may be exchanged for Indenture Issued Notes of like terms, in any authorized
denominations and of like aggregate principal amount, upon surrender of the
Indenture Issued Notes to be exchanged at such office or agency.  Whenever any Indenture Issued Note is
surrendered for exchange, the Co-Issuers (in the case of the Indenture Issued
Notes other than the Class F Notes) or the Issuer (in the case of the Class F
Notes) shall execute and the Trustee shall authenticate and deliver the
Indenture Issued Notes that the Indenture Issued Noteholder making the exchange
is entitled to receive.


 


All Indenture Issued Notes issued and authenticated
upon any registration of transfer or exchange of Indenture Issued Notes shall
be the valid obligations of the Co-Issuers (in the case of the Indenture Issued
Notes other than the Class F Notes) or the Issuer (in the case of the Class F
Notes), evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Indenture Issued Notes surrendered upon such registration of
transfer or exchange.


 


Every Indenture Issued Note presented or surrendered
for registration of transfer or exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) or the Issuer (in the case of the Class F Notes) and the Note
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.


 


No service charge shall be made to a Holder for any
registration of transfer or exchange of Indenture Issued Notes, but the Trustee
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith and delivery charges, if any, not made by
regular mail.


 


(b)                                 Transfers of Class A Notes, Class B Notes, Class C
Notes, Class D Notes and Class E Notes


 


(1)                                  Subject
to Section 2.4(b)(4), exchanges or transfers of beneficial interests in a
Global Note may be made only in accordance with the rules and regulations
of the Depositary and the transfer restrictions contained in the legend on such
Global Note and exchanges or transfers of interests in a Global Note may be
made only in accordance with the following:


 


52

















 


(i)                                     Subject
to Section 2.4(b)(1)(ii) through (vi), transfers of a Global Note
shall be limited to transfers of such Global Note in whole, but not in part, to
nominees of the Depositary or to a successor of the Depositary or such
successor’s nominee.


 


(ii)                                  The
Trustee shall cause the exchange or transfer of any beneficial interest in a
Regulation S Global Note for a beneficial interest in a Rule 144A Global
Note upon provision to the Trustee and the Co-Issuers of a written
certification in the form of Exhibit C-1 (a Rule 144A
Transfer Certificate).


 


(iii)                               The Trustee shall cause
the exchange or transfer of any beneficial interest in a Rule 144A Global
Note for a beneficial interest in a Regulation S Global Note upon provision to
the Trustee and the Co-Issuers of a written certification substantially in the
form of Exhibit C-2 (a Regulation S Transfer
Certificate).


 


(iv)                              An
owner of a beneficial interest in a Regulation S Global Note may transfer such
interest in the form of a beneficial interest in such Regulation S Global Note
without the provision of written certification; provided that
(1) such transfer is made to a Person who is not a U.S. Person in an
offshore transaction in reliance on an exemption from the registration
requirements of the Securities Act under Regulation S and (2) the
transferee, by purchase of such interest in such Regulation S Global Note, will
be deemed to have made all representations, warranties and acknowledgements set
forth in the Regulation S Transfer Certificate.


 


(v)                                 An
owner of a beneficial interest in a Rule 144A Global Note may transfer
such interest in the form of a beneficial interest in such Rule 144A
Global Note without the provision of written certification; provided that the transferee, by purchase of such interest
in such Rule 144A Global Note, will be deemed to have made all
representations, warranties and acknowledgements set forth in the Rule 144A
Transfer Certificate.


 


(vi)                              In
the event Certificated Class A-E Notes are issued pursuant to Section 2.4(b)(5),
the Trustee shall cause the transfer of (i) any beneficial interest in a
Global Note for a Certificated A-E Note that is a Regulation S Note (a Regulation S Certificated Note),
upon provision to the Trustee and the Issuer of a Regulation S Transfer Certificate
or (ii) any beneficial interest in a Global Note for a Certificated A-E
Note that is a Rule 144A Note (a Rule 144A
Certificated Note), upon provision to the Trustee, the
Co-Issuers and the Note Registrar of a Rule 144A Transfer Certificate.


 


(2)                                  Subject
to Section 2.4(b)(4), in the event Certificated Class A-E Notes are
issued pursuant to Section 2.4(b)(5), the Trustee shall cause the transfer
of (i) any Certificated A-E Note for a beneficial interest in a Regulation
S Global Note, upon provision to the Trustee and the Issuer of a Regulation S
Transfer Certificate or (ii) any Certificated A-E Note for a beneficial
interest in a Rule 144A Global Note, upon provision to the Trustee and the
Co-Issuers of a Rule 144A Transfer Certificate.


 


53

















 


(3)                                  Upon
acceptance for exchange or transfer of a beneficial interest in a Global Note
for a Certificated A-E Note, or upon acceptance for exchange or transfer of a
Certificated A-E Note for a beneficial interest in a Global Note, each as
provided herein, the Trustee shall approve the instruction at the Depositary to
adjust the principal amount of such Global Note on its records to evidence the
date of such exchange or transfer and the change in the principal amount of such
Global Note.


 


(4)                                  Subject
to the restrictions on transfer and exchange set forth in this Section 2.4
and to any additional restrictions on transfer or exchange specified in the
Certificated Class A-E Notes, the Holder of any Certificated A-E Note may
transfer or exchange the same in whole or in part (in a principal amount equal
to the minimum authorized denomination or any larger authorized amount) by
surrendering such Certificated A-E Note at the Corporate Trust Office or at the
office of any Note Transfer Agent, together with (x) in the case of any
transfer, an executed instrument of assignment and (y) in the case of any
exchange, a written request for exchange. 
Following a proper request for transfer or exchange, the Trustee shall (provided it has available in its possession an inventory of
Certificated Class A-E Notes), within five Business Days of such request
if made at such Corporate Trust Office, or within ten Business Days if made at
the office of a Note Transfer Agent (other than the Trustee), authenticate and
make available at such Corporate Trust Office or at the office of such Note
Transfer Agent, as the case may be, to the transferee (in the case of transfer)
or Indenture Issued Noteholder (in the case of exchange) or send by first
class mail (at the risk of the transferee in the case of transfer or Indenture
Issued Noteholder in the case of exchange) to such address as the
transferee or Indenture Issued Noteholder, as applicable, may request, a
Certificated A-E Note or Notes, as the case may require, for a like aggregate
principal amount and in such authorized denomination or denominations as may be
requested.  The presentation for transfer
or exchange of any Certificated Note shall not be valid unless made at the
Corporate Trust Office or at the office of a Note Transfer Agent or by a duly
authorized attorney-in-fact.  Beneficial
interests in Global Notes shall be exchangeable for Certificated Class A-E
Notes only under the limited circumstances described in Section 2.4(b)(5).


 


(5)                                  Interests
in a Global Note deposited with or on behalf of the Depositary pursuant to Section 2.1
hereunder shall be transferred (A) to the Beneficial Owners thereof in the
form of Certificated Class A-E Notes only if such transfer otherwise
complies with this Section 2.4 (including Section 2.4(b)(1) and (2) and
(1) the Depositary notifies the Issuer that it is unwilling or unable to
continue as Depositary for the Indenture Issued Notes, (2) the Depositary
ceases to be a “clearing agency” registered under the Exchange Act and a
successor Depositary is not appointed by the Issuer within 90 days of such
notice or (3) as a result of any amendment to or change in the laws or
regulations of the Cayman Islands, or of any authority therein or thereof
having power to tax, or in the interpretation or administration of such laws or
regulations which become effective on or after the Closing Date, the Issuer,
the Trustee or any Note Paying Agent becomes aware that it is or will be
required to make any deduction or withholding from any payment in respect of
the Global Notes which would not be required if the Global Notes were not
represented by a global certificate or (B) to the purchaser thereof 


 


54

















 


in the form of one or more Certificated Notes in
accordance with the provisions of Section 2.4(b)(1).


 


(6)                                  If
interests in any Global Note are to be transferred to the Beneficial Owners
thereof in the form of Certificated Class A-E Notes pursuant to Section 2.4(b)(5),
such Global Note shall be surrendered by the Depositary, or its custodian on
its behalf, to the Corporate Trust Office or to the Note Transfer Agent located
in Minneapolis, Minnesota and the Trustee shall authenticate and deliver
without charge, upon such transfer of interests in such Global Note, an equal
aggregate principal amount of Certificated Notes of authorized
denominations.  The Certificated Class A-E
Notes transferred pursuant to this Section 2.4 shall be executed,
authenticated and delivered only in the denominations specified in Section 2.2(b) and
registered in such names as the Depositary shall direct in writing.


 


(7)                                  For
so long as one or more Global Notes are Outstanding:


 


(i)            the Trustee and its
directors, officers, employees and agents may deal with the Depositary for all
purposes (including the making of distributions on, and the giving of notices
with respect to, the Global Notes);


 


(ii)           unless otherwise
provided herein and subject to Section 2.4(b)(7)(i) above, the rights
of Beneficial Owners shall be exercised only through the Depositary and shall
be limited to those established by law and agreements between such Beneficial
Owners and the Depositary;


 


(iii)          for purposes of
determining the identity of and principal amount of Indenture Issued Notes
beneficially owned by a Beneficial Owner, the records of the Depositary shall
be conclusive evidence of such identity and principal amount and the Trustee
may conclusively rely on such records when acting hereunder;


 


(iv)          the Depositary will make
book-entry transfers among the Depositary Participants of the Depositary and
will receive and transmit distributions of principal of and interest on the
Global Notes to such Depositary Participants; and


 


(v)           the Depositary
Participants of the Depositary shall have no rights under this Indenture under
or with respect to any of the Global Notes held on their behalf by the
Depositary, and the Depositary may be treated by the Trustee and its agents,
employees, officers and directors as the absolute owner of the Global Notes for
all purposes whatsoever.


 


(8)           Each holder of a Class A
Note, Class B Note, Class C Note, Class D Note and Class E
Note (in each case, or an interest therein) shall represent or shall be deemed
to represent that either (A) it is not, and it is not acquiring such Note
or interest therein on behalf of or with “plan assets” (within the meaning of
Plan Asset Regulation) of, any employee benefit plan (within the meaning of Section 3(3) of
the ERISA) or plan (within the meaning of Section 4975 of the Code) 


 


55

















 


subject to ERISA or Section 4975 of the Code (or
any materially similar applicable law (“Similar Law”)),
including certain insurance company general accounts (each, a “Plan”), or (B)(I) such Note is
rated investment grade or better as of the date of acquisition, (II) the
holder believes that the Note is properly treated as indebtedness without
substantial equity features for purposes of the Plan Asset Regulation and
agrees to so treat such Note and (III) the holder’s acquisition, holding
and disposition of such Note will not constitute or result in a non-exempt
prohibited transaction under ERISA or Section 4975 of the Code (or Similar
Law).


 


(c)           Transfers of
Class F Notes.


 


(1)           If a holder of a beneficial interest in a Certificated Class F
Note wishes at any time to transfer its interest in such Certificated Class F
Note such holder may transfer or cause the transfer of such interest for an
equivalent beneficial interest in one or more such Certificated Class F
Notes, as provided below.  Upon receipt
by the Issuer and the Note Registrar of (A) such holder’s Certificated Class F
Note properly endorsed for assignment to the transferee and (B) a
certificate in the form of Exhibit C-3 (a Certificated
Class F Note Transfer Certificate) given by the transferee
of such beneficial interest, the Note Registrar shall cancel such Certificated Class F
Note record the transfer in the Note Register and authenticate and deliver one
or more Certificated Class F Notes bearing the same designation as the
related Certificated Class F Notes endorsed for transfer, registered in
the names specified in the assignment described in clause (A) above,
in principal amounts designated by the transferee (the aggregate of such
amounts being the same as the beneficial interest in the related Certificated Class F
Notes surrendered by the transferor) and in the minimum denominations and
integral multiples in excess thereof.  In
addition, the Note Registrar shall not register any transfer of any Certificated
Class F Notes to a proposed transferee that has represented that it is a
Benefit Plan Investor or a Controlling Person if the transfer would result in
Benefit Plan Investors owning 25% or more of the value of the Certificated Class F
Notes outstanding (as determined without regard to interests held by
Controlling Persons, and otherwise contemplated by the applicable regulations
under ERISA) immediately after such transfer, based on assurances received from
investors.  Without limiting the
generality of the forgoing, the Note Registrar shall not register any transfer
of Certificated Class F Notes represented by Regulation S Notes to a
proposed transferee of such Certificated Class F Notes that has
represented that it is or may become a Benefit Plan Investor or a Controlling
Person.  Without limiting the generality
of the foregoing, a transfer of beneficial interests in a Certificated Class F
Note will not be permitted unless an ERISA Restriction Certificate
substantially in the form set forth in Exhibit C-4 is obtained from each
transferee of a Certificated Class F Note, for the benefit of the Issuer,
the Trustee and the Initial Purchasers, (i) in the case of a Certificated Class F
Note not represented by a Regulation S Note, regarding whether it is, or is not
and will not be, a Benefit Plan Investor or Controlling Person, or (ii) in
the case of a Certificated Class F Note or represented by a Regulation S
Note, to the effect that it is not and will not be a Benefit Plan Investor or
Controlling Person.  Any purported
transfer in violation of the foregoing requirements shall be null and void ab initio, and the Note Registrar shall not register
any such purported transfer and shall not authenticate and deliver such
Certificated Class F Notes.


 


56














 


(2)                                  If
a holder of a beneficial interest in one or more Certificated Class F
Notes wishes at any time to exchange its interest in such related Certificated Class F
Notes for an interest in one or more such Certificated Class F Notes of
different principal amounts, such holder may exchange or cause the exchange of
such interest for an equivalent beneficial interest in the Certificated Class F
Notes bearing the same designation as the related Certificated Class F
Notes endorsed for exchange as provided below. 
Upon receipt by the Note Registrar of (A) such holder’s
Certificated Class F Notes properly endorsed for such exchange and (B) written
instructions from such holder designating the number and principal amounts of
the applicable Certificated Class F Notes to be issued (the aggregate
principal amounts of such Certificated Class F Notes being the same as the
Certificated Class F Notes surrendered for exchange), then the Note
Registrar shall cancel such Certificated Class F Notes, record the
exchange in the Note Register and authenticate and deliver one or more
Certificated Class F Notes bearing the same designation endorsed for
exchange, registered in the same names as the related Certificated Class F
Notes surrendered by such holder or such different names as are specified in
the endorsement described in clause (A) above, in different principal
amounts designated by such holder (the Class and the aggregate principal
amounts being the same as the beneficial interest in the Certificated Class F
Notes surrendered by such holder), and the minimum denominations and integral
multiples in excess.


 


(d)                                 Denominations; Qualified Purchaser
Status.  No Person may hold a
beneficial interest in any Indenture Issued Note except in a denomination
authorized for the Indenture Issued Notes of such Class under Section 2.2(b).  In addition, no transfer of an Indenture
Issued Note (or any interest therein) may be made to any Person that is a U.S.
Person unless such Person is (A) a Qualified Institutional Buyer and (B) a
Qualified Purchaser.  In addition, no
transfer of an Indenture Issued Note (or any interest therein) may be made to
any Person that is a U.S. Person unless such Person (A) was not formed for
the purpose of investing in either of the Co-Issuers (except when each beneficial
owner of the purchaser is a Qualified Purchaser, (B) has received the
necessary consent from its beneficial owners if it is a private investment
company formed before April 30, 1996, (C) is not a broker-dealer that
owns and invests on a discretionary basis less than U.S.$25,000,000 in
securities of unaffiliated issuers, (D) is not a pension, profit, sharing
or other retirement trust fund or plan in which the partners, beneficiaries or
participants, as applicable, may designate the particular investments to be
made, and in a transaction that may be effected without loss of any applicable
Investment Company Act exemption, (E) will provide notice to any
subsequent transferee of the transfer restrictions provided in the legend, (F) will
hold and transfer in a principal amount of not less than U.S.$500,000, for it
or for each account for which it is acting and (G) will provide the Issuer
from time to time such information as it may reasonably request in order to
ascertain compliance with the foregoing. 
Any purported transfer that is not in compliance with this Section 2.4
or the legends on the Indenture Issued Notes will be void ab initio,
and will not operate to transfer any rights to the transferee, notwithstanding
any instructions to the contrary to the Co-Issuers (in the case of the
Indenture Issued Notes other than the Class F Notes) or the Issuer (in the
case of the Class F Notes), the Trustee or any intermediary.  If any purported transfer of Indenture 


 


57

















 


Issued Notes or any beneficial interest therein to a
purported transferee does not comply with the requirements set forth in this Section 2.4
or the legends on the Indenture Issued Notes, then the purported transferor of
such Indenture Issued Notes or beneficial interest therein shall be required to
cause the purported transferee to surrender the Indenture Issued Notes or any
beneficial interest therein in return for a refund of the consideration paid
therefor by such transferee (together with interest thereon) or to cause the
purported transferee to dispose of such Indenture Issued Notes or beneficial
interest promptly in one or more open market sales to one or more persons each
of whom satisfies the requirements of this Section 2.4 and the legends on
the Indenture Issued Notes and such purported transferor shall take, and shall
cause such transferee to take, all further action necessary or desirable, in
the judgment of the Trustee, to ensure that such Indenture Issued Notes or any
beneficial interest therein are held by persons in compliance therewith.


 


(e)                                  Requirement to Sell.


 


(1)                                  If,
notwithstanding the restrictions set forth in this Section 2.4, either of
the Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) or the Issuer (in the case of the Class F Notes) determines that
any beneficial owner of a Rule 144A Note (A) is a U.S. Person and (B) is
not a Qualified Institutional Buyer and also a Qualified Purchaser, either of
the Co-Issuers or the Issuer, as applicable, may require, by notice to such
beneficial owner that such beneficial owner sell all of its right, title and
interest to such Indenture Issued Note (or interest therein) to a Person that
is both (1) a Qualified Institutional Buyer and (2) a Qualified Purchaser,
with such sale to be effected within 30 days after notice of such sale
requirement is given.  If such beneficial
owner fails to effect the transfer required within such 30-day period, (x) upon
written direction from the Issuer, the Trustee shall, and is hereby irrevocably
authorized by such beneficial owner to cause its interest in such Indenture
Issued Note to be transferred in a commercially reasonable sale (conducted by
the Trustee in accordance with Sections 9-610 and 9-611 of the UCC as applied to
securities that are customarily sold on a recognized market or that may decline
speedily in value) to a Person that certifies to the Trustee, in
connection with such transfer, that such Person is both (1) a Qualified
Institutional Buyer and (2) a Qualified Purchaser and (y) pending
such transfer, no further payments will be made in respect of such Indenture
Issued Note (or beneficial interest therein) held by such beneficial owner.


 


(2)                                  If,
notwithstanding the restrictions set forth in this Section 2.4, either of
the Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) or the Issuer (in the case of the Class F Notes) determines that
any beneficial owner of a Regulation S Note is (A) a U.S. Person or (B) a
Benefit Plan Investor or a Controlling Person (for the purposes of ERISA),
either of the Co-Issuers (in the case of the Indenture Issued Notes other than
the Class F Notes) or the Issuer (in the case of the Class F Notes)
may require, by notice to such beneficial owner that such beneficial owner sell
all of its right, title and interest to such Indenture Issued Note (or interest
therein) to a Person that is not (1) a U.S. Person or (2) a Benefit
Plan Investor or a Controlling Person (for the purposes of ERISA), with such
sale to be effected within 30 days after notice of such sale requirement is
given.  If such beneficial owner fails to
effect the transfer required within such 30-day period, (x) upon written
direction from the Issuer, the Trustee shall, and is hereby irrevocably
authorized by such beneficial owner to cause its interest in such Indenture
Issued Note to be transferred in a commercially reasonable sale (conducted by
the Trustee in accordance with Sections 9-610 and 9-611 of the UCC as applied
to securities that are customarily


 


58

















 


sold on a recognized market or that may decline
speedily in value) to a Person that certifies to the Trustee, in
connection with such transfer, that such Person is neither (1) a U.S.
Person nor (2) a Benefit Plan Investor or a Controlling Person (for the
purposes of ERISA) and (y) pending such transfer, no further payments
will be made in respect of such Indenture Issued Note (or beneficial interest
therein) held by such beneficial owner.


 


(f)                                    Legends.  Any
Indenture Issued Note issued upon the transfer, exchange or replacement of
Indenture Issued Notes shall bear such applicable legend set forth in the
relevant Exhibit hereto unless there is delivered to the Trustee, the Note
Registrar and the Co-Issuers (in the case of the Indenture Issued Notes other
than the Class F Notes) or the Issuer (in the case of the Class F
Notes) such satisfactory evidence, which may include an Opinion of Counsel, as
may be reasonably required by any of the Trustee, the Note Registrar and the
Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) or the Issuer (in the case of the Class F Notes) to the effect that
neither such applicable legend nor the restrictions on transfer set forth therein
are required to ensure that transfers thereof comply with the provisions of Rule 144A
and to ensure that neither of the Co-Issuers (in the case of the Indenture
Issued Notes other than the Class F Notes) or the Issuer (in the case of
the Class F Notes) nor the pool of Collateral becomes an investment
company required to be registered under the Investment Company Act.  Upon provision of such satisfactory evidence,
the Trustee, at the direction of the Co-Issuers (in the case of the Indenture
Issued Notes other than the Class F Notes) or the Issuer (in the case of
the Class F Notes), shall authenticate and deliver Indenture Issued Notes
that do not bear such applicable legend.


 


(g)                                 Expenses; Acknowledgment of
Transfer.  Transfer,
registration and exchange shall be permitted as provided in this Section 2.4
without any charge to the Indenture Issued Noteholder except for a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith or the expenses of delivery (if any) not made by regular mail and
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith pursuant to Section 2.4(a).  Registration of the transfer of a Indenture
Issued Note by the Trustee shall be deemed to be the acknowledgment of such
transfer on behalf of the Co-Issuers (in the case of the Indenture Issued Notes
other than the Class F Notes) and the Issuer (in the case of the Class F
Notes).


 


(h)                                 Surrender upon Final Payment.  Upon
final payment due on the date on which all outstanding unpaid principal of a
Indenture Issued Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity Date or by declaration of acceleration, call for
redemption or otherwise, the Holder thereof shall present and surrender such
Indenture Issued Note at the Corporate Trust Office of the Trustee in
Minneapolis, Minnesota.


 


(i)                                     Repurchase and Cancellation of Indenture Issued Notes.  The Co-Issuers (in the case of the
Indenture Issued Notes other than the Class F Notes) and the Issuer (in
the case of the Class F Notes) will not purchase, redeem, prepay or
otherwise acquire, directly or indirectly, any of the Outstanding Indenture
Issued Notes except upon the redemption of the Indenture Issued Notes in
accordance with the terms of this Indenture and the Indenture Issued
Notes.  The Co-Issuers (in the case of
the Indenture Issued Notes other than the Class F Notes) and the Issuer
(in the case of the Class F Notes) will promptly cancel all Indenture
Issued Notes acquired by them pursuant to any payment, purchase, redemption,
prepayment or other acquisition of Indenture Issued Notes pursuant to any


 


59

















 


provision of this Indenture and no Indenture Issued
Notes may be issued in substitution or exchange for any such Indenture Issued
Notes.


 


(j)                                     Compliance with Transfer Restrictions. 
Notwithstanding anything contained herein to the contrary,
neither the Trustee nor the Note Registrar shall be responsible for
ascertaining whether any transfer complies with the registration provisions of
or exemptions from the Securities Act, applicable state securities laws, the rules of
any Depositary, ERISA, the Code or the Investment Company Act; provided that if a certificate is specifically required by
the express terms of this Section 2.4 to be delivered to the Trustee or
the Note Registrar by a purchaser or transferee of a Indenture Issued Note, the
Trustee or the Note Registrar, as the case may be, shall be under a duty to
receive and examine the same to determine whether the transfer contemplated
thereby substantially complies with the express terms of this Indenture and
shall promptly notify the party delivering the same if such transfer does not
comply with such terms.  To the extent
applicable to the Issuer, the Issuer shall impose additional restrictions to
comply with the USA PATRIOT Act, and any such transfer restrictions shall be
binding on each Holder or Beneficial Owner of a Indenture Issued Note.  The Issuer shall notify the Trustee and the
Note Registrar of the imposition of any such transfer restrictions.


 


(k)                                  Physical Indenture Issued Notes. 
The Issuer will promptly make available to the Trustee
without charge a reasonable supply of Certificated Notes in definitive, fully Registered
Form, without interest coupons.


 


2.5.      MUTILATED, DEFACED, DESTROYED,
LOST OR STOLEN INDENTURE ISSUED NOTES


 


If (a) any mutilated or defaced Indenture Issued
Note is surrendered to a Note Transfer Agent, or if there shall be delivered to
either of the Co-Issuers (in the case of Indenture Issued Notes other than Class F
Notes) or the Issuer (in the case of Class F Notes), the Trustee and the
Note Transfer Agent (each, a Specified Person)
evidence to their reasonable satisfaction of the destruction, loss or theft of
any Indenture Issued Note, and (b) there is delivered to the Specified
Persons such security or indemnity as may reasonably be required by them to
save each of them harmless then, in the absence of notice to the Specified
Persons that such Indenture Issued Note has been acquired by a bona fide
purchaser, the Co-Issuers (in the case of the Indenture Issued Notes other than
the Class F Notes) and the Issuer (in the case of the Class F Notes)
shall execute and shall direct the Trustee to authenticate, and upon Issuer
Request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, defaced, destroyed, lost or stolen Indenture Issued Note, a new
Indenture Issued Note of the same Class as such mutilated, defaced,
destroyed, lost or stolen Indenture Issued Note, of like tenor (including the
same date of issuance) and equal principal amount, registered in the same
manner, dated the date of its authentication, bearing interest from the date to
which interest has been paid on the mutilated, defaced, destroyed, lost or
stolen Indenture Issued Note and bearing a number not contemporaneously
outstanding.


 


If, after delivery of such new Indenture Issued Note,
a bona fide purchaser of the predecessor Indenture Issued Note presents for
payment, transfer or exchange such predecessor Indenture Issued Note, the
Specified Persons shall be entitled to recover such new Indenture Issued Note
from the Person to whom it was delivered or any Person taking therefrom, and
shall be entitled to recover upon the security or indemnity provided therefor
to the extent of any loss, damage, cost or expense incurred by the Specified
Persons in connection therewith.


 


In case any such mutilated, defaced, destroyed, lost
or stolen Indenture Issued Note has become due and payable, the Co-Issuers (in
the case of the Indenture Issued Notes other than the Class F Notes) and
the Issuer (in the case of the Class F Notes) in their or its (as
applicable) discretion may, instead of


 


60

















 


issuing a new Indenture
Issued Note, pay such Indenture Issued Note without requiring surrender thereof
except that any mutilated Indenture
Issued Note shall be surrendered.


 


Upon the issuance of any new Indenture Issued Note
under this Section 2.5, the Co-Issuers (in the case of the Indenture
Issued Notes other than the Class F Notes) and the Issuer (in the case of
the Class F Notes), the Trustee or any Note Transfer Agent may require the
payment by the registered Holder thereof of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.


 


Every new Indenture Issued Note issued pursuant to
this Section 2.5 in lieu of any mutilated, defaced, destroyed, lost or
stolen Indenture Issued Note, shall constitute an original additional
contractual obligation of the Co-Issuers (in the case of the Indenture Issued
Notes other than the Class F Notes) and the Issuer (in the case of the Class F
Notes) and such new Indenture Issued Note shall be entitled, subject to the
second paragraph of this Section 2.5, to all the benefits of this
Indenture equally and proportionately with any and all other Indenture Issued
Notes duly issued hereunder.


 


The provisions of this Section 2.5 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, defaced, destroyed, lost or
stolen Indenture Issued Notes.


 


2.6.      PAYMENT OF PRINCIPAL AND
INTEREST; RIGHTS PRESERVED


 


(a)                                  Each
Class of Rated Notes shall accrue interest during each Interest Period
applicable to such Class in the manner and at the Applicable Periodic
Interest Rate specified in Section 2.2. 
Interest on each Class of Rated Notes shall be due and payable on
each Payment Date; provided that (i) interest
on the Class B Notes is subordinated in right of payment to the prior
payment in full on each Payment Date of the interest due and payable on the Class A
Notes (together with any Defaulted Interest thereon), (ii) interest on the
Class C Notes is subordinated in right of payment to the prior payment in
full on each Payment Date of the interest due and payable on the Class A
Notes (together with any Defaulted Interest thereon) and on the Class B
Notes (together with any Defaulted Interest thereon), (iii) interest on
the Class D Notes is subordinated in right of payment to the prior payment
in full on each Payment Date of the interest due and payable on the Class A
Notes (together with any Defaulted Interest thereon), on the Class B Notes
(together with any Defaulted Interest thereon) and on the Class C Notes
(together with any Defaulted Interest thereon), (iv) interest on the Class E
Notes is subordinated in right of payment to the prior payment in full on each
Payment Date of the interest due and payable on the Class A Notes
(together with any Defaulted Interest thereon), on the Class B Notes
(together with any Defaulted Interest thereon), on the Class C Notes (together
with any Defaulted Interest thereon) and on the Class D Notes (together
with any Defaulted Interest thereon), (v) interest on the Class F
Notes is subordinated in right of payment to the prior payment in full on each
Payment Date of the interest due and payable on the Class A Notes
(together with any Defaulted Interest thereon), on the Class B Notes
(together with any Defaulted Interest thereon), on the Class C Notes
(together with any Defaulted Interest thereon), on the Class D Notes
(together with any Defaulted Interest thereon) and on the Class E Notes
(together with any Defaulted Interest thereon), (vi) interest on the Class G
Notes is subordinated in right of payment to the prior payment in full on each
Payment Date of the interest due and payable on the Class A Notes
(together with any Defaulted Interest thereon), on the Class B Notes
(together with any Defaulted Interest thereon), on the


 


61

















 


Class E Notes (together with any Defaulted
Interest thereon), on the Class D Notes (together with any Defaulted
Interest thereon), on the Class E Notes (together with any Defaulted
Interest thereon) and on the Class F Notes (together with any Defaulted
Interest thereon), and (vii) interest on all Rated Notes is subordinated
in right of payment to the prior payment in full on each Payment Date of other
amounts in accordance with Section 11.1. 
Except as provided in Section 5.5, no payment shall be made by the
Co-Issuers hereunder other than on a Payment Date.


 


So long as any Class A Notes or Class B
Notes are Outstanding, any Class C Applicable Periodic Interest Shortfall
Amount shall be deferred and added to the then Aggregate Outstanding Amount of
the Class C Notes and shall not be considered “due and payable” for the
purposes of Section 5.1(a) until the Payment Date on which funds are
available to pay such Class C Applicable Periodic Interest Shortfall
Amount in accordance with Section 11.1.


 


So long as any Class A Notes, Class B Notes
or Class C Notes are Outstanding, any Class D Applicable Periodic
Interest Shortfall Amount shall be deferred and added to the then Aggregate
Outstanding Amount of the Class D Notes and shall not be considered “due
and payable” for the purposes of Section 5.1(a) until the Payment Date
on which funds are available to pay such Class D Applicable Periodic
Interest Shortfall Amount in accordance with Section 11.1.


 


So long as any Class A Notes, Class B Notes,
Class C Notes or Class D Notes are Outstanding, any Class E
Applicable Periodic Interest Shortfall Amount shall be deferred and added to
the then Aggregate Outstanding Amount of the Class E Notes and shall not
be considered “due and payable” for the purposes of Section 5.1(a) until
the Payment Date on which funds are available to pay such Class E
Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.


 


So long as any Class A Notes, Class B Notes,
Class C Notes, Class D Notes or Class E Notes are Outstanding,
any Class F Applicable Periodic Interest Shortfall Amount shall be
deferred and added to the then Aggregate Outstanding Amount of the Class F
Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until
the Payment Date on which funds are available to pay such Class F Applicable
Periodic Interest Shortfall Amount in accordance with Section 11.1.


 


So long as any Class A Notes, Class B Notes,
Class C Notes, Class D Notes, Class E Notes or Class F
Notes are Outstanding, any Class G Applicable Periodic Interest Shortfall
Amount shall be deferred and added to the then Aggregate Outstanding Amount of
the Class G Notes and shall not be considered “due and payable” for the
purposes of Section 5.1(a) until the Payment Date on which funds are
available to pay such Class G Applicable Periodic Interest Shortfall
Amount in accordance with Section 11.1.


 


(b)                                 The
principal of each Rated Note shall be payable no later than the Stated Maturity
Date thereof unless the unpaid principal of such Rated Note becomes due and
payable at an earlier date by declaration of acceleration, call for redemption
or otherwise; provided that:


 


(1)                                  so
long as any Class A Notes are Outstanding, except as provided in Section 9
and Section 11.1(b)(17) and (18), the payment of principal of the Class B
Notes, the Class C Notes, the Class D Notes, the Class E Notes,
the Class F Notes and the Class G Notes to the PAA Issued Note Paying
Agent for payment on the Class G Notes in accordance with the Paying
Agency Agreement (x) may only


 


62

















 


occur after principal of the Class A Notes has
been paid in full and (y) shall be subordinated to the payment on each
Payment Date of the principal and interest due and payable on the Class A
Notes and other amounts payable in accordance with Section 11.1;


 


(2)                                  so
long as any Class B Notes are Outstanding, except as provided in Section 9
and Section 11.1(b)(17) and (18), the payment of principal of the Class C
Notes, the Class D Notes, the Class E Notes, the Class F Notes
and the Class G Notes (x) may only occur after principal of the Class A
Notes and Class B Notes has been paid in full and (y) shall be
subordinated to the payment on each Payment Date of the principal and interest
due and payable on the Class B Notes and other amounts payable in accordance
with Section 11.1;


 


(3)                                  so
long as any Class A Notes, Class B Notes or Class C Notes are
Outstanding, except as provided in Section 11.1(b)(17) and (18), the
payment of principal of the Class D Notes (x) may only occur after
principal of the Class A Notes, Class B Notes and Class C Notes
has been paid in full and (y) shall be subordinated to the payment on each
Payment Date of the principal and interest due and payable on the Class A
Notes, Class B Notes and Class C Notes and other amounts payable in
accordance with Section 11.1;


 


(4)                                  so
long as any Class A Notes, Class B Notes, Class C Notes or Class D
Notes are Outstanding, except as provided in Section 11.1(b)(17) and (18),
the payment of principal of the Class E Notes (x) may only occur
after principal of the Class A Notes, Class B Notes, Class C
Notes and Class D Notes has been paid in full and (y) shall be
subordinated to the payment on each Payment Date of the principal and interest
due and payable on the Class A Notes, Class B Notes, Class C
Notes and Class D Notes and other amounts payable in accordance with Section 11.1;


 


(5)                                  so
long as any Class A Notes, Class B Notes, Class C Notes, Class D
Notes or Class E Notes are Outstanding, except as provided in Section 11.1(b)(17)
and (18), the payment of principal of the Class F Notes (x) may only
occur after principal of the Class A Notes, Class B Notes, Class C
Notes, Class D Notes and Class E Notes has been paid in full and (y) shall
be subordinated to the payment on each Payment Date of the principal and
interest due and payable on the Class A Notes, Class B Notes, Class C
Notes, Class D Notes and Class E Notes and other amounts payable in
accordance with Section 11.1;


 


(6)                                  so
long as any Class A Notes, Class B Notes, Class C Notes, Class D
Notes, Class E Notes or Class F Notes are Outstanding, except as
provided in Section 11.1(b)(17) and (18), the payment of principal of the Class G
Notes (x) may only occur after principal of the Class A Notes, Class B
Notes, Class C Notes, Class D Notes, Class E Notes and Class F
Notes has been paid in full and (y) shall be subordinated to the payment
on each Payment Date of the principal and interest due and payable on the Class A
Notes, Class B Notes, Class C Notes, Class D Notes, Class E
Notes and Class F Notes and other amounts payable in accordance with Section 11.1.


 


(c)                                  So
long as the Coverage Tests are satisfied, principal will not be payable on any Class of
Rated Notes except (i) upon the occurrence of a Redemption, (ii) in
the case of any Class B Notes, Class C Notes, Class D Notes, Class E
Notes, Class F Notes or Class G Notes,


 


63

















 


to pay amounts in respect of the Class C
Cumulative Applicable Periodic Interest Shortfall Amount, the Class D
Cumulative Applicable Periodic Interest Shortfall Amount, the Class E
Cumulative Applicable Periodic Interest Shortfall Amount, the Class F
Cumulative Applicable Periodic Interest Shortfall Amount or the Class G
Cumulative Applicable Periodic Interest Shortfall Amount, as the case may be,
in accordance with Section 11.1 and (iii) on each Payment Date, in
accordance with Section 11.1.


 


(d)                                 As
a condition to the payment of any principal of or interest on any Rated Note
without the imposition of withholding tax, any Note Paying Agent shall require
the previous delivery of properly completed and signed applicable U.S. federal
income tax certifications (generally, an Internal Revenue Service Form W-9
(or applicable successor form) in the case of a person that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code or an
Internal Revenue Service Form W-8 (or applicable successor form) in the
case of a person that is not a “United States person” within the meaning of Section 7701(a)(30)
of the Code) or other certification acceptable to it to enable the
Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) or the Issuer (in the case of the Class F Notes), the Trustee and
any Note Paying Agent to determine their duties and liabilities with respect to
any taxes or other charges that they may be required to pay, deduct or withhold
in respect of such Rated Note or the Holder of such Rated Note under any
present or future law or regulation of the Cayman Islands or the United States
or any present or future law or regulation of any political subdivision thereof
or taxing authority therein or to comply with any reporting or other
requirements under any such law or regulation.


 


(e)                                  All
payments made by the Issuer under the Rated Notes will be made without any
deduction or withholding for or on the account of any tax unless such deduction
or withholding is required by applicable law, as modified by the practice of
any relevant governmental authority, then in effect.  If the Issuer is so required to deduct or
withhold, then neither the Issuer nor the Co-Issuer will be obligated to pay
any additional amounts in respect of such withholding or deduction.


 


(f)                                    Payments
in respect of principal of and interest on the Rated Notes shall be payable by
wire transfer in immediately Available Funds to a Dollar account maintained by
the Rated Noteholders in accordance with wire transfer instructions received by
any Note Paying Agent on or before the Record Date or, if no wire transfer
instructions are received by a Note Paying Agent, by a Dollar check drawn on a
bank in the United States mailed to the address of such Rated Noteholder as it
appears on the Note Register at the close of business on the Record Date for
such payment.


 


(g)                                 The
principal of and interest on any Rated Note which is payable on a Redemption
Date or in accordance with Section 11.1 on a Payment Date and is
punctually paid or duly provided for on such Redemption Date or Payment Date
shall be paid to the Person in whose name that Rated Note (or one or more
predecessor Rated Notes) is registered at the close of business on the Record
Date for such payment.  All such payments
that are mailed or wired and returned to the Note Paying Agent shall be held
for payment as herein provided at the office or agency of the Co-Issuers (in
the case of the Rated Notes other than the Class F Notes and the Class G
Notes) or the Issuer (in the case of the Class F Notes and the Class G
Notes) to be maintained as provided in Section 7.2.


 


64

















 


Payments to Holders of the Rated Notes of each Class shall
be made in the proportion that the Aggregate Outstanding Amount of the Rated
Notes of such Class registered in the name of each such Holder on the
Record Date for such payment bears to the Aggregate Outstanding Amount of all
Rated Notes of such Class on such Record Date.


 


(h)                                 Payment
of any Defaulted Interest may be made in any other lawful manner in accordance
with Section 11.1 if notice of such payment is given by the Trustee to the
Co-Issuers and the Rated Noteholders, and such manner of payment shall be
deemed practicable by the Trustee.


 


(i)                                     All
reductions in the principal amount of a Rated Note (or one or more predecessor
Rated Notes) effected by payments of installments of principal made on any
Payment Date or Redemption Date shall be binding upon all future Holders of
such Rated Note and of any Rated Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof, whether or not such payment
is noted on such Rated Note.


 


(j)                                     Notwithstanding
anything to the contrary herein, the obligations of the Co-Issuers under the
Rated Notes (other than the Class F Notes and the Class G Notes), the
Issuer under the Class F Notes and the Class G Notes or the
Co-Issuers under this Indenture or arising in connection herewith are limited
recourse obligations of the Co-Issuers or the Issuer, as the case may be,
payable solely from the Collateral and following realization of the Collateral,
all obligations of and all claims against the Co-Issuers or the Issuer, as the
case may be, hereunder or arising in connection herewith shall be extinguished
and shall not thereafter revive.  No
recourse shall be had against any Officer, member, director, employee, security
holder or incorporator of the Co-Issuers (in the case of the Rated Notes other
than the Class F Notes and the Class G Notes) or the Issuer (in the
case of the Class F Notes and the Class G Notes) or their respective
successors or assigns for the payment of any amounts payable under the Rated
Notes or this Indenture.  It is
understood that the foregoing provisions of this Section 2.6(j) shall
not (i) prevent recourse to the Collateral for the sums due or to become
due under any security, instrument or agreement which is part of the Collateral
or (ii) constitute a waiver, release or discharge of any indebtedness or
obligation evidenced by the Rated Notes or secured by this Indenture until such
Collateral has been realized, whereupon any outstanding indebtedness or
obligation shall be extinguished.  It is
further understood that the foregoing provisions of this Section 2.6(j) shall
not limit the right of any Person to name either of the Co-Issuers (in the case
of the Rated Notes other than the class F Notes and the Class G Notes) or
the Issuer (in the case of the Class F Notes and the Class G Notes)
as a party defendant in any action or suit or in the exercise of any other
remedy under the Rated Notes or this Indenture, so long as no judgment in the
nature of a deficiency judgment or seeking personal liability shall be asked
for or (if obtained) enforced against any such Person or entity.


 


(k)                                  Subject
to the foregoing provisions of this Section 2.6 and the provisions of
Sections 2.4 and 2.5, each Rated Note delivered under this Indenture and
upon registration of transfer of or in exchange for or in lieu of any other
Rated Note shall carry the rights of unpaid interest and principal that were
carried by such other Rated Note.


 


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ARTICLE III


 


CONDITIONS PRECEDENT


 


3.1.      GENERAL PROVISIONS


 


The Indenture Issued Notes may be executed by the
Co-Issuers (in the case of the Indenture Issued Notes other than the Class F
Notes) or the Issuer (in the case of the Class F Notes) and delivered to
the Trustee for authentication and thereupon the same shall be authenticated
and delivered by the Trustee (or an Authenticating Agent on its
behalf) upon Issuer Request, upon receipt by the Trustee of the following:


 


(a)                                  (1)                                  an
Officer’s certificate of the Issuer, (A) evidencing the authorization by
Board Resolution of the execution and delivery of, and the performance of the
Issuer’s obligations under, each Transaction Document, in each case as may be
amended on or prior to, and as in effect on, the Closing Date, and the
execution, authentication and delivery of the Indenture Issued Notes and
specifying the Stated Maturity Date, the principal amount and the Applicable
Periodic Interest Rate with respect to each Class of Indenture Issued
Notes to be authenticated and delivered, and (B) certifying that (1) the
attached copy of such Board Resolution is a true and complete copy thereof, (2) such
resolutions have not been rescinded and are in full force and effect on and as
of the Closing Date and (3) the Officers authorized to execute and deliver
such documents hold the offices and have the signatures indicated thereon; and


 


(2)                                  an
Officer’s certificate of the Co-Issuer (A) evidencing the authorization by
Board Resolution of the execution and delivery of, and the performance of the
Co-Issuer’s obligations under, this Indenture, as may be amended on or prior
to, and as in effect on, the Closing Date, and the execution, authentication
and delivery of the Indenture Issued Notes (other than the Class F Notes)
and specifying the Stated Maturity Date, the principal amount and the
Applicable Periodic Interest Rate of each Class of Indenture Issued Notes
(other than the Class F Notes) to be authenticated and delivered, and (B) certifying
that (1) the attached copy of such Board Resolution is a true and complete
copy thereof, (2) such resolutions have not been rescinded and are in full
force and effect on and as of the Closing Date and (3) the Officers
authorized to execute and deliver such documents hold the offices and have the
signatures indicated thereon;


 


(b)                                 (1)                                  either
(A) a certificate of the Issuer, or other official document evidencing the
due authorization, approval or consent of any governmental body or bodies, at
the time having jurisdiction in the premises, together with an Opinion of
Counsel to the Issuer satisfactory in form and substance to the Trustee on
which the Trustee is entitled to rely to the effect that no other
authorization, approval or consent of any governmental body is required for the
valid issuance of the Indenture Issued Notes, or (B) an Opinion of Counsel
to the Issuer satisfactory in form and substance to the Trustee to the effect
that no such authorization, approval or consent of any governmental body is
required for the valid issuance of the Indenture Issued Notes except as may
have been given; and


 


(2)                                  either
(A) a certificate of the Co-Issuer or other official document evidencing
the due authorization, approval or consent of any governmental body or bodies,
at 


 


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the time having jurisdiction in the premises, together
with an Opinion of Counsel to the Co-Issuer satisfactory in form and substance
to the Trustee on which the Trustee is entitled to rely to the effect that no
other authorization, approval or consent of any governmental body is required
for the valid issuance of the Indenture Issued Notes (other than the Class F
Notes), or (B) an Opinion of Counsel to the Co-Issuer satisfactory in form
and substance to the Trustee that no such authorization, approval or consent of
any governmental body is required for the valid issuance of the Indenture
Issued Notes (other than the Class F Notes) except as may have been given;


 


(c)                                  (1)                                  an
opinion of Thacher Proffitt & Wood LLP, special New York counsel to
the Co-Issuers, dated the Closing Date, substantially in the form of Exhibit E-1;


 


(2)                                  an
opinion of Walkers, special Cayman Islands counsel to the Issuer, dated the
Closing Date, substantially in the form of Exhibit E-2;


 


(3)                                  an
opinion of Kennedy Covington Lobdell & Hickman, L.L.P., counsel to the
Trustee, dated the Closing Date, substantially in the form of Exhibit F;
and


 


(4)                                  an
opinion of Thacher Proffitt & Wood LLP, counsel to the Collateral
Manager, dated the Closing Date, substantially in the form of Exhibit G;


 


(d)                                 an
Officer’s certificate of the Issuer, stating that the Issuer is not in Default
under this Indenture and that the issuance of the Indenture Issued Notes will
not result in a breach of any of the terms, conditions or provisions of, or
constitute a Default under, the Articles, any indenture or other agreement or
instrument to which the Issuer is a party or by which it is bound, or any order
of any court or administrative agency entered in any Proceeding to which the
Issuer is a party or by which it may be bound or to which it may be subject;
that no Event of Default shall have occurred and be continuing; that all of the
representations and warranties contained herein are true and correct as of the
Closing Date; that all conditions precedent provided in this Indenture relating
to the authentication and delivery of the Indenture Issued Notes applied for
(including in Section 3.2) have been complied with; and that all expenses
due or accrued with respect to the Offering or relating to actions taken on or
in connection with the Closing Date have been paid;


 


(e)                                  an
Officer’s certificate of the Co-Issuer stating that the Co-Issuer is not in
Default under this Indenture and that the issuance of the Indenture Issued Notes
will not result in a breach of any of the terms, conditions or provisions of,
or constitute a Default under, the Certificate of Incorporation or By-Laws of
the Co-Issuer, any indenture or other agreement or instrument to which the
Co-Issuer is a party or by which it is bound, or any order of any court or
administrative agency entered in any Proceeding to which the Co-Issuer is a
party or by which it may be bound or to which it may be subject; that no Event
of Default shall have occurred and be continuing; that all of the
representations and warranties contained herein are true and correct as of the
Closing Date; that all conditions precedent provided in this Indenture relating
to the authentication and delivery of the Indenture Issued Notes applied for have
been complied with; and that all expenses due or accrued with respect to the
Offering or relating to actions taken on or in connection with the Closing Date
have been paid;


 


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(f)                                    an
Accountants’ Report (A) confirming the information with respect to each
Collateral Interest (other than its price) set forth on a schedule setting
forth each Collateral Interest and the information provided by the Issuer with
respect to every other asset forming part of the Collateral, by reference to
such sources as shall be specified therein, (B) confirming that, on the
Closing Date, the Collateral Interests set forth on Schedule A meet the
Collateral Quality Tests (with the exception of the S&P CDO Monitor Test), (C) calculating
each of the Coverage Tests as of the Closing Date and (D) specifying the
procedures undertaken by them to review data and computations relating to the
foregoing statement;


 


(g)                                 executed
counterparts of this Indenture, the Account Control Agreement, the Collateral
Administration Agreement, the Collateral Management Agreement and the other
Transaction Documents;


 


(h)                                 execution
and delivery of the Financing Statement for filing against the Issuer with the
Recorder of Deeds in the District of Columbia; and


 


(i)                                     evidence
of an entry having been made in the Issuer’s Register of Mortgages and Charges
in respect of the charge.


 


3.2.      SECURITY FOR THE INDENTURE ISSUED
NOTES


 


Prior to the issuance of the Indenture Issued Notes on
the Closing Date, the Issuer shall cause the following conditions to be
satisfied:


 


(a)                                  Grant of Security Interest; Delivery of
Collateral Interests.  The
Grant pursuant to the Granting clauses of this Indenture of all of the Issuer’s
right, title and interest in and to the Collateral and the transfer of all
Collateral Interests purchased by the Issuer on the Closing Date (as set forth
in Schedule A) to the Trustee in the manner provided in Section 3.3(b).


 


(b)                                 Certificate of the Issuer.  The
delivery to the Trustee of a certificate of an Authorized Officer of the Issuer
or the Collateral Manager, for and on behalf of the Issuer, dated as of the
Closing Date, to the effect that (x) the Issuer has no assets other than
the Collateral, (y) the Issuer has no investments that do not qualify as
Collateral Interests or Eligible Investments and (z) in the case of each
Collateral Interest identified on Schedule A and pledged to the Trustee for
inclusion in the Collateral on the Closing Date:


 


(1)           the
Issuer is the owner of such Collateral Interest free and clear of any liens,
claims or encumbrances of any nature whatsoever except for those which are
being released on the Closing Date and except for those Granted pursuant to
this Indenture and encumbrances arising from due bills, if any, with respect to
interest, or a portion thereof, accrued on such Collateral Interest prior to
the first Payment Date and owed by the Issuer to the seller of such Collateral
Interest;


 


(2)           the
Issuer has acquired its ownership in such Collateral Interest in good faith
without notice of any adverse claim (within the meaning given to such term by Section 8-102(a)(1) of
the UCC), except as described in clause (1) above;


 


(3)           the
Issuer has not assigned, pledged or otherwise encumbered any interest in such
Collateral Interest (or, if any such interest has been assigned, pledged or


 


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otherwise encumbered, it has been released) other
than interests Granted pursuant to this Indenture;


 


(4)           the
Issuer has full right to Grant a security interest in and assign and pledge all
of its right, title and interest in such Collateral Interest to the Trustee;


 


(5)           the
information set forth with respect to such Collateral Interest on Schedule A is
correct and each such Collateral Interest is transferred to the Trustee as
required by Section 3.2(a) (or, if any such Collateral Interest is
not so transferred to the Trustee on the Closing Date, the Issuer has entered
into a binding agreement to purchase such Collateral Interest for settlement
within 10 days after the Closing Date);


 


(6)           each
such Collateral Interest satisfies the requirements of the definition of “Collateral
Interest” and is not an Impaired Interest; and


 


(7)           upon
Grant by the Issuer, the Trustee has a first priority perfected security
interest in the Collateral (assuming that any Clearing Corporation, Securities
Intermediary or other entity not within the control of the Issuer involved in
the Grant of Collateral takes the actions required of it under Section 3.3(b) for
perfection of that interest) and a “securities entitlement” (as defined in the
UCC) with respect to Financial Assets.


 


(c)                                  Rating Letters.  The
delivery to the Trustee of an Officer’s certificate of the Issuer, to the
effect that (i) attached thereto are true and correct copies of (A) a
letter signed by S&P confirming that the Class A Notes have been rated
“AAA”, the Class B Notes have been rated at least “AA”, the Class C
Notes have been rated at least “A”, the Class D Notes have been rated at
least “BBB”, the Class E Notes have been rated at least “BBB-”, the Class F
Notes have been rated at least “BB” and the Class G Notes have been rated
at least “B” by S&P and (B) a letter signed by Moody’s confirming that
the Class A Notes have been rated “Aaa”, the Class B Notes have been
rated at least “Aa2”, the Class C Notes have been rated at least “A2”, the
Class D Notes have been rated at least “Baa2”, the Class E Notes have
been rated at least “Baa3”, the Class F Notes have been rated at least “Ba2”
and the Class G Notes have been rated at least “B2” by Moody’s and (ii) each
such rating is in full force and effect on the Closing Date.


 


(d)                                 Accounts.  The
delivery by the Trustee of evidence of the establishment of the Payment
Account, the Collection Account (including each Collateral Sub-Account
established therein), the Expense Reserve Account, the Interest Reserve
Account, the Collateral Account and the Uninvested Proceeds Account and, to be
established on the Closing Date.


 


(e)                                  Funding Certificate.  The
delivery to the Trustee of a funding certificate (the Funding
Certificate), duly executed by an
Authorized Officer of the Issuer, relating to, among other things, the
disposition of the proceeds of the issuance of the Indenture Issued Notes, dated
the Closing Date, in substantially the form of Exhibit D hereto.


 


(f)                                    Purchases.  The
delivery to the Trustee of a certification of the Issuer that it shall have
entered into one or more agreements to purchase, for settlement on or following
the Closing Date in accordance with customary settlement procedures in the
relevant


 


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markets, Collateral Interests having an aggregate
Principal Balance of not less than U.S.$328,916,892.43.


 


3.3.      CUSTODIANSHIP; TRANSFER OF
COLLATERAL INTERESTS AND ELIGIBLE INVESTMENTS


 


(a)                                  The
Trustee shall hold all Certificated Securities and Instruments in physical form
at the office of a custodian appointed by it in Minnesota (together with any
successor, the Custodian).  Initially, such Custodian shall be Wells
Fargo Bank, National Association with its address at Wells Fargo Center, Sixth
Street and Marquette Avenue, Minneapolis, Minnesota 55479, Attention:  CDO Trust Services—N-Star REL CDO IV.  Any successor custodian shall be a state or
national bank or trust company that is not an Affiliate of the Issuer or the
Co-Issuer, has a long-term debt rating of at least “BBB+” by S&P and has a
combined capital and surplus of at least U.S.$250,000,000.


 


(b)                                 Each
Collateral Interest, Equity Interest and Eligible Investment shall be credited
to the appropriate Account.  Each time
that the Issuer shall direct or cause the acquisition of any Collateral
Interest, Equity Interest or Eligible Investment, the Trustee (on behalf of the
Issuer) shall, if such Collateral Interest, Equity Interest or Eligible
Investment has not already been transferred to the Collateral Account and
credited thereto, cause the transfer of such Collateral Interest, Equity
Interest or Eligible Investment to the Custodian to be held in and credited to
the Collateral Account for the benefit of the Trustee in accordance with the
terms of this Indenture.  The security
interest of the Trustee in the funds or other property utilized in connection
with such acquisition shall, immediately and without further action on the part
of the Trustee, be released.  The
security interest of the Trustee shall nevertheless come into existence and
continue in the Collateral Interest, Equity Interest or Eligible Investment so
acquired, including all rights of the Issuer in and to any contracts related to
and proceeds of such Collateral Interest, Equity Interest or Eligible
Investment.


 


(c)                                  On
the Closing Date, on each day thereafter, if any, that any Collateral is
acquired or otherwise becomes subject to the lien of this Indenture and on the
Effective Date, the Issuer represents and warrants to the Trustee as follows:


 


(1)           This
Indenture creates a valid and continuing security interest (as defined in the
applicable Uniform Commercial Code) in the Collateral in favor of the
Trustee on behalf and for the benefit of the Secured Parties, which security
interest is prior to all other liens and security interests, and is enforceable
as such as against creditors of and purchasers from the Issuer and, upon
delivery of the Collateral Interests and filing of the appropriate financing
statements in the appropriate filing offices, the lien and security interest
created by this Indenture shall be a perfected first priority security interest
in favor of the Trustee for the benefit of the Secured Parties.


 


(2)           The
Issuer owns and has good and marketable title to the Collateral free and clear
of any liens, claims, encumbrances or defects of any nature whatsoever except
for those which are being released on the Closing Date or on the date of
purchase by the Issuer or those created pursuant to or contemplated under this
Indenture and encumbrances arising from due bills, if any, with respect to
interest, or a portion thereof, accrued on any Collateral Interest prior to the
first payment date and owed by the Issuer to the seller of such Collateral
Interest.


 


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(3)           The
Issuer has acquired its ownership in each such Collateral Interest, or will
acquire in the case of any Collateral Interests which the Issuer has on or
before the Closing Date committed to purchase but which will not have settled
on or before the Closing Date or any additional Collateral Interests or
Substitute Collateral Interests acquired by the Issuer after the Closing Date,
in good faith without notice of any adverse claim, except as described in
clause (2) above.


 


(4)           The
Issuer (a) has delivered each such Collateral Interest, or will deliver
any Collateral Interests which the Issuer has on or before the Closing Date
committed to purchase but which will not have settled on or before the Closing
Date or any additional Collateral Interests or Substitute Collateral Interests
acquired by the Issuer after the Closing Date, to the Trustee and (b) has
not assigned, pledged, sold, granted a security interest in or otherwise
encumbered any interest in such Collateral Interest other than interests
granted pursuant to this Indenture.


 


(5)           The
Issuer has full right to grant all security interests granted herein.


 


(6)           All
Collateral is comprised of either “securities”, “instruments”, “tangible
chattel paper”, “accounts”, “security entitlements” or “general intangibles”,
in each case as defined in the applicable Uniform Commercial Code.


 


(7)           Each
of the Accounts, and all subaccounts thereof, constitute securities accounts as
defined in the applicable Uniform Commercial Code.


 


(8)           All
items of the Collateral that constitute security entitlements have been and
will have been credited to one of the securities accounts.  The securities intermediary for each of the
Accounts has agreed to treat all assets credited to the securities accounts as
financial assets under the applicable Uniform Commercial Code.


 


(9)           Other
than the security interest granted to the Trustee on behalf and for the benefit
of the Secured Parties pursuant to this Indenture, the Issuer has not pledged,
assigned, sold, granted a security interest in or otherwise conveyed any of the
Collateral.  The Issuer has not
authorized the filing of and is not aware of any financing statements against
the Issuer that include a description of collateral covering the Collateral
other than any financing statement relating to the security interest granted to
the Trustee on behalf and for the benefit of the Secured Parties hereunder or
that has been terminated.  The Issuer is
not aware of any judgment, Pension Benefit Guarantee Corporation lien or tax
lien filings against it.


 


(10)         The
Issuer has caused or will have caused, within ten (10) days of the Closing
Date, the filing of all appropriate financing statements in the proper filing
office in the appropriate jurisdictions under applicable law in order to
perfect the security interest in the Collateral granted to the Trustee on
behalf and for the benefit of the Secured Parties hereunder that constitutes
chattel paper, instruments, accounts, securities entitlements or general
intangibles under the applicable Uniform Commercial Code, if any.


 


(11)         The
Trustee or the Accountholder has in its possession all original copies of the
instruments that constitute or evidence the Collateral, if any.  The instruments, loan agreements and leases
that constitute or evidence the Collateral do not have any marks or notations
indicating that they have been pledged, assigned or


 


71

















 


otherwise conveyed to any Person other than the
Trustee on behalf and for the benefit of the Secured Parties.  All financing statements filed or to be filed
against the Issuer in favor of the Trustee on behalf and for the benefit of the
Secured Parties in connection herewith describing the Collateral contain a
statement to the following effect:  “A purchase
of or security interest in any collateral described in this financing statement
will violate the rights of the Trustee on behalf and for the benefit of (A) itself
and for the benefit of the Noteholders, (B) the Collateral Manager and (C) each
Hedge Counterparty.”


 


(12)         The
authoritative copy of any chattel paper that constitutes or evidences the
Collateral, if any, has been communicated to the Trustee and has no marks or
notations indicating that it has been pledged, assigned or otherwise conveyed
to any Person other than the Trustee on behalf and for the benefit of the
Secured Parties.


 


(13)         The
Issuer has received or will receive all consents and approvals required by the
terms of the underlying loan agreement, indenture or other underlying
documentation, if any, relating to the Collateral to the transfer to the
Trustee on behalf and for the benefit of the Secured Parties of its interest
and rights in the Collateral hereunder.


 


(14)         The
Issuer, the Accountholder and the Trustee have entered into the Account Control
Agreement pursuant to which the Accountholder has agreed to comply with all
instructions originated by the Trustee relating to the Accounts without further
consent by the Issuer.


 


(15)         None
of the Accounts is in the name of any person other than the Trustee, held on
behalf and for the benefit of the Secured Parties.  The Issuer has not consented to the Trustee
or the Accountholder maintaining any of the Accounts to comply with entitlement
orders or instructions of any Person other than the Trustee.


 


(16)         Notwithstanding
any other provision of this Indenture or any other related Transaction
Document, the representations in this Section 3.3(c) shall be
continuing and deemed to be updated on any day a new item of Collateral is
acquired, and remain in full force and effect until such time as all
obligations under this Indenture and the Notes have been finally and fully paid
and performed and shall survive the termination of this Indenture for any other
reason.


 


(17)         The
parties to this Indenture (i) shall not, without obtaining a Rating Agency
Confirmation, waive any of the representations in this Section 3.3(c); (ii) shall
provide each of the Rating Agencies with prompt written notice of any breach of
the representations contained in this Section 3.3(c) upon becoming
aware thereof; and (iii) shall not, without obtaining a Rating Agency
Confirmation (as determined after any adjustment or withdrawal of the ratings
following notice of such breach), waive a breach of any of the representations
in this Section 3.3(c).


 


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ARTICLE IV




SATISFACTION AND DISCHARGE


 


4.1.      SATISFACTION AND DISCHARGE OF
INDENTURE


 


This Indenture shall be discharged and shall cease to
be of further effect with respect to the Collateral securing the Indenture
Issued Notes and the Indenture Issued Notes except as to (i) rights of
registration of transfer and exchange, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Indenture Issued Notes, (iii) rights of
Rated Noteholders to receive payments of principal thereof and interest
thereon, (iv) the rights, obligations and immunities of the Trustee
hereunder, (v) the rights, obligations and immunities of the Collateral
Manager hereunder and under the Collateral Management Agreement and (vi) the
rights of the Secured Parties as beneficiaries hereof with respect to the
property deposited with the Trustee and payable to all or any of them; and the
Trustee, on demand of and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when:


 


(a)                                  either:


 


(1)                                  all
Indenture Issued Notes theretofore authenticated and delivered (other than (A) Indenture
Issued Notes which have been mutilated, defaced, destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.5 and (B) Indenture
Issued Notes for whose payment funds have theretofore irrevocably been
deposited in trust and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 7.3) have been delivered to the Trustee for
cancellation; or


 


(2)                                  all
Rated Notes not theretofore delivered to the Trustee or the PAA Issued Note
Paying Agent, as applicable,  for
cancellation (A) have become due and payable, or (B) will become due
and payable at their Stated Maturity Date within one year, or (C) are to
be called for redemption pursuant to Section 9.1 under an arrangement
satisfactory to the Trustee for the giving of notice of redemption by the
Co-Issuers pursuant to Section 9.3 and the Issuer has irrevocably
deposited or caused to be deposited with the Trustee, in trust for such
purpose, Cash or non-callable direct obligations of the United States in an
amount sufficient, according to the Priority of Payments as verified by a firm
of nationally recognized Independent certified public accountants, to pay and
discharge the entire indebtedness on all Rated Notes not theretofore delivered
to the Trustee or the PAA Issued Note Paying Agent, as applicable, for
cancellation, including all principal and interest (including Class C
Cumulative Applicable Periodic Interest Shortfall Amount, Class D
Cumulative Applicable Periodic Interest Shortfall Amount, Class E
Cumulative Applicable Periodic Interest Shortfall Amount, Class F
Cumulative Applicable Periodic Interest Shortfall Amount and Class G
Cumulative Applicable Periodic Interest Shortfall Amount accrued to the date of
such deposit (in the case of Rated Notes which have become due and
payable) or to the Stated Maturity Date or the Redemption Date, as the
case may be; provided that (x) such
obligations are entitled to the full faith and credit of the United States and (y) this
subclause (2) shall not apply if an election to act in accordance
with the provisions of Section 5.5(a) shall have been made and not
rescinded;


 


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(b)                                 the
Issuer has paid or caused to be paid all other sums payable hereunder
(including amounts payable pursuant to the Paying Agency Agreement, the
Corporate Services Agreement, the Collateral Management Agreement, any Hedge
Agreement and the Collateral Administration Agreement) and no other amounts
will become due and payable by the Issuer; and


 


(c)                                  the
Co-Issuers have delivered to the Trustee Officer’s certificates and an Opinion
of Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.


 


Notwithstanding the satisfaction and discharge of this
Indenture, the rights and obligations of the Co-Issuers, the Trustee and any
Hedge Counterparty and, if applicable, the Rated Noteholders, as the case may
be, under Sections 2.6, 4.1, 4.2, 5.9, 5.18, 6.7, 6.8, 7.1 and 7.3 shall
survive.


 


4.2.      APPLICATION OF TRUST MONEY


 


All funds deposited with the Trustee pursuant to Section 4.1
for the payment of principal of and interest on the Rated Notes and amounts
payable pursuant to any Hedge Agreement, the Collateral Management Agreement,
the Paying Agency Agreement, the Corporate Services Agreement and the
Collateral Administration Agreement shall be held in trust and applied by it in
accordance with the provisions of the Rated Notes and this Indenture, including
the Priority of Payments, for the payment either directly or through any Note
Paying Agent, as the Trustee may determine, to the Person entitled thereto of
the respective amounts in respect of which such funds has been deposited with
the Trustee; but such funds need not be segregated from other funds except to
the extent required herein or required by law.


 


4.3.      REPAYMENT OF FUNDS HELD BY NOTE
PAYING AGENT


 


In connection with the satisfaction and discharge of
this Indenture with respect to the Rated Notes, all funds then held by any Note
Paying Agent other than the Trustee under the provisions of this Indenture
shall, upon demand of the Co-Issuers, be paid to the Trustee to be held and
applied pursuant to Section 7.3 and in accordance with the Priority of
Payments and thereupon such Note Paying Agent shall be released from all
further liability with respect to such funds.


 


ARTICLE V



EVENTS OF DEFAULT; REMEDIES


 


5.1.      EVENTS OF DEFAULT


 


Event
of Default, is defined as any one of the following
wherever used herein, means any one of the following events as set forth in Section 5.1(a) through
(h) (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
default for five (5) Business Days in the payment, when due and
payable, of any interest on any Class A Note, or if there are no Class A
Notes Outstanding, on any Class B Note, or, if there are no Class A
Notes or Class B Notes Outstanding, on any Class C Note, or, if there
are no Class A Notes, Class B Notes or Class C Notes
Outstanding, on any Class D Note, or if there are no Class A Notes, Class B
Notes, Class


 


74

















 


C Notes or Class D Notes Outstanding, on any Class E
Note, or if there are no Class A Notes, Class B Notes, Class C
Notes, Class D Notes or Class E Notes Outstanding, on any Class F
Note;


 


(b)                                 a
default in the payment of any principal, when due and payable of any Rated Note
other than a Class G Note (or, in the case of a default in payment
resulting solely from an administrative error or omission by the Trustee, the
Administrator, any Note Paying Agent, the Note Registrar or the PAA Issued Note
Registrar, such default continues for a period of five (5) Business
Days);


 


(c)                                  the
failure on any Payment Date to disburse amounts available in accordance with Section 11.1
(except as provided in Section 5.1(a) and (b) above) and a
continuation of such failure for three (3) Business Days (or, in the
case of a default in payment resulting solely from an administrative error or
omission by the Trustee, the Administrator, any Note Paying Agent, the Note
Registrar or the PAA Issued Note Registrar, such default continues for a period
of five (5) Business Days);


 


(d)                                 on
any date of determination, the failure to maintain an aggregate principal
amount of Collateral Interests and Eligible Investments at least equal to 100%
of the aggregate principal amount of the Class A Notes Outstanding;


 


(e)                                  the
event that either of the Co-Issuers or the pool of Collateral becomes an investment
company required to be registered under the Investment Company Act;


 


(f)                                    a
default in the performance, or breach, of any other covenant (it being
understood that non-compliance with any of the Coverage Tests or the Collateral
Quality Tests will not constitute a default or breach) or warranty of either of
the Co-Issuers under the Indenture of any representation or if any certificate
or writing delivered pursuant thereto proves to be incorrect when made, which
default or breach has a material adverse effect on the Rated Noteholders and
continues for a period of thirty (30) days (or, in the case of a default,
breach or failure of a representation or warranty regarding the Collateral,
fifteen (15) days) of the earlier of knowledge by the Co-Issuers or the
Collateral Manager or notice to the Co-Issuers and the Collateral Manager by
the Trustee or to the Co-Issuers and the Collateral Manager by the Holders of
at least 25%, of the then Aggregate Outstanding Amount of the Rated Notes of
any Class, specifying such default, breach or failure and requiring it to be
remedied and stating that such notice is a “Notice of Default” under this
Indenture;


 


(g)                                 the
entry of a decree or order by a court having competent jurisdiction adjudging
the Issuer or the Co-Issuer as bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Issuer or the Co-Issuer under the Bankruptcy Code or
any other applicable law, or appointing a receiver, liquidator, assignee, or
sequestrator (or other similar official) of the Issuer or the Co-Issuer or of
any substantial part of its property; ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of ninety (90) consecutive days; or


 


(h)                                 the
institution by the Issuer or the Co-Issuer of proceedings to be adjudicated as
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Bankruptcy Code or any
other similar applicable law, or


 


75

















 


the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Issuer or the Co-Issuer or of
any substantial part of its property, respectively, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
any action by the Issuer or the Co-Issuer in furtherance of any such action.


 


If either of the Co-Issuers shall obtain actual
knowledge that an Event of Default shall have occurred and be continuing, such
Co-Issuer shall (unless the Trustee shall have provided notice of such Event of
Default pursuant to Section 6.2) promptly notify the Trustee, the Rated
Noteholders, any Hedge Counterparty, the Collateral Manager and each Rating
Agency in writing of such Event of Default.


 


5.2.      ACCELERATION OF MATURITY;
RESCISSION AND ANNULMENT


 


(a)                                  If
an Event of Default occurs and is continuing, the Trustee may or, if so
directed by the Holders of a Majority in aggregate principal amount of the
Outstanding Rated Notes, will declare the principal of and accrued interest on
all Notes to be immediately due and payable (except that in the case of an
Event of Default described in Section 5.1(g) or 5.1(h) above,
such an acceleration will occur automatically).


 


(b)                                 Any
Hedge Agreement existing on or after such acceleration may not be terminated by
the Issuer unless and until liquidation of the Collateral has commenced and
annulment of such acceleration may no longer be affected.


 


(c)                                  At
any time after such acceleration of maturity has been made and before a
judgment or decree for payment of the amount due has been obtained by the
Trustee as hereinafter provided in this Section 5, the Trustee may reverse
such acceleration and its consequences if the Trustee determines that:


 


(1)                                  the
Issuer has paid or deposited with the Trustee funds sufficient to pay:


 


(i)                                     all
overdue installments of principal of and interest on the Notes (including
interest upon the Class C Cumulative Applicable Periodic Interest
Shortfall Amount, the Class D Cumulative Applicable Periodic Interest
Shortfall Amount, the Class E Cumulative Applicable Periodic Interest
Shortfall Amount, the Class F Cumulative Applicable Periodic Interest
Shortfall Amount and the Class G Cumulative Applicable Periodic Interest
Shortfall Amount, respectively, at the Applicable Periodic Interest Rate and,
to the extent that payment of such interest is lawful, upon Defaulted Interest
at the Applicable Periodic Interest Rate);


 


(ii)                                  any
accrued and unpaid amounts (including termination payments, if any) payable by
the Issuer pursuant to any Hedge Agreement;


 


(iii)                               all unpaid taxes and
Administrative Expenses, any accrued and unpaid Senior Collateral Management
Fee, and other sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;


 


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(2)                                  the
Trustee has determined that all Events of Default of which it has actual
knowledge, other than the nonpayment of the principal of or interest on the
Rated Notes that have become due solely by such acceleration, have been cured;
and


 


(3)                                  any
Hedge Agreement in effect immediately prior to such acceleration shall remain
in effect.


 


provided that the Trustee shall
have obtained (and shall be entitled to rely upon) a certification of an
Independent accounting firm of national reputation as to the sufficiency of the
amounts in Section 5.2(c)(1) above, which certification shall be
conclusive evidence as to such sufficiency. 
In addition, the Trustee may, but is not required to, obtain, at the
Issuer’s expense (and may rely upon), an Opinion of Counsel as to the matters
in Sections 5.2(c)(2) and (3) above.


 


At any such time as the Trustee shall reverse such
acceleration and its consequences, the Trustee shall preserve the Collateral in
accordance with the provisions of Section 5.5; provided that,
if the conditions for liquidation of the Collateral are satisfied pursuant to Section 5.5,
the Rated Notes may be accelerated pursuant to Section 5.2(a).


 


No such reversal of acceleration shall affect any
subsequent Default or impair any right consequent thereon.


 


5.3.      COLLECTION OF INDEBTEDNESS AND
SUITS FOR ENFORCEMENT BY TRUSTEE


 


The Co-Issuers (or, with respect to the Class F
Notes and the Class G Notes, the Issuer only) covenant that if a Default
shall occur in respect of the payment of any principal of or interest on any Class A
Note, the payment of principal of or interest on any Class B Note (but
with respect to interest, only after the Class A Notes and all interest
accrued thereon have been paid in full), the payment of principal of or
interest on any Class C Note (but with respect to interest, only after the
Class A Notes and Class B Notes and all interest accrued thereon have
been paid in full), the payment of principal of or interest on any Class D
Note (but with respect to interest, only after the Class A Notes, the Class B
Notes and the Class C Notes and all interest accrued thereon have been
paid in full), the payment of principal of or interest on any Class E Note
(but with respect to interest, only after the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes and all interest
accrued thereon have been paid in full), the payment of principal of or
interest on any Class F Note (but with respect to interest, only after the
Class A Notes, the Class B Notes, the Class C Notes, the Class D
Notes and the Class E Notes and all interest accrued thereon have been
paid in full) or the payment of principal of or interest on any Class G
Note (but with respect to interest, only after the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes, the Class E Notes
and the Class F Notes and all interest accrued thereon have been paid in
full), the Co-Issuers (or, with respect to the Class F Notes and the Class G
Notes, the Issuer only) will, upon demand of the Trustee or any affected Rated
Noteholder, pay to the Trustee, for the benefit of the Holder of such Rated
Note, the whole amount, if any, then due and payable on such Rated Note for
principal and interest, with interest upon the overdue principal and, to the
extent that payments of such interest shall be legally enforceable, upon
overdue installments of interest, at the Applicable Periodic Interest Rate and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee and such Rated Noteholder and their
respective agents and counsel.


 


If either of the Co-Issuers (or, in the case of the Class G
Notes and the Class F Notes, the Issuer only), fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a Proceeding for the collection of the sums so due
and unpaid, and may, and shall, upon the direction by a the Holders of Majority
of the then Aggregate Outstanding Amount of


 


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the Notes of the
Controlling Class (and, if the action of the Issuer or the Co-Issuer
pursuant to such direction would have a material adverse effect on the Initial
Hedge Counterparty, the Initial Hedge Counterparty), prosecute such Proceeding
to judgment or final decree, and may enforce the same against the Issuer or the
Co-Issuers, as applicable, or any other obligor upon the Rated Notes and
collect the amounts adjudged or decreed to be payable in the manner provided by
law out of the Collateral; provided that a
Holder of a Rated Note may institute any proceeding if (i) such Holder
previously has given to the Trustee written notice of an Event of Default, (ii) except
in the case of a default in the payment of principal or interest, the Holders
of at least 25% of the then Aggregate Outstanding Amount of the Notes of the
Controlling Class have made a written request upon the Trustee to
institute such proceedings in its own name as Trustee and such Holders have
offered the Trustee reasonable indemnity, (iii) the Trustee has, for
thirty (30) days after receipt of notice, request and offer of such indemnity,
failed to institute any such proceeding and (iv) no direction inconsistent
with such written request has been given to the Trustee during such 30-day
period by the Holders of a Majority of the then Aggregate Outstanding Amount of
the Notes of the Controlling Class.


 


If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Secured Parties by such appropriate Proceedings as the Trustee
shall deem most effectual 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 Trustee by this Indenture or
by law.


 


The Holders of a Majority of the then Aggregate Outstanding
Amount of the Notes of the Controlling Class may, in certain cases, waive
any default with respect to such Notes, except (i) a default for more than
five (5) Business Days in the payment, when due and payable, of any
interest on any Note, (ii) a default in the payment of principal on any
Note at its Stated Maturity Date or Redemption Date, (iii) the failure on
any Payment Date to disburse amounts available in the Collection Account in
accordance with Section 11.1 and continuation of such failure for a period
of three (3) Business Days, (iv) certain events of bankruptcy or
insolvency with respect to the Co-Issuers (or, in the case of the Class G
Notes and the Class F Notes, the Issuer only) or (v) a default in
respect of any provision of the Indenture that cannot be modified or amended
without the waiver or consent of the Holder of each Outstanding Note adversely
affected thereby.


 


In case there shall be pending Proceedings relative to
the Issuer or the Co-Issuer or any other obligor upon the Rated Notes or any
Hedge Agreement under the Bankruptcy Code or any other applicable bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer, the Co-Issuer
or their respective property or such other obligor or its property, or in case
of any other comparable Proceedings relative to the Issuer, the Co-Issuer or
other obligor upon the Rated Notes or Hedge Agreement, or the creditors or
property of the Issuer, the Co-Issuer or such other obligor, the Trustee,
regardless of whether the principal of any Rated Notes or Hedge Agreement shall
then be due and payable as therein expressed or by declaration or otherwise and
regardless of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.3, shall be entitled and empowered, by
intervention in such Proceedings or otherwise:


 


(a)                                  to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Rated Notes or any Hedge Agreement upon
direction by a Majority of the Controlling Class, and to file such other papers
or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and


 


78

















 


liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee) and of the Rated Noteholders allowed
in any Proceedings relative to the Issuer, the Co-Issuer or other obligor upon
the Rated Notes or to the creditors or property of the Issuer, the Co-Issuer or
such other obligor;


 


(b)                                 unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of the Rated Notes, upon the direction of such Holders, in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency Proceedings or person performing similar
functions in comparable Proceedings; and


 


(c)                                  to
collect and receive any amounts or other property payable to or deliverable on
any such claims, and to distribute all amounts received with respect to the
claims of the Rated Noteholders and of the Trustee on behalf of the Rated
Noteholders and the Trustee; and any trustee, receiver or liquidator, custodian
or other similar official is hereby authorized by each of the Rated Noteholders
to make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Rated Noteholders, to pay to
the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other reasonable expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith.


 


Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or vote for or accept or adopt on behalf
of any Rated Noteholder or the Initial Hedge Counterparty, any plan of
reorganization, arrangement, adjustment or composition affecting the Rated
Notes or the rights of any Holder thereof or the Initial Hedge Counterparty, or
to authorize the Trustee to vote in respect of the claim of any Rated
Noteholder or the Initial Hedge Counterparty in any such Proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
person.


 


In any Proceedings brought by the Trustee on behalf of
the Holders, the Trustee shall be held to represent, subject to Section 6.17,
all the Secured Parties if applicable, pursuant to Section 6.17.


 


Notwithstanding anything in this Section 5.3 to
the contrary, the Trustee may not sell or liquidate the Collateral or institute
Proceedings in furtherance thereof pursuant to this Section 5.3 except in
accordance with Section 5.5(a).


 


5.4.      REMEDIES


 


(a)                                  If
an Event of Default shall have occurred and be continuing, and the Notes have
been declared due and payable and such declaration and its consequences have
not been rescinded and annulled, the Co-Issuers agree that, in addition to the
requirements of Section 5.5(a), the Trustee may, after giving notice to
the Noteholders, the Collateral Manager, each Hedge Counterparty and each
Rating Agency, and with the consent of the Holders of a Majority of the then
Aggregate Outstanding Amount of the Notes of the Controlling Class, and shall,
upon written direction by the Holders of a Majority of the then Aggregate
Outstanding Amount of the Notes of the Controlling Class, to the extent
permitted by applicable law, exercise one or more of the following rights,
privileges and remedies:


 


(1)                                  institute
Proceedings for the collection of all amounts then payable on the Notes or
otherwise payable under this Indenture, whether by declaration or otherwise,


 


79

















 


enforce any judgment obtained, and collect from the
Collateral any amounts adjudged due;


 


(2)                                  institute
Proceedings from time to time for the complete or partial foreclosure of this
Indenture with respect to the Collateral;


 


(3)                                  exercise
any remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Secured Parties
hereunder; and


 


(4)                                  subject
to Section 5.4(d) below, exercise any other rights and remedies that
may be available at law or in equity;


 


provided that the Trustee may
not sell or liquidate the Collateral or institute Proceedings in furtherance
thereof pursuant to this Section 5.4 except in accordance with Section 5.5(a).


 


The Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking firm of national reputation as to
the feasibility of any action proposed to be taken in accordance with this Section 5.4
and as to the sufficiency of the proceeds and other amounts receivable with
respect to the Collateral to make the required payments of principal of and
interest on the Notes, which opinion shall be conclusive evidence as to such
feasibility or sufficiency.


 


(b)                                 If
an Event of Default as described in Section 5.1(f) shall have
occurred and be continuing, the Trustee may, and at the request of at least 25%
of the Holders of the then Aggregate Outstanding Amount of the Notes of the
Controlling Class shall, institute a Proceeding solely to compel performance
of the covenant or agreement or to cure the representation or warranty, the
breach of which gave rise to the Event of Default under such Section, and
enforce any equitable decree or order arising from such proceeding; provided that (i) such request does not conflict with
any provision in this Indenture, (ii) the Trustee determines that such
action will not involve the Trustee incurring any liability (unless the Trustee
is indemnified to its satisfaction against any such liability) and (iii) the
Trustee may take other action deemed proper by the Trustee, that is not
inconsistent with such direction.


 


(c)                                  Upon
any sale of the Collateral, whether made under the power of sale hereby given
or by virtue of judicial proceedings, the Initial Purchasers, any Hedge
Counterparty, any Noteholder or Noteholders may bid for and purchase the
Collateral or any part thereof and, upon compliance with the terms of sale, may
hold, retain, possess or dispose of such property in its or their own absolute
right without accountability.


 


Upon any sale of the Collateral, whether made under
the power of sale hereby given or by virtue of judicial proceedings, the
receipt of the Trustee, or of the Officer making a sale under judicial
proceedings, shall be a sufficient discharge to the purchaser or purchasers at
any sale for its or their purchase price, and such purchaser or purchasers
shall not be obliged to see to the application thereof.


 


Any such sale, whether under any power of sale hereby
given or by virtue of judicial proceedings, shall bind the Co-Issuers, the
Trustee and the Noteholders, shall operate to divest all right, title and
interest whatsoever, either at law or in equity, of each of them in


 


80

















 


and to the property sold, and shall be a perpetual
bar, both at law and in equity, against each of them and their successors and
assigns, and against any and all Persons claiming through or under them.


 


(d)                                 Notwithstanding
any other provision of this Indenture, the Trustee may not, prior to the date
which is one year and one day, or if longer the applicable preference period
then in effect, after the payment in full of all Notes, institute against, or
join any other Person in instituting against, the Issuer or the Co-Issuer any
bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation
proceedings, or other proceedings under federal or state bankruptcy or similar
laws (of any jurisdiction).  Nothing in
this Section 5.4 shall preclude, or be deemed to stop, the Trustee (i) from
taking any action prior to the expiration of the aforementioned one year and
one day period, or if longer the applicable preference period then in effect,
in (A) any case or proceeding voluntarily filed or commenced by the Issuer
or the Co-Issuer or (B) any involuntary insolvency proceeding filed or
commenced by a Person other than the Trustee, or (ii) from commencing
against the Issuer or the Co-Issuer or any of its properties any legal action
which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium,
liquidation or similar proceeding.


 


5.5.      PRESERVATION OF COLLATERAL


 


(a)                                  If
an Event of Default shall have occurred and be continuing when any Class of
Rated Notes is Outstanding, the Trustee shall retain the Collateral securing
the Indenture Issued Notes and any Hedge Agreement intact, collect and cause
the collection of the proceeds thereof and make all payments and deposits and
maintain all accounts in respect of the Collateral, the Rated Notes and any
Hedge Agreement in accordance with Section 11.1 and the provisions of
Sections 10, 12 and 13 unless:


 


(1)                                  the
Trustee, pursuant to Section 5.5(c), determines (such determinations may
be based upon a certificate from the Collateral Manager) that the anticipated
proceeds of a sale or liquidation of the Collateral (after deducting reasonable
expenses relating to such sale or liquidation) would be sufficient to discharge
in full the Redemption Prices then due on the Rated Notes, any amounts required
to be paid under any Hedge Agreement, all unreimbursed Interest Advances
together with interest thereon, all unpaid Administrative Expenses and any
accrued and unpaid Senior Collateral Management Fee (to the extent not waived
by the Collateral Manager) and the Holders of a Majority of the then Aggregate
Outstanding Amount of Rated Notes agrees with such determination; or


 


(2)                                  the
Holders of at least 662/3% of the Aggregate Outstanding
Amount of the Rated Notes of the Controlling Class (and, unless it will be
paid in full all amounts owing to it by the Issuer, the Initial Hedge
Counterparty), subject to the provisions hereof, and subject to the Trustee
determining that such action will not involve the Trustee incurring any
liability, (unless the Trustee is indemnified to its satisfaction against any
such liability) direct the sale and liquidation of the Collateral.


 


For purposes of Section 5.5(a)(2), if the Initial
Hedge Counterparty shall fail to vote to direct the sale and liquidation of the
Collateral within three Business Days after written notice from the Issuer or
the Trustee requesting a vote pursuant to such Section 5.5(a)(2), the
Initial Hedge Counterparty shall not be entitled to participate in the vote
requested by


 


81

















 


such notice.  The
Trustee shall give written notice of the retention of the Collateral to the
Issuer with a copy to the Co-Issuer, each Holder of the Rated Notes and the
Initial Hedge Counterparty.  So long as
such Event of Default is continuing, any such retention pursuant to this Section 5.5(a) may
be rescinded at any time when the conditions specified in clause Section 5.5(a)(1) or
(2) exist.


 


(b)                                 Nothing
contained in Section 5.5(a) shall be construed to require the Trustee
to preserve the Collateral securing the Indenture Issued  Notes if prohibited by applicable law.


 


(c)                                  In
determining whether the condition specified in Section 5.5(a)(1) exists,
the Trustee shall obtain bid prices with respect to each security contained in
the Collateral from two nationally recognized dealers (or if it is unable in
good faith to obtain such bid prices from two nationally recognized dealers,
one nationally recognized dealer), as specified by the Collateral Manager in
writing, which are Independent from each other and the Collateral Manager, at
the time making a market in such securities and shall compute the anticipated
proceeds of sale or liquidation on the basis of the lower of such bid prices
for each such security.  In addition, for
the purposes of determining issues relating to the execution of a sale or
liquidation of the Pledged Securities and the execution of a sale or other
liquidation thereof in connection with a determination whether the condition
specified in Section 5.5(a)(1) exists, the Trustee may retain and
rely on an opinion of an Independent investment banking firm of national
reputation.


 


The Trustee shall deliver to the Noteholders, the
Initial Hedge Counterparty, the Rating Agencies and the Co-Issuers a report
stating the results of any determination required pursuant to Section 5.5(a)(1) no
later than ten (10) days after making such determination but in any event
prior to the sale or liquidation of the Collateral.  The Trustee shall make the determinations
required by Section 5.5(a)(1) within thirty (30) days after an Event
of Default and at the request of the Holders of a Majority of the then
Aggregate Outstanding Amount of the Notes of the Controlling Class at any
time during which the Trustee retains the Collateral pursuant to Section 5.5(a)(1).  In the case of each calculation made by the
Trustee pursuant to Section 5.5(a)(1), the Trustee shall obtain a letter
of an Independent certified public accountant confirming the accuracy of the
computations of the Trustee and certifying their conformity to the requirements
of this Indenture.  In determining
whether the Holders of the requisite percentage of any Class of Rated
Notes or the requisite percentage of Income Noteholders have given any
direction or notice or have agreed pursuant to Section 5.5(a), any Holder
of a Rated Note of a Class or Income Notes who is also a Holder of Rated
Notes of another Class or of Income Notes or any Affiliate of any such
Holder shall be counted as a Holder of each such Rated Note and/or Income Note
for all purposes.


 


(d)                                 If
an Event of Default shall have occurred and be continuing at a time when no
Rated Note is Outstanding, the Trustee shall retain the Collateral securing the
Indenture Issued Notes and any Hedge Agreement intact, collect and cause the
collection of the proceeds thereof and make and apply all payments and deposits
and maintain all accounts in respect of the Collateral and the Rated Notes in
accordance with Section 11.1 and the provisions of Section 10 and Section 12
unless a Majority of the Income Noteholders direct the sale and liquidation of
the Collateral.


 


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5.6.      TRUSTEE MAY ENFORCE CLAIMS
WITHOUT POSSESSION


 


All rights of action and of asserting claims under
this Indenture, or under any of the Rated Notes, may be enforced by the Trustee
without the possession of any of the Hedge Agreements or the Rated Notes or the
production thereof in any trial or other Proceedings relative thereto, and any
action or Proceedings instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment, subject to the
payment of the reasonable expenses, disbursements and compensation of the
Trustee, each predecessor trustee and their respective agents and attorneys and
counsel, shall be for the benefit of the Secured Parties and shall be applied
as set forth in Section 5.7.


 


5.7.      APPLICATION OF FUNDS COLLECTED


 


Any funds collected by the Trustee with respect to any
Hedge Agreement or the Rated Notes pursuant to this Section 5 and any
funds that may then be held or thereafter received by the Trustee with respect
to any Hedge Agreements or the Rated Notes hereunder shall be applied subject
to Section 13.1 and in accordance with the provisions of Section 11.1(c),
at the date or dates fixed by the Trustee.


 


5.8.      LIMITATION ON SUITS


 


Only the Trustee may pursue remedies available
hereunder and no Holder of any Note shall have any right to institute any
Proceedings, judicial or otherwise, with respect to this Indenture, or its Note
or otherwise, for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:


 


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


 


(b)                                 except
in the case of a default in the payment of principal or interest, the Holders
or Holders of at least 25% of the then Aggregate Outstanding Amount of the
Rated Notes of the Controlling Class shall have made a written request to
the Trustee to institute Proceedings in respect of such Event of Default in its
own name as Trustee hereunder and such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;


 


(c)                                  the
Trustee for thirty (30) days after its receipt of such notice, request and
offer of indemnity has failed to institute any such Proceeding; and


 


(d)                                 no
direction inconsistent with such written request has been given to the Trustee
during such 30-day period by the Holders of a Majority of the then Aggregate
Outstanding Amount of the Rated Notes;


 


it being understood and intended that no one or more
Holders of Rated Notes shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb or
prejudice the rights of any other Holders of Notes or to obtain or to seek to
obtain priority or preference over any other Holders of the Notes of the same Class or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders of Notes of the same
Class.  In addition, any action taken by
any one or more of the Holders of Notes shall be subject to and in accordance
with Sections 13.1 and 11.1(d).


 


Notwithstanding any other provisions of this Indenture
but subject to Section 5.8(d), if the Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of the
Rated Notes, each representing less than a Majority of the then Aggregate
Outstanding


 


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Amount of Rated Notes,
the Trustee shall follow the instructions of the group representing the higher
percentage of aggregate principal amount of Outstanding Rated Notes.


 


5.9.      UNCONDITIONAL RIGHTS OF RATED
NOTEHOLDERS (OTHER THAN THE CLASS G NOTEHOLDERS) TO RECEIVE PRINCIPAL AND
INTEREST


 


Notwithstanding any other provision in this Indenture
(other than Section 2.6(i)), the Holder of any Indenture Issued Note shall
have the right, which is absolute and unconditional, to receive payment of the
principal of and interest (if any) on such Indenture Issued Note as such
principal and/or interest become due and payable in accordance with
Sections 13.1 and 11.1(c) and, subject to the provisions of Section 5.8,
to institute proceedings for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.  Holders of the Class B Notes, the Class C
Notes, the Class D Notes, the Class E Notes, the Class F Notes
and the Class G Notes shall have no right to institute proceedings for the
enforcement of any payment until such time as no Class of Rated Note that
is senior to such Class of them remains Outstanding, which right shall be
subject to the provisions of Section 5.8, and shall not be impaired
without the consent of any such Holder.


 


5.10.                        RESTORATION OF RIGHTS AND
REMEDIES


 


If the Trustee or any Rated Noteholder has instituted
any Proceeding to enforce any right or remedy under this Indenture and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Rated Noteholder, then and in
every such case the Co-Issuers, the Trustee and the Rated Noteholder shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Secured Parties shall continue as though no such Proceeding had
been instituted.


 


5.11.                        RIGHTS AND REMEDIES CUMULATIVE


 


No right or remedy herein conferred upon or reserved
to the Trustee or to the Rated 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 by 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.


 


5.12.                        DELAY OR OMISSION NOT WAIVER


 


No delay or omission of the Trustee, any Rated
Noteholder or the Initial Hedge Counterparty 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 Section 5 or by law to the Trustee, the Rated Noteholders or the
Initial Hedge Counterparty may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Rated Noteholders the Initial
Hedge Counterparty, as the case may be.


 


5.13.                        CONTROL BY CONTROLLING CLASS


 


Notwithstanding any other provision of this Indenture
(but subject to the proviso in the definition of “Outstanding” in Section 1.1(a)),
the Holders of a Majority of the then Aggregate Outstanding Amount of the Rated
Notes shall have the right to cause the institution of and direct the time,
method and place of conducting any Proceeding for any remedy available to the
Trustee, or of any sale of the Collateral, in whole or in part, provided that:


 


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(a)                                  such
direction shall not conflict with any rule of law or with this Indenture;


 


(b)                                 the
Trustee may take any other action deemed proper by it that is not inconsistent
with such direction; provided that,
subject to Section 6.1, the Trustee need not take any action that it
determines might involve it in liability (unless the Trustee has received an
indemnity reasonably satisfactory to it against such liability as set forth
below);


 


(c)                                  the
Trustee shall have been provided with an indemnity reasonably satisfactory to
it; and


 


(d)                                 any
direction to the Trustee to undertake a Sale of the Collateral shall be made
only pursuant to, and in accordance with, Sections 5.4 and 5.5.


 


5.14.                      WAIVER OF PAST DEFAULTS


 


The Holders of a Majority of the then Aggregate Outstanding
Amount of the Notes of the Controlling Class may, in certain cases waive
any past Default and its consequences, except:


 


(a)                                  a
Default for more than five (5) Business Days in the payment, when due
and payable, of any interest on any Rated Note; or


 


(b)                                 a
Default in the payment of principal on any Note at its Stated Maturity Date or
Redemption Date; or


 


(c)                                  the
failure on any Payment Date to disburse amounts available in the Collection
Account in accordance with Section 11.1 and the continuation of such
failure for a period of three (3) Business Days; or


 


(d)                                 a
Default arising under Section 5.1(g) or 5.1(h); or


 


(e)                                  a
Default in respect of any provision of this Indenture that under Section 8.2
cannot be modified or amended without the waiver or consent of the Holder of
each Outstanding Note adversely affected thereby.


 


In the case of any such waiver, (i) the
Co-Issuers, the Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder, respectively, but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto, and (ii) the Trustee shall promptly give written notice of any
such waiver to the Collateral Manager and each Holder of Rated Notes.  The Rating Agencies shall be notified by the
Issuer of any such waiver.


 


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 thereto.


 


5.15.                      UNDERTAKING FOR COSTS


 


All parties to this Indenture agree, and each Holder
of any Rated Note by its acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to
the merits and good faith of the


 


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claims or defenses made
by such party litigant; but the provisions of this Section 5.15 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Rated Noteholder, or group of Rated Noteholders, holding in the aggregate more
than 10% in Aggregate Outstanding Amount of the Controlling Class, or to any
suit instituted by any Rated Noteholder for the enforcement of the payment of
the principal of or interest on any Rated Note on or after the Stated Maturity
Date expressed in such Rated Note (or, in the case of redemption, on or after
the applicable Redemption Date).


 


5.16.                      WAIVER OF STAY OR EXTENSION LAWS


 


The Co-Issuers covenant (to the extent that they may
lawfully do so) that they will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force
(including but not limited to filing a voluntary petition under Chapter 11
of the Bankruptcy Code and by the voluntary commencement of a proceeding or the
filing of a petition seeking winding up, liquidation, reorganization or other
relief under any bankruptcy, insolvency, receivership or similar law now or
hereafter in effect), which may affect the covenants, the performance of or any
remedies under this Indenture; and the Co-Issuers (to the extent that they may
lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and covenant that they will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


5.17.                      SALE OF COLLATERAL


 


(a)                                 The
power to effect any sale (a Sale) of any portion of the Collateral
pursuant to Sections 5.4 and 5.5 shall not be exhausted by any one or more
Sales as to any portion of such Collateral remaining unsold, but shall continue
unimpaired until the entire Collateral shall have been sold or all amounts
secured by the Collateral shall have been paid. 
The Trustee hereby expressly waives its rights to any amount fixed by
law as compensation for any Sale; provided that
the Trustee shall be authorized to deduct the reasonable costs, charges and
expenses incurred by it in connection with such Sale from the proceeds thereof
notwithstanding the provisions of Section 6.7.


 


(b)                                The
Trustee may bid for and acquire any portion of the Collateral in connection
with a public Sale thereof, by crediting all or part of the net proceeds of such
Sale after deducting the reasonable costs, charges and expenses incurred by the
Trustee in connection with such Sale notwithstanding the provisions of Section 6.7.  The Rated Notes and the Hedge Agreement, if
any, need not be produced in order to complete any such Sale, or in order for
the net proceeds of such Sale to be credited against amounts owing on the Rated
Notes.  The Trustee may hold, lease,
operate, manage or otherwise deal with any property so acquired in any manner
permitted by law in accordance with this Indenture.


 


(c)                                 If
any portion of the Collateral consists of securities not registered under the
Securities Act (Unregistered Securities), the
Trustee may, but shall not be required to, seek an Opinion of Counsel, or, if
no such Opinion of Counsel can be obtained, with the consent of a Majority of
the Controlling Class seek, a no-action position from the Commission or
any other relevant federal or state regulatory authorities, regarding the
legality of a public or private sale of such Unregistered Securities.  In no event will the Trustee be required to
register Unregistered Securities under the Securities Act.


 


(d)                                The
Trustee shall execute and deliver an appropriate instrument of conveyance
transferring its interest in any portion of the Collateral in connection with a
sale thereof.


 


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In addition, the Trustee is hereby irrevocably
appointed the agent and attorney-in-fact of the Issuer to transfer and convey
its interest in any portion of the Collateral in connection with a sale
thereof, and to take all action necessary to effect such sale.  No purchaser or transferee at such a sale
shall be bound to ascertain the Trustee’s authority, to inquire into the
satisfaction of any conditions precedent or see to the application of any
funds.


 


5.18.                      ACTION ON THE RATED NOTES


 


The Trustee’s right to seek and recover judgment on
the Rated Notes or under this Indenture shall not be affected by the seeking or
obtaining of or application for any other relief under or with respect to this
Indenture.  Neither the lien of this
Indenture nor any rights or remedies of the Secured Parties shall be impaired
by the recovery of any judgment by the Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Collateral or
upon any of the assets of the Issuer or the Co-Issuer.


 


ARTICLE VI


 


THE TRUSTEE


 


6.1.      CERTAIN DUTIES AND
RESPONSIBILITIES


 


(a)                                  Except
during the continuance of an Event of Default:


 


(1)                                 the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and


 


(2)                                 in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; provided that,
in the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they substantially
conform to the requirements of this Indenture and shall promptly, but in any
event within three Business Days in the case of an Officer’s certificate
furnished by the Issuer, notify the party delivering the same if such
certificate or opinion does not conform. 
If a corrected form shall not have been delivered to the Trustee within
15 days after such notice from the Trustee, the Trustee shall promptly notify
the Rated Noteholders and the Initial Hedge Counterparty.


 


(b)                                In
case an Event of Default actually known to the Trustee has occurred and is
continuing, the Trustee shall, prior to the receipt of directions, if any, from
a Majority of the Controlling Class, exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
its exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.


 


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


 


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(1)                                 This
Section 6.1(c) shall not be construed to limit the effect of Section 6.1(a);


 


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


 


(3)                                 the
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 direction of the Issuer or the
Co-Issuer in accordance with this Indenture and/or a Majority (or such other
percentage as may be required by the terms hereof) of the Aggregate
Outstanding Amount of the Controlling Class (or other Class if
required or permitted by the terms hereof) relating to the time, method
and place of conducting any Proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture;


 


(4)                                 no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers
contemplated hereunder, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it (if the amount of such funds or risk or liability
does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(1) net
of the amounts specified in Section 6.8(a)(1), the Trustee shall be deemed
to be reasonably assured of such repayment) unless such risk or liability
relates to performance of its ordinary services, including under Section 5,
under this Indenture; and


 


(5)                                 the
Trustee shall not be liable to the Rated Noteholders for any action taken or
omitted by it at the direction of the Co-Issuers (in the case of the Rated
Notes other than the Class G Notes and the Class F Notes), the Issuer
(in the case of the Class G Notes and the Class F Notes), the
Collateral Manager and/or the Holders of the Rated Notes under the
circumstances in which such direction is required or permitted by the terms of
this Indenture.


 


(d)                                For
all purposes under this Indenture, the Trustee shall not be deemed to have
notice or knowledge of any Event of Default described in Section 5.1(e),
5.1(f), 5.1(g) or 5.1(h) unless a Trust Officer assigned to and
working in the Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such an Event of Default or such a
Default, as the case may be, is received by the Trustee at the Corporate Trust
Office.  For purposes of determining the
Trustee’s responsibility and liability hereunder, whenever reference is made in
this Indenture to such an Event of Default or such a Default, as the case may
be, such reference shall be construed to refer only to such an Event of Default
or such a Default, as the case may be, of which the Trustee is deemed to have
notice as described in this Section 6.1(d).


 


(e)                                 Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 6.


 


(f)                                   The
Trustee shall, upon receipt of reasonable (but no less than three Business Days’)
prior written notice, permit any representative of a Holder of a Rated Note or
the Initial Hedge Counterparty, during the Trustee’s normal business hours, to
examine all books of


 


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account, records, reports and other papers of the Trustee relating to
the Rated Notes, to make copies and extracts therefrom (the reasonable
out-of-pocket expenses incurred in making any such copies or extracts to be
reimbursed to the Trustee by such Holder) and to discuss the Trustee’s actions,
as such actions relate to the Trustee’s duties with respect to the Rated Notes,
with the Trustee’s officers and employees responsible for carrying out the
Trustee’s duties with respect to the Rated Notes; provided
that under no circumstances shall the Initial Hedge Counterparty be permitted
to review any documentation containing the names or other indicia of identity
of any of the Noteholders unless any such information (including the number of
shares held by such Noteholder) has been redacted from such documentation.


 


(g)                                With
respect to the security interests created hereunder, the Trustee acts as a
fiduciary for the Rated Noteholders only, and serves as a collateral agent for
the other Secured Parties.


 


6.2.      NOTICE OF DEFAULT


 


Promptly (and in no event later than three Business
Days) after the occurrence of any Default actually known to a Trust Officer of
the Trustee or after acceleration has been made pursuant to Section 5.2,
the Trustee shall send to the Issuer, the PAA Issued Note Paying Agent, each
Rating Agency, (for so long as any Class of Rated Notes is Outstanding),
the Collateral Manager, the Initial Hedge Counterparty and to all Holders of
Rated Notes, as their names and addresses appear on the Note Register, notice
of all Defaults hereunder known to the Trustee, unless such Default shall have
been cured or waived.


 


6.3.      CERTAIN RIGHTS OF TRUSTEE


 


Except as otherwise provided in Sections 6.1 and 8:


 


(a)                                 the
Trustee may rely and shall be protected in acting or refraining from acting in
good faith and in reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
note or other paper or document reasonably believed by it to be genuine and to
have been signed or presented by the proper party or parties;


 


(b)                                any
request or direction of the Issuer or the Co-Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order, as the case may
be;


 


(c)                                 whenever
in the administration of this Indenture the Trustee shall (i) deem it
desirable that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer’s certificate or (ii) be required to determine the
value of any Collateral or funds hereunder or the cashflows projected to be
received therefrom, the Trustee may, in the absence of bad faith on its part,
rely on reports of nationally recognized accountants, investment bankers or
other Persons qualified to provide the information required to make such
determination, including nationally recognized dealers in securities of the
type being valued and securities quotation services;


 


(d)                                as
a condition to the taking or omitting of any action by it hereunder, the
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be


 


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full and complete authorization and protection in
respect of any action taken or omitted by it hereunder in good faith and in
reliance thereon;


 


(e)                                 the
Trustee shall be under no obligation to exercise or to honor any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Rated Noteholders pursuant to this Indenture, unless such Rated Noteholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might reasonably be incurred by it in
compliance with such request or direction;


 


(f)                                   the
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, note or other paper
documents, but the Trustee, in its discretion, may and, upon the written
direction of the Holders of a Majority of the then Aggregate Outstanding Amount
of the Notes of any Class, the Initial Hedge Counterparty or any Rating Agency
shall make such further inquiry or investigation into such facts or matters as
it may see fit or as it shall be directed, and, the Trustee shall be entitled,
on reasonable prior notice to the Co-Issuers, to examine the books and records
of the Co-Issuers or the Collateral Manager relating to the Rated Notes and the
Collateral, personally or by agent or attorney at a time acceptable to the Co-Issuers
or the Collateral Manager in their reasonable judgment during normal business
hours; provided that the Trustee shall, and
shall cause its agents, to hold in confidence all such information, except (i) to
the extent disclosure may be required by law by any regulatory authority and (ii) to
the extent that the Trustee, in its sole judgment, may determine that such
disclosure is consistent with its obligations hereunder;


 


(g)                                the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys; provided that the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent (other than any Affiliate of
the Trustee) appointed and supervised, or attorney appointed, with due
care by it hereunder;


 


(h)                                the
Trustee shall not be liable for any action it takes or omits to take in good
faith that it reasonably and, after the occurrence and during the continuance
of an Event of Default, prudently believes to be authorized or within its
rights or powers hereunder;


 


(i)                                    nothing
herein shall be construed to impose an obligation on the part of the Trustee to
recalculate, evaluate or verify any report, certificate or information received
from the Issuer or Collateral Manager (unless and except to the extent
otherwise expressly set forth herein or upon the request of the Initial Hedge
Counterparty, a Rating Agency or a Majority of the then Aggregate Outstanding
Amount of the Notes of the Controlling Class);


 


(j)                                    the
Trustee shall not be responsible or liable for the actions or omissions of, or
any inaccuracies in the records of, any non-Affiliated custodian, clearing
agency, common depository, Euroclear or Clearstream or for the acts or
omissions of the Collateral Manager or either Co-Issuer;


 


(k)                                 to
the extent any defined term hereunder, or any calculation required to be made
or determined by the Trustee hereunder, is dependent upon or defined by
reference to generally accepted accounting principles in the United States (GAAP), the Trustee shall be entitled
to request and receive (and rely upon) instruction from the Issuer or the


 


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accountants appointed pursuant to 10.14 as to the
application of GAAP in such connection, in any instance;


 


(l)                                    to
the extent permitted by law, the Trustee shall not be required to give any bond
or surety in respect of the execution of this Indenture or otherwise; and


 


(m)                              the
permissive right of the Trustee to take or refrain from taking any actions
enumerated in this Indenture shall not be construed as a duty.


 


(n)                                The
Trustee shall be entitled to conclusively rely upon the Collateral Manager’s
determination that the representations and warranties provided in connection
with the acquisition of a Mezzanine Loan, a Subordinate Mortgage Loan Interest,
a Credit Lease Loan, a Tenant Lease Loan Interest, a Participation Interest or
a Commercial Mortgage Loan comply with the requirements of clause (u) of
the definition of “Eligibility Criteria.”


 


6.4.      AUTHENTICATING AGENTS


 


If the Trustee so chooses the Trustee may appoint one
or more Authenticating Agents with power to act on its behalf and subject to
its direction in the authentication of Indenture Issued Notes in connection
with issuance, transfers and exchanges under Sections 2.4, 2.5 and 8.5, as
fully to all intents and purposes as though each such Authenticating Agent had
been expressly authorized by those Sections to authenticate such Indenture
Issued Notes.  For all purposes of this
Indenture, the authentication of Indenture Issued Notes by an Authenticating
Agent pursuant to this Section 6.4 shall be deemed to be the
authentication of Indenture Issued Notes “by the Trustee”.


 


Any entity into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any entity 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 entity.


 


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


 


The Issuer agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services (provided, however,
that, so long as an Authenticating Agent is the Trustee, or an Affiliate
thereof, such compensation shall be payable by the Trustee, rather than by the
Issuer), and reimbursement for its reasonable expenses relating thereto and the
Trustee shall be entitled to be reimbursed for such payments, subject to Section 6.8.  The provisions of Sections 2.8, 6.5 and 6.6
shall be applicable to any Authenticating Agent.


 


6.5.      NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF RATED NOTES


 


The recitals contained herein and in the Rated Notes,
other than the Certificate of Authentication thereon, shall be taken as the
statements of the Co-Issuers (with respect to the Rated Notes other than the Class F
Notes and the Class G Notes) and the Issuer (with respect to the Class F
Notes and the Class G


 


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Notes), and the Trustee
assumes no responsibility for their correctness.  The Trustee makes no representation as to the
validity or sufficiency of this Indenture (except as may be made with respect
to the validity of the Trustee’s obligations hereunder), of the Collateral or
of the Rated Notes.  The Trustee shall
not be accountable for the use or application by the Co-Issuers of the Rated
Notes (other than the Class F Notes or the Class G Notes), by the
Issuer of the Class F Notes or the Class G Notes or the proceeds
thereof or any amounts paid to either of the Co-Issuers pursuant to the
provisions hereof.


 


6.6.      MAY HOLD RATED NOTES


 


The Trustee, any Note Paying Agent, the Note Registrar
or any other agent of the Co-Issuers, in its individual or any other capacity,
may become the owner or pledgee of Rated Notes and, may otherwise deal with the
Co-Issuers or any of their Affiliates, with the same rights it would have if it
were not Trustee, Note Paying Agent, Note Registrar or such other agent.


 


6.7.      FUNDS HELD IN TRUST


 


Funds held by the Trustee hereunder shall be held in
trust to the extent required herein.  The
Trustee shall be under no liability for interest on any funds received by it
hereunder except as otherwise agreed upon with the Issuer and except to the
extent of income or other gain on investments which are deposits in or
certificates of deposit of the Trustee in its commercial capacity and income or
other gain actually received by the Trustee on Eligible Investments.


 


6.8.      COMPENSATION AND REIMBURSEMENT


 


(a)                                 The
Issuer agrees:


 


(1)                                 to
pay the Trustee on each Payment Date the Trustee Fee, the PAA Issued Note
Paying Agent Fee and reasonable compensation for all other services, including
custodial 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);


 


(2)                                 except
as otherwise expressly provided herein, to reimburse the Trustee (subject to
any written agreement between the Issuer and the Trustee) in a timely
manner upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture or in the enforcement of any provision hereof and expenses related to
the maintenance and administration of the Collateral (including securities
transaction charges and the reasonable compensation and expenses and
disbursements of its agents and legal counsel and of any accounting firm or
investment banking firm employed by the Trustee pursuant to Section 5.2,
5.4, 5.5, 6.3(c), 6.3(k), 10.12 or 10.14, except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith but only to the extent any such securities transaction charges have not
been waived during a Due Period due to the Trustee’s receipt of a payment from
a financial institution with respect to certain Eligible Investments);


 


(3)                                 to
indemnify the Trustee and its Officers, directors, employees and agents for,
and to hold them harmless against, any loss, liability or expense incurred by
it without negligence, willful misconduct or bad faith on their part, arising
out of or in connection with the acceptance or administration of this trust,
including the


 


92

















 


reasonable costs and expenses (including reasonable
counsel fees) of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or duties
hereunder; and


 


(4)                                 to
pay the Trustee reasonable additional compensation together with its expenses
(including reasonable counsel fees) for any collection action taken pursuant to
Section 6.14.


 


(b)                                The
Issuer may remit payment for such fees and expenses to the Trustee or, in the
absence thereof, the Trustee may from time to time deduct payment of its fees
and expenses hereunder from funds on deposit in the Expense Account pursuant to
Section 11.1.


 


(c)                                 The
Trustee hereby agrees not to cause the filing of a petition in bankruptcy
against the Issuer for the non-payment to the Trustee of any amounts provided
by this Section 6.8 until at least one year and one day, or if longer the
applicable preference period then in effect, after the payment in full of all
Rated Notes.


 


(d)                                The
amounts payable to the Trustee pursuant to Sections 6.8(a)(2) through (4) (other
than amounts received by the Trustee from financial institutions under Section 6.8(a)(2) above)
shall not, except as provided by Section 11.1(a)(24) or Section 11.1(b)(20),
exceed on any Payment Date the limitation described in Section 11.1(a)(1) for
such Payment Date; provided that (A) the
Trustee shall not institute any proceeding for enforcement of such lien except
in connection with an action pursuant to Section 5.3 or 5.4 for the
enforcement of the lien of this Indenture for the benefit of the Secured
Parties and (B) the Trustee may only enforce such a lien in conjunction
with the enforcement of the rights of the Secured Parties in the manner set
forth in Section 5.4.


 


The Trustee shall, subject to the Priority of
Payments, receive amounts pursuant to this Section 6.8 and Section 11.1
only to the extent that the payment thereof will not result in an Event of
Default and the failure to pay such amounts to the Trustee will not, by itself,
constitute an Event of Default.  Subject
to Section 6.10, the Trustee shall continue to serve as Trustee under this
Indenture notwithstanding the fact that the Trustee shall not have received
amounts due it hereunder and hereby agrees not to cause the filing of a
petition in bankruptcy against the Co-Issuers for the nonpayment to the Trustee
of any amounts provided by this Section 6.8 until at least one year and
one day, or, if longer, the applicable preference period then in effect, after
the payment in full of all Rated Notes. 
No direction by the Holders of a Majority of the then Aggregate Outstanding
Amount of the Notes of the Controlling Class shall affect the right of the
Trustee t o collect amounts owed to it under this Indenture.


 


The indemnifications in favor of the Trustee in this Section 6.8
shall (i) survive any resignation or removal of any Person acting as
Trustee (to the extent of any indemnified liabilities, costs, expenses and
other amounts arising or incurred prior to, or arising out of actions or
omissions occurring prior to, such resignation or removal) and (ii) apply
to the Trustee in its capacities as Custodian, Note Paying Agent, Rated Note
Calculation Agent and Authenticating Agent.


 


6.9.      CORPORATE TRUSTEE REQUIRED;
ELIGIBILITY


 


There shall at all times be a Trustee hereunder which
shall be a bank, corporation or trust company organized and doing business under
the laws of the United States or of any State thereof, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least U.S.$100,000,000, subject to supervision or examination by federal
or state banking authorities,


 


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and insured by the
Federal Deposit Insurance Corporation, whose long-term senior unsecured debt is
rated “AA-” by S&P (or “A+” by S&P, if the Trustee’s short-term
unsecured debt rating is at least “A-1” by S&P), or an entity with respect
to which Rating Agency Confirmation has been received.  If such entity publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 6.9,
the combined capital and surplus of such entity shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 6.9, it shall resign immediately in the manner and with the
effect hereinafter specified in this Section 6.


 


6.10.                      RESIGNATION AND REMOVAL;
APPOINTMENT OF SUCCESSOR


 


(a)                                 No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Section 6 shall become effective until the acceptance of
appointment by the successor Trustee under Section 6.11.


 


(b)                                The
Trustee may resign at any time by giving 90 days prior written notice thereof
to the Co-Issuers, the Rated Noteholders, the Collateral Manager, the Initial
Hedge Counterparty and each Rating Agency. 
Upon receiving such notice of resignation, or if the Trustee is removed
or becomes incapable of acting, or if a vacancy shall occur in the office of
the Trustee for any reason, the Issuer shall (after consultation with the
Collateral Manager) promptly propose a successor trustee for approval by the
Holders of 662/3% of the then Aggregate
Outstanding Amount of the Notes of each Class of Rated Notes.  A proposed successor trustee approved in
accordance with the preceding sentence shall be appointed by the Co-Issuers as
successor trustee by written instrument, in duplicate, executed by an Authorized
Officer of the Issuer and an Authorized Officer of the Co-Issuer, one copy of
which shall be delivered to the Trustee so resigning and one copy to the
successor trustee or trustees, together with a copy to each Rated
Noteholder.  If no successor trustee
shall have been appointed and an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee or any Holder of a
Rated Note or the Initial Hedge Counterparty on behalf of itself and all others
similarly situated, subject to Section 5.15, may petition any court of
competent jurisdiction for the appointment of a successor Trustee.


 


(c)                                 The
Trustee may be removed at any time by an Act of the Holders of at least 662/3% of the then Aggregate Outstanding
Amount of the Notes of each Class of Rated Notes delivered to the Trustee
and to the Co-Issuers.


 


(d)                                If
at any time:


 


(1)                                 the
Trustee shall cease to be eligible under Section 6.9 and shall fail to
resign after written request therefor by any Holder; or


 


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


 


then, in any such case (subject to Section 6.10(a)),
(A) the Co-Issuers, by Issuer Order shall remove the Trustee, or (B) subject
to Section 5.15, any Holder or the Initial Hedge Counterparty


 


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may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.


 


(e)                                 The
Co-Issuers shall give prompt notice of each resignation and each removal of the
Trustee and each appointment of a successor Trustee by mailing written notice
of such event by first class mail, postage prepaid, to each Rating Agency, the
Initial Hedge Counterparty, the Collateral Manager and the Holders as their
names and addresses appear in the Note Register.  Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.  If the Co-Issuers fail to mail such notice
within ten days after acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be given at the expense of the
Co-Issuers.


 


6.11.                      ACCEPTANCE OF APPOINTMENT BY
SUCCESSOR


 


Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Co-Issuers and the retiring Trustee
(with copies to the Collateral Manager) an instrument accepting such
appointment.  Upon delivery of the
required instruments, the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any other act, deed or
conveyance, shall become vested with all the rights, powers, trusts, duties and
obligations of the retiring Trustee; but, on request of the Co-Issuers or a
Majority of the then Aggregate Outstanding Amount of the Notes of any Class of
Notes or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, fees, indemnities and expenses then unpaid, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and funds held by such retiring Trustee
hereunder, subject nevertheless to its lien, if any, provided for in Section 6.8(d).  Upon request of any such successor Trustee,
the Co-Issuers shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.


 


No successor Trustee shall accept its appointment
unless (a) at the time of such acceptance such successor shall be
qualified and eligible under Section 6.9 and the other provisions of this Section 6
and (b) a Rating Agency Confirmation shall have been obtained with respect
to the appointment of such successor Trustee shall have been satisfied.  No appointment of a successor Trustee shall
become effective if the Holders of a Majority of the then Aggregate Outstanding
Amount of the Notes of the Controlling Class objects to such appointment;
and no appointment of a successor Trustee shall become effective until the date
ten days after notice of such appointment has been given to each Rated
Noteholder and each Rating Agency.


 


6.12.                      MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS OF TRUSTEE


 


Any Person into which the Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Trustee shall be a party,
or any Person succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder; provided such Person shall be otherwise qualified and
eligible under this Section 6, without the execution or filing of any
paper or any further act on the part of any of the parties hereto.  The successor Trustee will notify each Rating
Agency of any such merger, conversion or consolidation.  In case any of the Indenture Issued Notes
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Indenture Issued Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Indenture Issued Notes.


 


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6.13.                     CO-TRUSTEES


 


At any time or times, for the purpose of meeting the
legal requirements of any jurisdiction in which any part of the Collateral may
at the time be located, the Trustee shall have power to appoint one or more
Persons to act as Co-trustee, jointly with the Trustee of all or any part of
the Collateral, with the power to file such proofs of claim and take such other
actions pursuant to Section 5.6 and to make such claims and enforce such
rights of action on behalf of the Holders of the Rated Notes subject to the
other provisions of this Section 6.13.


 


The Co-Issuers shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint a Co-trustee.  If
the Co-Issuers do not join in such appointment within 15 days after the receipt
by them of a request to do so, the Trustee shall have power to make such
appointment.


 


Should any written instrument from the Co-Issuers be
required by any Co-trustee so appointed for more fully confirming to such
Co-trustee such property, title, right or power, any and all such instruments
shall, on request, be executed, acknowledged and delivered by the
Co-Issuers.  The Co-Issuers agree to pay
(subject to the Priority of Payments) for any reasonable fees and expenses in
connection with such appointment.


 


Every Co-trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms:


 


(a)                                 the
Indenture Issued Notes shall be authenticated and delivered and all rights,
powers, duties and obligations hereunder in respect of the custody of
securities, funds and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely by
the Trustee;


 


(b)                                the
rights, powers, duties and obligations hereby conferred or imposed upon the
Trustee in respect of any property covered by the appointment of a Co-trustee
shall be conferred or imposed upon and exercised or performed by the Trustee or
by the Trustee and such Co-trustee jointly, as shall be provided in the
instrument appointing such Co-trustee, except to the extent that under any law
of any jurisdiction in which any particular act is to be performed, the 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 a
Co-trustee;


 


(c)                                 the
Trustee at any time, by an instrument in writing executed by it, may accept the
resignation of or remove any Co-trustee appointed under this Section 6.13.  A successor to any Co-trustee so resigned or
removed may be appointed in the manner provided in this Section 6.13;


 


(d)                                no
Co-trustee hereunder shall be personally liable by reason of any act or
omission of the Trustee or any other Co-trustee hereunder;


 


(e)                                 the
Trustee shall not be liable by reason of any act or omission of a Co-trustee;


 


(f)                                   any
Act of Rated Noteholders delivered to the Trustee shall be deemed to have been
delivered to each Co-trustee; and


 


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(g)                                each
Co-trustee hereunder shall at the time of such acceptance satisfy the
qualification required of a Trustee under Section 6.9 and the other
provisions of this Section 6.


 


6.14.                     CERTAIN DUTIES RELATED TO DELAYED
PAYMENT OF PROCEEDS; OTHER NOTICES


 


In the event that the Trustee shall not have received
a payment with respect to any Pledged Security within two Business Days after
its Due Date, the Trustee shall (i) notify the Issuer and Collateral
Manager in writing and (ii) promptly request the issuer of such Pledged
Security, the trustee under the related Underlying Instrument or paying agent
designated by either of them, as the case may be, to make such payment as soon
as practicable after such request but in no event later than three Business
Days after the date of such request.  In
the event that such payment is not made within such time period, the Trustee,
subject to the provisions of Section 6.1(c)(4), shall, subject to the
restrictions on the sale of Collateral Interests set forth in Section 12.1,
take such action as the Collateral Manager shall direct in writing.  Any such action shall be without prejudice to
any right to claim a Default under this Indenture.  The Trustee will promptly notify the Issuer
if the Collateral Manager has determined that (i) any Collateral Interest
has become an Impaired Interest, a Deferred Interest PIK Bond, a Credit Risk
Interest or a Written Down Interest or (ii) the Trustee has received an
Equity Interest in connection with any Collateral Interest.


 


6.15.                     REPRESENTATIONS AND WARRANTIES OF
THE BANK


 


(a)                                 Organization.  The
Bank has been duly organized and is validly existing as a national banking
association under the laws of the United States and has the power to conduct
its business and affairs as a trustee.


 


(b)                                Authorization; Binding Obligations.  The Bank has the power and
authority to perform the duties and obligations of Trustee, Note Registrar and
Note Transfer Agent or any other capacity to which it is appointed under this
Indenture.  The Bank has taken all
necessary action to authorize the execution, delivery and performance of this
Indenture, and all of the documents required to be executed by the Bank
pursuant hereto.  This Indenture has been
duly executed and delivered by the Bank. 
Upon execution and delivery by the Co-Issuers, this Indenture will
constitute the legal, valid and binding obligation of the Bank enforceable in
accordance with its terms.


 


(c)                                 Eligibility.  The Bank
is eligible under Section 6.9 to serve as Trustee hereunder.


 


(d)                                No Conflict.  Neither
the execution, delivery and performance of this Indenture, nor the consummation
of the transactions contemplated by this Indenture, (i) is prohibited by,
or requires the Bank to obtain any consent, authorization, approval or
registration under, any law, statute, rule, regulation, judgment, order, writ,
injunction or decree that is binding upon the Bank or any of its properties or
assets, or (ii) will violate any provision of, result in any default or
acceleration of any obligations under, result in the creation or imposition of
any lien pursuant to, or require any consent under, any agreement to which the
Bank is a party or by which it or any of its property is bound.


 


(e)                                 No Proceedings.  There
are no proceedings pending, or to the best knowledge of the Bank, threatened
against the Bank before any federal, state or other governmental agency,
authority, administrator or regulatory body, arbitrator, court or other
tribunal, foreign or domestic, that could have a material adverse effect on the
Collateral or any action taken or to be taken by the Bank under this Indenture.


 


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6.16.                     EXCHANGE OFFERS, PROPOSED
AMENDMENTS ETC.


 


The Collateral Manager may, on behalf of the Issuer,
instruct the Trustee pursuant to an Issuer Order to, and the Trustee shall,
take any of the following actions with respect to a Collateral Interest or
Equity Interest as to which an Offer has been made or as to which any consent,
waiver, vote or exercise has been requested: 
(i) exchange such instrument for other securities or a mixture of
securities and other consideration pursuant to such Offer (and in making a
determination whether or not to exchange any security, none of the restrictions
set forth in Section 12 shall be applicable); and (ii) give consent,
grant waiver, vote or exercise any or all other rights or remedies with respect
to any such Collateral Interest or Equity Interest.  In the event that the Trustee does not
receive instruction from the Collateral Manager, the Trustee shall have no
obligation to take action with respect to such exchange or such request for
consent, waiver, vote or exercise.  In
the event that the Trustee receives written notice of any proposed amendment,
consent or waiver under the Underlying Instruments of any Collateral Interests
(before or after any default), the Trustee shall promptly deliver copies of
such notice to the Issuer and the Collateral Manager.  The Collateral Manager may, on behalf of the
Issuer, instruct the Trustee pursuant to an Issuer Order to, and the Trustee
shall, with respect to a Collateral Interest as to which a consent or waiver
under the Underlying Instruments of such Collateral Interest (before or after
any default) has been proposed, give consent, grant waiver, vote or exercise
any or all other rights or remedies with respect to any such Collateral
Interest only in accordance with such Issuer Order.  In the absence of any instruction from the
Collateral Manager, the Trustee shall not engage in any vote with respect to
such Collateral Interest.


 


6.17.                     FIDUCIARY FOR RATED NOTEHOLDERS
ONLY; AGENT FOR OTHER SECURED PARTIES


 


With respect to the security interests created
hereunder, the pledge of any portion of the Collateral to the Trustee is to the
Trustee as representative of the Rated Noteholders and agent for other Secured
Parties.  In furtherance of the
foregoing, the possession by the Trustee of any portion of the Collateral and
the endorsement to or registration in the name of the Trustee of any portion of
the Collateral (including without limitation as entitlement holder of the
Collateral Account) are all undertaken by the Trustee in its capacity as
representative of the Rated Noteholders and as agent for the other Secured
Parties.  The Trustee shall not by reason
of this Indenture be deemed to be acting as fiduciary for the Initial Hedge
Counterparty or the Collateral Manager, provided that
the foregoing shall not limit any of the express obligations of the Trustee
under this Indenture.


 


6.18.                     WITHHOLDING


 


If any withholding tax is imposed on the Issuer’s
payment (or allocations of income) under the Rated Notes to any Rated
Noteholder, such tax shall reduce the amount otherwise distributable to such
Rated Noteholder.  The Trustee is hereby
authorized and directed to retain from amounts otherwise distributable to any
Rated Noteholder sufficient funds for the payment of any tax that is required
to be withheld or deducted by the Issuer (but such authorization shall not
prevent the Trustee from contesting any such tax in appropriate proceedings and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings).  The amount of any
withholding tax imposed with respect to any Rated Noteholder shall be treated
as Cash distributed to such Rated Noteholder at the time it is withheld by the
Trustee and remitted to the appropriate taxing authority.  If there is a possibility that withholding
tax is payable with respect to a distribution, the Trustee may in its sole
discretion withhold such amounts in accordance with this Section 6.18.  If any Rated Noteholder wishes to apply for a
refund of any such withholding tax, the Trustee shall reasonably cooperate with
such Rated Noteholder in making such claim so long as such Rated Noteholder
agrees to reimburse the Trustee for any out-of-pocket expenses incurred.  Nothing herein shall impose an obligation on
the part of the Trustee to determine the amount of any tax or withholding
obligation on the part of the Issuer or in respect of the Income Notes.


 


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ARTICLE VII


 


COVENANTS


 


7.1.      PAYMENT OF PRINCIPAL AND INTEREST


 


The Co-Issuers will duly and punctually pay all
principal (including the Class C Cumulative Periodic Interest Shortfall
Amount, the Class D Cumulative Periodic Interest Shortfall Amount and the Class E
Cumulative Periodic Interest Shortfall Amount), interest (including Defaulted
Interest and interest thereon, if any) in accordance with the terms of the
Rated Notes (other than the Class F Notes and the Class G Notes) and
this Indenture and amounts due under any Hedge Agreement in accordance with
this Indenture.  The Issuer will duly and
punctually pay all principal (including the Class F Cumulative Periodic
Interest Shortfall Amount and the Class G Cumulative Periodic Interest
Shortfall Amount), interest (including Defaulted Interest and interest thereon,
if any) in accordance with the terms of the Class F Notes and the Class G
Notes and this Indenture and amounts due under any Hedge Agreement in
accordance with this Indenture.  Amounts
properly withheld under the Code or other applicable law by any Person from a
payment to any Rated Noteholder of principal and/or interest shall be
considered as having been paid by the Co-Issuers (in the case of Rated Notes
other than the Class F Notes and the Class G Notes) or the Issuer (in
the case of the Class F Notes or the Class G Notes) to such Rated
Noteholder for all purposes of this Indenture.


 


The Trustee shall, unless prevented from doing so for
reasons beyond its reasonable control, give notice to each Rated Noteholder and
each Rating Agency of any such withholding requirement no later than ten days
prior to the date of the payment from which amounts are required to be
withheld; provided that despite the failure of
the Trustee to give such notice, amounts withheld pursuant to applicable tax
laws shall be considered as having been paid by the Co-Issuers or the Issuer as
provided above.


 


7.2.      MAINTENANCE OF OFFICE OR AGENCY


 


The Co-Issuers hereby appoint the Trustee as Note
Paying Agent for the payment of principal of and interest on the Rated
Notes.  The Co-Issuers hereby appoint
Wells Fargo Bank, National Association with an address at 9062 Old Annapolis
Road, Columbia, Maryland 21045, Attn: CDO Trust Services—N-Star REL CDO IV, as
the Co-Issuers’ agent where notices and demands to or upon the Co-Issuers in
respect of the Rated Notes or this Indenture (except service of any and all
process in any action or proceeding) may be served and where the Rated
Notes may be surrendered for registration of transfer or exchange.  The Issuer hereby appoints NCB Stockbroker
Limited, 3 George’s Dock, Dublin 1, Ireland, as offshore Note Paying Agent and
as the Issuer’s agent where notices and demands to or upon the Issuer in
respect of any Rated Notes or Income Notes listed on the Irish Stock Exchange
may be served and where such Rated Notes or Income Notes may be surrendered for
registration of transfer or exchange.


 


The Co-Issuers may at any time and from time to time,
terminate the appointment of any such agent or appoint any additional agents
for any or all of such purposes; provided that (A) the
Co-Issuers will maintain in the Borough of Manhattan, The City of New York, an
office or agency where notices and demands to or upon the Co-Issuers in respect
of the Rated Notes and this Indenture may be served, (B) no Note Paying
Agent shall be appointed in a jurisdiction which subjects payments on the Rated
Notes to withholding tax and (C) the Co-Issuers may not terminate the
appointment of any Note Paying Agent without the consent of each Income
Noteholder.  The Co-Issuers shall give
prompt written notice to the Trustee and each Rating Agency and the Rated
Noteholders of the appointment or termination of any such agent and of the
location and any change in the location of any such office or agency.


 


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If at any time the Co-Issuers shall fail to maintain
any such required office or agency in the Borough of Manhattan, The City of New
York or shall fail to furnish the Trustee with the address thereof,
presentations and surrenders may be made at and notices and demands may be
served on the Co-Issuers and Rated Notes may be presented and surrendered for
payment to the Note Paying Agent at its office in Minnesota (and the Co-Issuers
hereby appoint the same as their agent to receive such respective
presentations, surrenders, notices and demands).


 


For so long as any Class of Rated Notes or Income
Notes is listed on the Irish Stock Exchange and such exchange shall so require,
the Co-Issuers shall maintain a listing agent, a paying agent and an agent
where notices and demands to or upon the Co-Issuers in respect of any Rated
Notes or Income Notes listed on the Irish Stock Exchange may be served and
where such Rated Notes or Income Notes may be surrendered for registration of
transfer or exchange.


 


7.3.      FUNDS FOR RATED NOTE PAYMENTS TO
BE HELD IN TRUST


 


All payments of amounts due and payable with respect
to any Rated Notes that are to be made from amounts withdrawn from the Payment
Account shall be made on behalf of the Co-Issuers or the Issuer, as applicable,
by the Trustee or a Note Paying Agent with respect to payments on the Rated
Notes.


 


When the Co-Issuers shall have a Note Paying Agent
that is not also the Note Registrar, they shall direct the Note Registrar to
furnish, no later than the fifth calendar day after each Record Date a list, if
necessary, in such form as such Note Paying Agent may reasonably request, of
the names and addresses of the Holders and of the certificate numbers of
individual Rated Notes held by each such Holder.


 


The initial Note Paying Agent shall be as set forth in
Section 7.2.  Any additional or
successor Paying Agents shall be appointed by Issuer Order with written notice
thereof to the Trustee and the Rating Agencies; provided that
so long as any Class of Rated Notes is rated by the Rating Agencies and
with respect to any additional or successor Note Paying Agent for the Rated
Notes, (a) the Note Paying Agent for the Rated Notes has a rating of not
less than “AA-” and not less than “A-1+” by S&P or (b) a Rating Agency
Confirmation from S&P shall have been obtained with respect to the
appointment of such Note Paying Agent. 
In the event that (i) the Co-Issuers have actual knowledge that
such successor Note Paying Agent ceases to have a rating of at least “AA-” and
of “A-1+” by S&P or (ii) a Rating Agency Confirmation from S&P
shall not have been obtained with respect to the appointment of such Note Paying
Agent, the Co-Issuers shall promptly remove such Note Paying Agent and appoint
a successor Note Paying Agent.  The
Co-Issuers shall not appoint any Note Paying Agent (other than an initial Note
Paying Agent) that is not, at the time of such appointment, a depository
institution or trust company subject to supervision and examination by federal
and/or state and/or national banking authorities.  The Co-Issuers shall cause each Note Paying
Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Note Paying Agent shall agree with the Trustee (and if
the Trustee acts as Note Paying Agent, it hereby so agrees), subject to the
provisions of this Section 7.3, that such Note Paying Agent will:


 


(a)                                 allocate
all sums received for payment to the Holders of Rated Notes for which it acts
as Note Paying Agent on each Payment Date and Redemption Date among such
Holders in the proportion specified in the instructions set forth in the
applicable Note Valuation Report or Redemption Date Statement or as otherwise
provided herein, in each case to the extent permitted by applicable law;


 


(b)                                hold
all amounts held by it for the payment of amounts due with respect to the Rated
Notes in trust for the benefit of the Persons entitled thereto until such sums
shall be paid


 


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to such Persons or otherwise disposed of as herein
provided and pay such sums to such Persons as herein provided;


 


(c)                                 if
such Note Paying Agent is not the Trustee, immediately resign as a Note Paying
Agent and forthwith pay to the Trustee all amounts held by it in trust for the
payment of Rated Notes if at any time it ceases to meet the standards set forth
above required to be met by a Note Paying Agent at the time of its appointment;


 


(d)                                if
such Note Paying Agent is not the Trustee, immediately give the Trustee notice
of any Default by the Issuer or the Co-Issuer (or any other obligor upon the
Rated Notes) in the making of any payment required to be made; and


 


(e)                                 if
such Note Paying Agent is not the Trustee at any time during the continuance of
any such Default, upon the written request of the Trustee, forthwith pay to the
Trustee all amounts so held in trust by such Note Paying Agent.


 


If the Co-Issuers shall have appointed a Note Paying
Agent other than the Trustee, the Trustee shall deposit on or prior to the
Business Day next preceding each Payment Date or Redemption Date, as the case
may be, with such Note Paying Agent, if necessary, an aggregate amount
sufficient to pay the amounts then becoming due (to the extent funds are then
available for such purpose in the Collection Account, as the case may be), such
amount to be held in trust for the benefit of the Persons entitled
thereto.  Any funds deposited with a Note
Paying Agent (other than the Trustee) in excess of an amount sufficient to
pay the amounts then becoming due on the Rated Notes with respect to which such
deposit was made shall be paid over by such Note Paying Agent to the Trustee
for application in accordance with Section 11.


 


The Co-Issuers may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, direct any Note Paying Agent to pay, to the Trustee all amounts held
in trust by such Note Paying Agent, such amounts to be held by the Trustee upon
the same trusts as those upon which such amounts were held by such Note Paying
Agent; and, upon such payment by any Note Paying Agent to the Trustee, such
Note Paying Agent shall be released from all further liability with respect to
such amounts.


 


Except as otherwise required by applicable law, any
funds deposited with the Trustee or any Note Paying Agent in trust for the
payment of the principal of or interest on any Rated Note and remaining
unclaimed for two years after the same has become due and payable shall be paid
to the Co-Issuers on Issuer Request; and the Holder of such Rated Note shall
thereafter, as an unsecured general creditor, look only to the Co-Issuers (in
the case of the Rated Notes other than the Class F Notes and the Class G
Notes) or the Issuer (in the case of the Class F Notes or the Class G
Notes) for payment of such amounts and all liability of the Trustee or such
Note Paying Agent with respect to such trust funds (but only to the extent of
the amounts so paid to the Co-Issuers) shall thereupon cease.  The Trustee or such Note Paying Agent, before
being required to make any such release of payment, may, but shall not be
required to, adopt and employ, at the expense of the Co-Issuers, any reasonable
means of notification of such release of payment, including mailing notice of
such release to Holders whose Rated Notes have been called but have not been
surrendered for redemption or whose right to or interest in amounts due and
payable but not claimed is determinable from the records of any Note Paying
Agent, at the last address of record of each such Holder.


 


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7.4.      EXISTENCE OF CO-ISSUERS


 


The Issuer and the Co-Issuer shall maintain in full
force and effect their existence and rights as an exempted company incorporated
and registered under the laws of the Cayman Islands and as a corporation
incorporated under the laws of the State of Delaware, respectively, and shall
obtain and preserve their qualification to do business in each jurisdiction in
which such qualifications are or shall be necessary to protect the validity and
enforceability of this Indenture, the Rated Notes (in the case of the Issuer),
the Rated Notes other than the Class F Notes and the Class G Notes
(in the case of the Co-Issuer) or any of the Collateral.


 


The Issuer and the Co-Issuer shall ensure that all
corporate or other formalities regarding their respective existences (including
holding regular board of directors’ and shareholders’, or other similar,
meetings) or registrations are followed. 
Neither the Issuer nor the Co-Issuer shall take any action, or conduct
its affairs in a manner, that is likely to result in its separate existence
being ignored or in its assets and liabilities being substantively consolidated
with any other Person in a bankruptcy, reorganization or other insolvency
proceeding.  At least one director of the
Issuer and of the Co-Issuer shall be Independent of other parties to the
Transaction Documents.  Without limiting
the foregoing, (a) the Issuer shall not have any subsidiaries (other than
the Co-Issuer and any Tax Subsidiary), (b) the Co-Issuer shall not have
any subsidiaries and (c) the Issuer and the Co-Issuer shall not (i) have
any employees, (ii) engage in any transaction with any shareholder that
would constitute a conflict of interest or (iii) pay dividends, provided that the foregoing shall not prohibit the Issuer
from entering into the transactions contemplated by the Corporate Services Agreement
with the Administrator.


 


7.5.      PROTECTION OF COLLATERAL


 


(a)                                 The
Issuer shall from time to time, execute and deliver all such supplements and
amendments hereto and all such Financing Statements, continuation statements,
instruments of further assurance and other instruments, and shall take such
other action as may be necessary or advisable or desirable to secure the rights
and remedies of the Secured Parties hereunder and to:


 


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


 


(2)                                 maintain,
preserve and perfect the lien (and the first priority nature thereof) of
this Indenture or to carry out more effectively the purposes hereof;


 


(3)                                 perfect,
publish notice of or protect the validity of any Grant made or to be made by
this Indenture (including any and all actions necessary or desirable as a
result of changes in law or regulations);


 


(4)                                 enforce
any of the Pledged Securities or other instruments or property included in the
Collateral;


 


(5)                                 preserve
and defend title to the Collateral and the rights therein of the Trustee and
the Holders of the Rated Notes against the claims of all Persons and parties;
or


 


(6)                                 pay
or cause to be paid any and all taxes levied or assessed upon all or any part
of the Collateral.


 


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The Issuer hereby designates the Trustee its agent and
attorney-in-fact to execute any Financing Statement, continuation statement or
other instrument delivered to it pursuant to this Section 7.5, and the
Trustee, as agent of the Issuer, agrees to file such continuation statements as
are necessary to maintain perfection of the Collateral perfected by the filing
of Financing Statements, provided that the Issuer retains ultimate
responsibility to maintain the perfection of the Collateral perfected by the
filing of Financing Statements and any failure of the Trustee to file
continuation statements pursuant to this undertaking shall not result in any
liability of the Trustee and the Trustee shall be entitled to indemnification
pursuant to Section 6.8(a) with respect to any claim, loss, liability
or expense incurred by the Trustee with respect to the filing of such
continuation statements.  The Trustee
agrees that it will from time to time, at the direction of any Secured Party,
execute and cause to be filed Financing Statements and continuation
statements.  The Issuer shall otherwise
cause the perfection and priority of the security interest in the Collateral
and the maintenance of such security interest at all times.  Notwithstanding anything to the contrary
herein, the right of a Secured Party to provide direction to the Trustee shall
not impose upon the Trustee, as Secured Party, any obligation to provide any
such direction.  The Issuer agrees that a
carbon, photographic, photostatic or other reproduction of this Indenture or of
a Financing Statement is sufficient as an Indenture or a Financing Statement as
the case may be.


 


(b)                                The
Trustee shall not (i) except in accordance with Section 10.12(a) or
(b), as applicable, remove any portion of the Collateral that consists of Cash
or is evidenced by an Instrument, certificate or other writing (A) from
the jurisdiction in which it was held at the date the most recent Opinion of
Counsel was delivered pursuant to Section 7.6 (or from the jurisdiction in
which it was held as described in the Opinion of Counsel delivered at the
Closing Date pursuant to Section 3.1(c), if no Opinion of Counsel has yet
been delivered pursuant to Section 7.6) or (B) from the possession of
the Person who held it on such date or (ii) cause or permit ownership or
the pledge of any portion of the Collateral that consists of book-entry
securities to be recorded on the books of a Person (A) located in a
different jurisdiction from the jurisdiction in which such ownership or pledge
was recorded at such date or (B) other than the Person on whose books such
ownership or pledge was recorded at such date, unless the Trustee shall have
first received an Opinion of Counsel to the effect that the lien and security
interest created by this Indenture with respect to such property will continue
to be maintained after giving effect to such action or actions.


 


(c)                                 The
Issuer shall pay or cause to be paid taxes, if any, levied on account of the
beneficial ownership by the Issuer of any Pledged Securities that secure the
Rated Notes; provided that the Issuer shall not
be required to pay or discharge or cause to be paid or discharged any such tax
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which disputed amounts or adequate reserves
have been made or the failure of which to pay or discharge could not reasonably
be expected to have a material adverse effect upon the ability of the Issuer to
timely and fully perform any of its payment or other material obligations under
this Indenture or upon the interests of the Rated Noteholders in the
Collateral.


 


(d)                                The
Issuer shall enforce all of its material rights and remedies under the
Transaction Documents to which it is a party.


 


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(e)                                 Without
at least thirty (30) days’ prior written notice to the Trustee, the Issuer
shall not change its name, or the name under which it does business, from the
name shown on the signature pages hereto.


 


7.6.      OPINIONS AS TO COLLATERAL


 


On or before May 31 in each calendar year,
commencing in 2006, the Issuer shall furnish to the Trustee and each Rating
Agency an Opinion of Counsel (which shall include assumptions and
qualifications substantially similar to those set forth in Exhibit E-1)
stating that, in the opinion of such counsel, as of the date of such opinion,
the lien and security interest created by this Indenture with respect to the
Collateral remains a valid and perfected first priority lien and describing the
manner in which such security interest shall remain perfected.


 


7.7.      PERFORMANCE OF OBLIGATIONS


 


(a)                                 The
Trustee shall notify the Issuer, the Initial Hedge Counterparty and each Rated
Noteholder of any request for an amendment, waiver or supplement to any
Underlying Instrument included in the Collateral or of any other notice of a
vote in respect of any Collateral Interest included in the Collateral.  The Issuer shall not enter into any such
amendment, waiver or supplement; provided that,
notwithstanding anything in this Section 7.7(a) to the contrary, the
Issuer may enter into any amendment or waiver of or supplement to any such
Underlying Instrument if such amendment, supplement or waiver:


 


(1)                                 is
required by the provisions of any Underlying Instrument or by applicable law
(other than pursuant to an Underlying Instrument);


 


(2)                                 is
necessary to cure any ambiguity, inconsistency or formal defect or omission in
such Underlying Instrument; or


 


(3)                                 (x) is
deemed necessary by the Issuer or the Collateral Manager and does not
materially and adversely affect the Secured Parties or (y) is effected
pursuant to Section 6.16.


 


The Issuer shall be entitled to rely on an Opinion of
Counsel as to material adverse effect and as to whether the entry into an
amendment, supplement or waiver is permitted pursuant to this Indenture.


 


(b)                                The
Issuer or the Co-Issuer may, with the prior written consent of the Holders of a
Majority of the then Aggregate Outstanding Amount of the Notes of each Class of
Rated Notes and the Holders of not less than 662/3%
of the aggregate principal amount of the Outstanding Income Notes and the
Initial Hedge Counterparty, contract with other Persons, including the
Collateral Administrator, the Collateral Manager and the Bank, for the
performance of actions and obligations to be performed by the Issuer or the
Co-Issuer hereunder by such Persons. 
Notwithstanding any such arrangement, the Issuer or the Co-Issuer, as
the case may be, shall remain liable for all such actions and obligations.  In the event of such contract, the
performance of such actions and obligations by such Persons shall be deemed to
be performance of such actions and obligations by the Issuer or the Co-Issuer,
as the case may be; and the Issuer or Co-Issuer, as the case may be, will punctually
perform, and use its best efforts to cause such other Person to perform, all of
their obligations and agreements contained in related agreement.


 


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(c)                                 The
Co-Issuers shall treat all acquisitions of Collateral Interests as a “purchase”
for tax, accounting and reporting purposes.


 


(d)                                Each
of the Co-Issuers shall file, or cause to be filed, any tax returns, including
information tax returns, required by any governmental authority.


 


(e)                                 In
the event that (i) the ownership of a Collateral Interest or property
acquired in respect of a Collateral Interest would result in the Issuer being
or becoming subject to U.S. tax on a net income basis or being or becoming
subject to the U.S. branch profits tax (in either case, such Collateral
Interest becoming a “Taxed Collateral Interest” and such property becoming a “Taxed
Property”), and (ii) the Issuer does not sell or otherwise dispose of all
or a portion of such Taxed Collateral Interest or Taxed Property in accordance
with the provisions of Section 12.1(a)(3), the Collateral Manager on
behalf of the Issuer shall, prior to such Collateral Interest becoming a Taxed
Collateral Interest or such property becoming a Taxed Property, (a) set up
a special purpose subsidiary meeting S&P’s then current published criteria
for bankruptcy-remote special purpose entities (a “Tax
Subsidiary”) to receive and hold any such Taxed Collateral Interest or Taxed
Property or transfer such Taxed Collateral Interest or Taxed Property to the
Tax Subsidiary or (b) contribute such taxed Collateral Interest or Taxed
Property to a REMIC or other pass-through entity, unless the Issuer has
received an opinion of nationally recognized counsel that the Issuer can hold
such Taxed Collateral Interest directly without causing the Issuer to be
treated as engaged in a trade or business in the United States for United
States federal income tax purposes.  The
Issuer shall cause the purposes and permitted activities of any such Tax
Subsidiary to be restricted solely to the acquisition, holding and disposition
of such Taxed Collateral Interest and shall require such subsidiary to
distribute 100% of any payments or distributions received with respect to such
taxed Collateral Interest, together with the proceeds of any sale of such Taxed
Collateral Interest, net of any tax liabilities, to the Issuer.


 


7.8.      NEGATIVE COVENANTS


 


(a)                                 The
Issuer will not and, with respect to Section 7.8(a)(3), (4), (5) and
(9), the Co-Issuer will not:


 


(1)                                 intentionally
operate so as to be subject to U.S. federal income taxes on its net income;


 


(2)                                 sell,
assign, participate, transfer, exchange or otherwise dispose of, or pledge,
mortgage, hypothecate or otherwise encumber (or permit such to occur or suffer
such to exist), any part of the Collateral, except as expressly permitted by
this Indenture;


 


(3)                                 claim
any credit on, make any deduction from, or dispute the enforceability of, the
payment of the principal or interest (or any other amount) payable in respect
of the Rated Notes (other than amounts required to be paid, deducted or
withheld in accordance with any applicable law or regulation of any
governmental authority) or assert any claim against any present or future Rated
Noteholder by reason of the payment of any taxes levied or assessed upon any
part of the Collateral;


 


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(4)                                  (A) incur
or assume or guarantee any indebtedness, other than the Rated Notes and this
Indenture and the transactions contemplated hereby; (B) issue any
additional class of securities other than the Income Notes; or (C) issue
any additional shares of stock;


 


(5)                                  (A) take
any action that would impair the validity or effectiveness of this Indenture or
any Grant hereunder or the lien of this Indenture, amend hypothecate,
subordinate, terminate, discharge or release any Person from any covenants or
obligations with respect to this Indenture or the Rated Notes, except as may be
permitted hereby, (B) create or extend any lien, charge, adverse claim,
security interest, mortgage or other encumbrance (other than the lien of this
Indenture) on or to the Collateral or any part thereof, any interest
therein or the proceeds thereof, or (C) take any action that would cause
the lien of this Indenture not to constitute a valid first priority security
interest in the Collateral;


 


(6)                                  use
any of the proceeds of the Rated Notes issued hereunder (A) to extend “purpose
credit” within the meaning given to such term in Regulation U or (B) to
purchase or otherwise acquire any Margin Stock;


 


(7)                                  permit
the aggregate book value of all Margin Stock held by the Issuer on any date to
exceed the net worth of the Issuer on such date (excluding any unrealized gains
and losses) on such date;


 


(8)                                  dissolve
or liquidate in whole or in part, except as permitted hereunder; or


 


(9)                                  except
for any agreements involving the purchase and sale of Collateral Interests
having customary purchase or sale terms and documents with customary loan
trading documentation (but not excepting any Hedge Agreement), enter into any
agreements unless such agreements contain “non-petition” and “limited recourse”
provisions with respect to the Issuer.


 


(b)                                 Except
as permitted by this Indenture, the Issuer will not do business under any other
name other than the name set forth in the Articles and neither the Issuer nor
the Trustee shall acquire any Collateral after the Closing Date, sell,
transfer, exchange or otherwise dispose of Collateral, or enter into or engage
in any business with respect to any part of the Collateral.


 


(c)                                  The
Co-Issuer will not invest any of its assets in “securities” (as such term is
defined in the Investment Company Act), and will keep all of its assets in
Cash.


 


7.9.      STATEMENT AS TO COMPLIANCE


 


On or before May 31 in each calendar year
commencing in 2006, or immediately if there has been a Default in the
fulfillment of an obligation under this Indenture, the Issuer shall deliver to
the Trustee, the PAA Issued Note Paying Agent, each Rated Noteholder making a
written request therefor, the Irish Paying Agent, the Initial Hedge
Counterparty, the Collateral Manager and each Rating Agency a certificate of
the Issuer stating, as to each signer thereof, that:


 


(a)                                  the
Officer executing such certificate has conducted a review of the activities of
the Issuer and of the Issuer’s performance under this Indenture during the
12-month period ending on December 31 of such year (or from the Closing
Date until December 31, 2005, 


 


106

















 


in the case of the first such certificate) based
on reports and other information delivered to such Officer by the Trustee, the Collateral
Manager and the Collateral Administrator and a review of the Accountant’s
Reports prepared pursuant to Section 10.11 and such other materials as
such Officer deems appropriate; and


 


(b)                                 to
the best of knowledge of the Issuer, based on such review, the Issuer has
fulfilled all of its material obligations under this Indenture throughout the
period, or, if there has been a Default in the fulfillment of any such
obligation, specifying each such Default known to such Officer and the nature
and status thereof, including actions undertaken to remedy the same.


 


7.10.                        CO-ISSUERS MAY CONSOLIDATE,
ETC., ONLY ON CERTAIN TERMS


 


(a)                                  The
Issuer shall not consolidate or merge with or into any other Person or transfer
or convey all or substantially all of its assets to any Person, unless
permitted by Cayman Islands law and unless:


 


(1)                                  the
Issuer shall be the surviving entity, or the Person (if other than the Issuer)
formed by such consolidation or into which the Issuer is merged or to which all
or substantially all of the assets of the Issuer are transferred or conveyed
shall be an exempted limited liability company organized and existing under the
laws of the Cayman Islands or such other jurisdiction outside the United States
as may be approved by a Majority of each Class and the Initial Hedge
Counterparty, and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, the Initial Hedge Counterparty and each
Rated Noteholder, the due and punctual payment of the principal of and interest
on all Rated Notes and the performance of every covenant of this Indenture and
any Hedge Agreement on the part of the Issuer to be performed or observed, all
as provided herein;


 


(2)                                 each
Rating Agency and the Initial Hedge Counterparty shall have received written
notification from the Issuer of such consolidation, merger, transfer or
conveyance and the identity of the surviving entity and a Rating Agency
Confirmation shall have been obtained with respect to the consummation of such
transaction;


 


(3)                                 if
the Issuer is not the surviving entity, the Person formed by such consolidation
or into which the Issuer is merged or to which all or substantially all of the
assets of the Issuer are transferred or conveyed shall have agreed with the
Trustee (A) to observe the same legal requirements for the recognition of
such formed or surviving entity as a legal entity separate and apart from any
of its Affiliates as are applicable to the Issuer with respect to its
Affiliates and (B) not to consolidate or merge with or into any other
Person or transfer or convey the Collateral or all or substantially all of its
assets to any other Person except in accordance with the provisions of this Section 7.10;


 


(4)                                 if
the Issuer is not the surviving entity, the Person formed by such consolidation
or into which the Issuer is merged or to which all or substantially all of the
assets of the Issuer are transferred or conveyed shall have delivered to the
Trustee, the Initial Hedge Counterparty and each Rating Agency an Officer’s
certificate and an Opinion of Counsel each stating that such Person shall be
duly organized, 


 


107

















 


validly existing and (if applicable) in good
standing in the jurisdiction in which such Person is organized; that such
Person has sufficient power and authority to assume the obligations set forth
in Section 7.10(a)(1) above and to execute and deliver an indenture
supplemental hereto for the purpose of assuming such obligations; that such
Person has duly authorized the execution, delivery and performance of an
indenture supplemental hereto for the purpose of assuming such obligations and
that such supplemental indenture is a valid, legal and binding obligation of
such Person, enforceable in accordance with its terms, subject only to
bankruptcy, reorganization, insolvency, moratorium and other laws affecting the
enforcement of creditors’ rights generally and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); that, immediately following the event which causes such
Person to become the successor to the Issuer, (A) such Person has good and
marketable title, free and clear of any lien, security interest or charge,
other than the lien and security interest of this Indenture, to the Collateral;
(B) the Trustee continues to have a valid perfected first priority
security interest in the Collateral securing all of the Rated Notes; (C) such Person has received an Opinion of
Counsel to the effect that (i) (x) such Person has been organized in
conformity with the requirements for qualification as a real estate investment
trust under the Code, and such Person’s actual method of operation has (for the
time period specified in such Opinion of Counsel) enabled, and its proposed
method of operation will enable, such Person to satisfy the requirements for
qualification and taxation as a real estate investment trust under the Code or (y) such
Person will not be subject to net income tax or be treated as engaged in a
trade or business within the United States for U.S. federal income tax purposes
and (ii) such other matters as the Trustee, the Initial Hedge
Counterparty or any Rated Noteholder
may reasonably require;


 


(5)                                  immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing;


 


(6)                                  the
Issuer shall have delivered to the Trustee, the Initial Hedge Counterparty and
each Rated Noteholder an Officer’s certificate and an Opinion of Counsel each
stating that such consolidation, merger, transfer or conveyance and such
supplemental indenture comply with this Section 7, that all conditions
precedent in this Section 7 provided for relating to such transaction have
been complied with and that no adverse tax consequences will result therefrom
to any Rated Noteholder or the Initial Hedge Counterparty; and


 


(7)                                  the
Issuer shall have delivered to the Trustee an Opinion of Counsel stating that
after giving effect to such transaction, neither of the Co-Issuers will be
required to register as an investment company under the Investment Company Act.


 


(b)                                 The
Co-Issuer shall not consolidate or merge with or into any other Person or
transfer or convey all or substantially all of its assets to any Person,
unless:


 


(1)                                  the
Co-Issuer shall be the surviving corporation, or the Person (if other than the
Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged
or to which all or substantially all of the assets of the Co-Issuer are
transferred or conveyed shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, the due and punctual payment of
the principal of 


 


108

















 


and interest on all Rated Notes and the performance of
every covenant of this Indenture on the part of the Co-Issuer to be performed
or observed, all as provided herein;


 


(2)                                  each
Rating Agency shall have received written notification from the Co-Issuer of
such consolidation, merger, transfer or conveyance and the identity of the surviving
entity and a Rating Agency Confirmation shall have been obtained with respect
to the consummation of such transaction;


 


(3)                                  if
the Co-Issuer is not the surviving corporation, the Person formed by such
consolidation or into which the Co-Issuer is merged or to which all or
substantially all of the assets of the Co-Issuer are transferred or conveyed
shall have agreed with the Trustee (A) to observe the same legal
requirements for the recognition of such formed or surviving corporation as a
legal entity separate and apart from any of its Affiliates as are applicable to
the Co-Issuer with respect to its Affiliates and (B) not to consolidate or
merge with or into any other Person or transfer or convey all or substantially
all of its assets to any other Person except in accordance with the provisions
of this Section 7.10;


 


(4)                                  if
the Co-Issuer is not the surviving corporation, the Person formed by such
consolidation or into which the Co-Issuer is merged or to which all or
substantially all of the assets of the Co-Issuer are transferred or conveyed
shall have delivered to the Trustee and each Rating Agency an Officer’s
certificate and an Opinion of Counsel each stating that such Person shall be
duly organized, validly existing and (if applicable) in good standing in
the jurisdiction in which such Person is organized; that such Person has
sufficient power and authority to assume the obligations set forth in Section 7.10(b)(1) above
and to execute and deliver an indenture supplemental hereto for the purpose of
assuming such obligations; that such Person has duly authorized the execution,
delivery and performance of an indenture supplemental hereto for the purpose of
assuming such obligations and that such supplemental indenture is a valid,
legal and binding obligation of such Person, enforceable in accordance with its
terms, subject only to bankruptcy, reorganization, insolvency, moratorium and
other laws affecting the enforcement of creditors’ rights generally and to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and such other matters as the
Trustee or any Rated Noteholder may reasonably require;


 


(5)                                  immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing;


 


(6)                                  the
Co-Issuer shall have delivered to the Trustee and each Rated Noteholder an
Officer’s certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental indenture
comply with this Section 7 and that all conditions precedent in this Section 7
provided for relating to such transaction have been complied with and that no
adverse tax consequences will result therefrom to any Rated Noteholder;


 


(7)                                  after
giving effect to such transaction, neither of the Co-Issuers will be required
to register as an investment company under the Investment Company Act; and


 


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(8)                                  after
giving effect to such transaction, the outstanding stock of the Co-Issuer will
not be beneficially owned by any Person other than the Issuer.


 


7.11.                        SUCCESSOR SUBSTITUTED


 


Upon any consolidation or merger, or transfer or
conveyance of all or substantially all of the assets of the Issuer or the
Co-Issuer, in accordance with Section 7.10, the Person formed by or
surviving such consolidation or merger (if other than the Issuer or the
Co-Issuer), or, the Person to which such transfer or conveyance is made, shall
succeed to, and be substituted for, and may exercise every right and power of,
and shall be bound by each obligation or covenant of, the Issuer or the
Co-Issuer, as the case may be, under this Indenture with the same effect as if
such Person had been named as the Issuer or the Co-Issuer, as the case may be,
herein.  In the event of any such
consolidation, merger, transfer or conveyance, the Person named as the “Issuer”
or the “Co-Issuer” in the first paragraph of this Indenture or any successor
which shall theretofore have become such in the manner prescribed in this Section 7
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 the Rated Notes and from its obligations under this Indenture.


 


7.12.                        NO OTHER BUSINESS


 


The Issuer shall not engage in any business or
activity other than (i) issuing and selling the Indenture Issued Notes
pursuant to this Indenture, (ii) issuing and selling the PAA Issued Notes
in accordance with the Paying Agency Agreement (iii) issuing the Ordinary
Shares pursuant to the Issuer Charter, (iv) acquiring, pledging, holding
and disposing of, solely for its own account, Collateral Interests, Eligible
Investments and other Collateral described in clauses (a) to (e) of
the granting clauses hereof, (v) holding the capital stock of the
Co-Issuer and (vi) such other activities that are incidental thereto and
connected therewith.  The Co-Issuer shall
not engage in any business or activity other than issuing and selling the
Indenture Issued Notes (other than the Class F Notes) pursuant to this
Indenture and such other activities incidental thereto or connected
therewith.  The Issuer shall not hold
itself out as a derivatives dealer willing to enter into either side of, or to
offer to enter into, assume, offset, assign or otherwise terminate positions in
(i) interest rate, currency, equity or commodity swaps or caps or (ii) derivative
financial instruments (including options, forward contracts, short positions
and similar instruments) in any commodity, currency, share of stock,
partnership or trust, note, bond, debenture or other evidence of indebtedness,
swap or cap.  The foregoing shall not
limit the ability of the Issuer to enter into any Hedge Agreements.  Furthermore, the Issuer shall not hold itself
out, whether through advertising or otherwise, as a bank, insurance company or
finance company, or as originating loans, lending funds, making a market in
loans or other assets or selling loans or other assets to customers.  The Issuer will not amend the Issuer Charter
and the Co-Issuer will not amend its Certificate of Incorporation or By-Laws,
if such amendment would result in the rating (including any private or
confidential rating) of any Class of Rated Notes being reduced or
withdrawn.  At any time at which the
Issuer is not a Qualified REIT Subsidiary, the Issuer shall not engage in any
business or activity or hold any asset that would cause the Issuer to be
engaged in a U.S. trade or business for U.S. federal income tax purposes,
except as the result of ownership of Equity Interests or securities received in
an Offer in accordance with the provisions of this Indenture.


 


7.13.                        CHANGE OR WITHDRAWAL OF RATING


 


The Issuer shall promptly notify the Trustee in
writing and upon receipt of such notice the Trustee shall promptly notify the
Rated Noteholders and the Initial Hedge Counterparty if at any time the rating
of any Class of Rated Notes has been, or is known will be, changed or
withdrawn.


 


 


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7.14.                        REPORTING


 


At any time when the Co-Issuers are not subject to Section 13
or 15(d) of the Exchange Act and are not exempt from reporting pursuant to
Rule 12g3-2(b) under the Exchange Act, upon the request of a Holder
or Beneficial Owner of a Rated Note or Income Note, the Co-Issuers shall
promptly furnish or cause to be furnished Rule 144A Information to such
Holder or Beneficial Owner, to a prospective purchaser of such Rated Note or
Income Note designated by such Holder or Beneficial Owner or to the Trustee for
delivery to such Holder or Beneficial Owner or a prospective purchaser
designated by such Holder or Beneficial Owner, as the case may be, in order to
permit compliance by such Holder or Beneficial Owner with Rule 144A under
the Securities Act in connection with the resale of such Rated Note or Income
Note by such Holder or Beneficial Owner.


 


7.15.                        RATED NOTE CALCULATION AGENT


 


(a)                                  The
Issuer hereby agrees that for so long as any of the Rated Notes remain
Outstanding the Issuer will at all times cause there to be an agent appointed
to calculate LIBOR in respect of each Interest Period in accordance with the
terms of Schedule B (the Rated Note Calculation
Agent), which agent shall be a financial institution, subject to
supervision or examination by federal or state authority, having a rating of at
least “BBB+” by S&P and having an office within the United States.  Whenever the Rated Note Calculation Agent is
required to act or exercise judgment, it will do so in good faith and in a
commercially reasonable manner.  The
Issuer has initially appointed the Trustee as Rated Note Calculation Agent for
purposes of determining LIBOR for each Interest Period.  If the Rated Note Calculation Agent is unable
or unwilling to act as such or is removed by the Issuer, the Issuer (after
consultation with the Collateral Manager) will propose a leading bank which is
engaged in transactions in Dollar deposits in the international Eurodollar
market and which does not control or is not controlled by or under common
control with the Co-Issuers or any of their Affiliates as a replacement Rated
Note Calculation Agent for approval by Holders of not less than 662/3%
of the aggregate principal amount of the Outstanding Income Notes.  The Rated Note Calculation Agent may not
resign its duties without a successor having been duly appointed.


 


(b)                                 As
soon as possible after 11:00 a.m. (London time) on each LIBOR
Calculation Date, but in no event later than 11:00 a.m. (New York
time) on the London Banking Day immediately following each LIBOR Calculation
Date, the Rated Note Calculation Agent will calculate LIBOR for the next
Interest Period and the Periodic Interest payable for such Interest Period in
respect of the Outstanding Rated Notes, rounded to the nearest cent, with half
a cent being rounded upward, on the related Payment Date to be given to the
Co-Issuers, the Trustee, the Collateral Manager, the Depositary, Euroclear,
Clearstream, the Note Paying Agent and the Irish Paying Agent.  The Rated Note Calculation Agent will also
specify to the Co-Issuers and the Collateral Manager the quotations upon which
the Applicable Periodic Interest Rate for each Class of Rated Notes is
based, and in any event the Rated Note Calculation Agent must notify the
Co-Issuers and the Collateral Manager before 5:00 p.m. (New York
time) on each applicable LIBOR Calculation Date if it has not determined
and is not in the process of determining LIBOR with respect to the Rated Notes
and the Periodic Interest with respect to each Class of Rated Notes,
together with its reasons for the delay. 
The Irish Paying Agent also will cause the Applicable Periodic Interest
Rate for each Interest Period for each Class of Rated Notes listed on the
Irish Stock Exchange, the amount of interest payable in respect of each Class of
Rated Notes listed on the Irish Stock Exchange and 


 


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each Payment Date to be delivered to the Company
Announcements Office of the Irish Stock Exchange as soon as possible after the
Irish Paying Agent has received notice from the Rated Note Calculation Agent of
such Applicable Periodic Interest Rates and amounts.


 


7.16.                        LISTING


 


The Issuer will use its commercially reasonable
efforts to obtain and maintain the listing of each Class of Rated Notes
and Income Notes on the Irish Stock Exchange.


 


7.17.                        AMENDMENT OF CERTAIN DOCUMENTS


 


The Issuer will not agree to any amendment to or
modification, substitution or replacement of the Corporate Services Agreement,
the Collateral Management Agreement, the Account Control Agreement or any Hedge
Agreement at any time without obtaining Rating Agency Confirmation with respect
to any such amendment, modification, substitution or replacement and will not
amend, modify or waive any “non-petition” or “limited recourse” provisions of
any Transaction Document to which it is a party without obtaining a Rating
Agency Confirmation with respect to such modification.  The Trustee shall provide each of the Holders
of Rated Notes of the Controlling Class, the Collateral Manager, the Initial
Hedge Counterparty and the Rating Agencies with a copy of any such amendment or
modification within 10 Business Days before effecting such amendment or
modification.  Prior to entering into any
waiver in respect of the any of the foregoing agreements, the Issuer will
provide to each Rating Agency and the Trustee with written notice of such
waiver.


 


7.18.                        PURCHASE OF COLLATERAL;
INFORMATION REGARDING COLLATERAL; RATING CONFIRMATION


 


(a)                                  The
Issuer will use reasonable efforts to purchase or enter into agreements to
purchase, on or before the Effective Date (first using Collateral Principal
Proceeds and then Uninvested Proceeds), Collateral Interests having an
aggregate Principal Balance, together with the aggregate Principal Balance of
all Eligible Investments purchased with Collateral Principal Collections, of
not less than U.S.$400,000,000 (assuming, for these purposes, settlement (in
accordance with customary settlement procedures in the relevant markets) of all
agreements entered into by the Issuer to acquire Collateral Interests scheduled
to settle on or following the Effective Date).


 


(b)                                 The
Issuer (or the Collateral Manager on behalf of the Issuer) shall cause to be
delivered to the Trustee on the Effective Date an amended Schedule A listing
all Collateral Interests purchased on or before the Effective Date, which
schedule will supersede any prior Schedule A delivered to the Trustee.


 


(c)                                  On
or before the Effective Date, the Issuer (or the Collateral Manager on its
behalf) shall deliver an Officer’s certificate to the Trustee, the Holders
of Rated Notes of the Controlling Class, the Initial Hedge Counterparty and
each Rating Agency (in addition to any such Officer’s Certificate, the
information set forth in such Officer’s Certificate shall also be provided to
S&P in a form that complies with S&P’s Preferred Format) demonstrating
compliance by the Issuer with its obligations under Section 7.18(a) and
satisfaction of each applicable Collateral Quality Test (with the exception of
S&P’s CDO Monitor Test), and Coverage Test or, if on the Effective Date,
the Issuer shall be in default in the performance of its obligations under this
Section 7.18 or any of the Collateral Quality Tests (with the exception of
S&P’s CDO Monitor Test) or the specified 


 


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Coverage Tests shall fail to be satisfied, the Issuer
(or the Collateral Manager on its behalf) shall deliver an Officer’s
certificate to the Trustee, the Holders of Rated Notes of the Controlling
Class, the Initial Hedge Counterparty and each Rating Agency specifying the
details of such default or failure; provided that
the failure to satisfy any of the Collateral Quality Tests or Coverage Tests
does not constitute an Event of Default but such failure may result in a Rating
Confirmation Failure.


 


(d)                                 No
later than fifteen (15) Business Days after the Effective Date, the Issuer (or
the Collateral Manager on its behalf) shall deliver or cause to be delivered to
the Trustee an accountant’s certificate (the Accountant’s
Certificate) (i) confirming the information with respect to
each Collateral Interest set forth on the amended schedule delivered pursuant
to Section 7.18(b) as of the Effective Date, and the information
provided by the Issuer with respect to every other asset included in the
Collateral, (ii) certifying as of the Effective Date the procedures
applied and their associated findings with respect to the Coverage Tests and
the Collateral Quality Tests and (iii) specifying the procedures
undertaken to review data and computations relating to the foregoing clause (ii) held
by the Issuer on the Effective Date.


 


(e)                                  The
Issuer (or the Collateral Manager on its behalf) shall request in writing that
each of the Rating Agencies confirm in writing (a Rating
Confirmation), within thirty (30) Business Days after the
Effective Date, the ratings (including any private or confidential ratings)
assigned by it on the Closing Date to the Rated Notes.  In the event that the Issuer fails to obtain
a Rating Confirmation within 30 days after the Effective Date (a Rating Confirmation Failure),
Collateral Interest Collections and, to the extent Collateral Interest
Collections are insufficient therefor, Collateral Principal Collections shall
be applied on the first Payment Date and any succeeding Payment Dates, as
applicable as provided in Section 11.1 to the extent necessary for each of
the Rating Agencies to provide a Rating Confirmation.


 


(f)                                    No
later than fifteen (15) Business Days following the Effective Date, the Trustee
shall (i) run the S&P CDO Monitor and report to S&P whether or not
the S&P CDO Monitor Test has been satisfied and (ii) report the
S&P scenario default and break-even default rate for each Class of
Notes.


 


(g)                                 Not
later than fifteen (15) Business Days following the end of each calendar
quarter, the Collateral Manager on behalf of the Issuer shall provide to
S&P a report containing the representations and warranties made with
respect to any Commercial Mortgage Loans, Mezzanine Loans, Subordinate Mortgage
Loan Interests, Credit Lease Loans and Tenant Lease Loan Interests purchased by
the Issuer during the preceding calendar quarter, including any exceptions and
qualifications thereto.


 


ARTICLE VIII



SUPPLEMENTAL INDENTURES


 


8.1.      SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF RATED NOTEHOLDERS


 


Without the consent of the Holders of any Rated Notes,
the Initial Hedge Counterparty (except as specified below) or the Income
Noteholders, the Co-Issuers, when authorized by Board Resolutions, and 


 


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the Trustee, at any time
and from time to time subject to the requirement provided below in this Section 8.1
with respect to the ratings of the Rated Notes and subject to Section 8.3,
may enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for certain limited purposes including, inter alia, to:


 


(a)                                  evidence
the succession of another Person to the Issuer or the Co-Issuer and the
assumption by any such successor Person of the covenants of the Issuer herein
and in the Rated Notes and the assumption by any such successor Person of the
covenants of the Co-Issuer herein and in the Rated Notes (other than the Class F
Notes and the Class G Notes) pursuant to Section 7.10 or 7.11;


 


(b)                                 add
to the covenants of the Co-Issuers (in the case of the Rated Notes other than
the Class F Notes or the Class G Notes) or the Issuer (in the case of
the Class F Notes or the Class G Notes) or the Trustee for the
benefit of the Holders of all of the Rated Notes;


 


(c)                                  pledge
any additional property to the Trustee;


 


(d)                                 add
to the conditions, limitations or restrictions on the authorized amount, terms
and purposes of the issue, authentication and delivery of the Rated Notes;


 


(e)                                  effect
the appointment of a successor;


 


(f)                                    reduce
the permitted minimum denomination of the Rated Notes;


 


(g)                                 take
any action necessary or advisable to prevent the Issuer, any Note Paying Agent
or the Trustee from being subject to withholding or other taxes, fees or
assessments, to prevent the Issuer from failing to qualify as a Qualified REIT
Subsidiary or, at any time at which the Issuer is not a Qualified REIT
Subsidiary, to prevent the Issuer from being treated as engaged in a U.S. trade
or business or otherwise being subjected to U.S. federal, state or local income
tax on a net income tax basis; provided  that such action will not cause the Noteholders to
experience any material change to the timing, character or source of income
from the Notes and will not be considered a significant modification resulting
in an exchange for purposes of section 1.1001-3 of the U.S. Treasury
regulations;


 


(h)                                 modify
the restrictions on and procedures for resale and other transfer of the Rated
Notes in accordance with any change in any applicable law or regulation (or the
interpretation thereof) or to enable the Co-Issuers to rely upon any less
restrictive exemption from registration under the Securities Act or the
Investment Company Act (in addition to that provided under Section 3(c)(7) thereunder)
or to remove restrictions on resale and transfer to the extent not required
thereunder;


 


(i)                                     grant,
convey, transfer, assign, mortgage or pledge any property to or with the
Trustee for the benefit of the Secured Parties;


 


(j)                                     correct
or amplify the description of any property at any time subject to the lien of
this Indenture, or to better assure, convey and confirm unto the Trustee any
property subject or required to be subjected to the lien of this Indenture
(including any and all actions necessary or desirable as a result of changes in
law or regulations) or to subject to the lien of this Indenture any additional
property;


 


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(k)                                  make
any change required by the stock exchange on which any Class of Rated Note
is listed, if any, in order to permit or maintain such listing;


 


(l)                                     correct,
amend, cure any manifest error, inconsistency, defect or ambiguity or correct
any typographical error in this Indenture;


 


(m)                               modify
this Indenture to conform the terms herein to the terms set forth in the then
current Offering Circular;


 


(n)                                 modify
any provision (other than in respect of a Reserved Matter), with respect to
restrictions upon the Issuer’s rights to acquire and dispose of Collateral
Interests and other assets, that the Issuer or the Collateral Manager
determines to be necessary or desirable in order for the Issuer to maintain any
desired exemption from registration of the Issuer under the Investment Company
Act or of the Notes under the Securities Act;


 


(o)                                 with
the consent of the Collateral Manager, modify the calculation of the Collateral
Quality Tests and the definitions applicable thereto to correspond with
published or written changes in the guidelines, methodology or standards
established by the Rating Agencies;


 


(p)                                 agree
to any modification of the Indenture or any other Transaction Document (other
than in respect of a Reserved Matter), which is, in the opinion of the Trustee,
proper to make if, in the opinion of the Trustee (based upon an opinion of
counsel), such modification will not have a material adverse effect on the
interests of Holders of any Class or Classes of Notes or the Initial Hedge
Counterparty and which is of a formal, minor or technical nature or is to
correct a manifest error.


 


In addition, the Trustee may, but is not obligated to,
without the consent of the Rated Noteholders or of the Holders of any relevant Class or
Classes of Rated Notes, agree to any modification of any other Transaction
Document which is of a formal, minor or technical nature or is to correct a
manifest error and which is, in the opinion of the Trustee, proper to make, in
the opinion of the Trustee (based upon an opinion of counsel); provided such modification will not have a material adverse
effect on the interests of the Initial Hedge Counterparty or the Holders of any
Class or Classes of Notes.  For so
long as any Rated Notes are Outstanding, no such supplemental indenture shall
be effective unless and until Rating Agency Confirmation has been received.


 


The Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee’s own rights, duties, liabilities or indemnities
under this Indenture or otherwise, except to the extent required by law.


 


Without obtaining the requisite consents of the
applicable parties pursuant to this Section 8.1, the Trustee shall not
enter into any such supplemental indenture if, as a result of such supplemental
indenture, the interests of the Initial Hedge Counterparty any Holder of Rated Notes
or of the Income Noteholders would be materially and adversely affected
thereby.  Unless notified by (i) a
Majority of the then Aggregate Outstanding Amount of any Class of Rated
Notes that such Class will be materially and adversely affected, (ii) a
Majority of the aggregate principal amount of Income Notes Outstanding that the
Income Noteholders will be materially and adversely affected or (iii) the
Initial Hedge Counterparty (with respect to the Initial Hedge Counterparty,
only to the extent that its right to payments in accordance with the Priority
of Payments is adversely affected), the Trustee shall be entitled to rely upon
an Opinion of


 


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Counsel as to whether the
interests of any Holder of Rated Notes or of Income Notes would be materially
and adversely affected by any such supplemental indenture (after giving notice
of such change to the PAA Issued Note Paying Agent).  The Collateral Manager will not be bound by
any supplemental indenture that affects the obligations of the Collateral
Manager unless the Collateral Manager has consented thereto (which consent will
not be unreasonably withheld).  The
Co-Issuers shall not consent to any supplemental indenture that would have a
material adverse effect on the Initial Hedge Counterparty without the consent
of the Initial Hedge Counterparty.


 


At the cost of the Co-Issuers, the Trustee shall
provide to the Rated Noteholders, the PAA Issued Note Paying Agent, the Initial
Hedge Counterparty and each Rating Agency a copy of any proposed supplemental
indenture at least 10 days prior to the execution thereof by the Trustee and,
for so long as any Rated Notes are Outstanding, request a Rating Agency
Confirmation from each Rating Agency with respect to such supplemental
indenture.  As soon as practicable after
the execution by the Trustee and the Issuer of any such supplemental indenture,
the Trustee shall provide to the Rated Noteholders, the PAA Issued Note Paying
Agent, the Initial Hedge Counterparty and each Rating Agency a copy of the
executed supplemental indenture.  For so
long as any Rated Notes are Outstanding, no supplemental indenture shall be
effective unless and until a Rating Agency Confirmation from each Rating Agency
has been received.


 


8.2.      SUPPLEMENTAL INDENTURES WITH
CONSENT OF RATED NOTEHOLDERS


 


With the written consent of the Holders of not less
than 75% of the then Aggregate Outstanding Amount of each adversely affected Class of
Rated Notes and the written consent of 75% of the Holders of the aggregate
principal amount of the Outstanding Income Notes if materially and adversely
affected thereby (which consent shall be evidenced by an Officer’s certificate
of the Issuer certifying that such consent has been obtained), Rating Agency
Confirmation and the written consent of the Initial Hedge Counterparty (which
shall be required only if the right of the Initial Hedge Counterparty to
payments in accordance with the Priority of Payments is adversely affected),
the Trustee and Co-Issuers may, subject to Section 8.3, enter into one or
more indentures supplemental hereto in order to:


 


(a)                                  change
the applicable Stated Maturity Date of the Rated Notes or scheduled redemption
of the principal of or the due date of any installment of interest on the Rated
Notes, reduce the principal amount thereof or the rate of interest thereon, or
the Redemption Price with respect thereto, or change the earliest date on which
Rated Notes may be redeemed, change the provisions of the Indenture relating to
the application of proceeds of any Collateral to the payment of principal of or
interest on the Rated Notes or change any place where, or the coin or currency
in which, Rated Notes or the principal thereof or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity Date thereof (or, in the case of redemption, on
or after the Redemption Date);


 


(b)                                 reduce
the percentage, in principal amount, of Holders of Rated Notes of each Class,
or the percentage of Income Noteholders, whose consent is required for the
authorization of any supplemental indenture or for any waiver of compliance
with certain provisions of the Indenture or certain defaults thereunder or
their consequences;


 


(c)                                  impair
or adversely affect the Collateral other than as permitted by the Indenture;


 


(d)                                 permit
the creation of any security interest ranking prior to or on a parity with the
security interest of the Indenture with respect to any part of the Collateral
or terminate such security interest on any property at any time subject thereto
(other than in accordance 


 


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with the Indenture) or deprive the Holder of any
Rated Note or the Initial Hedge Counterparty of the security afforded by the
security interest of the Indenture;


 


(e)                                  reduce
the percentage of the aggregate principal amount of Holders of Rated Notes of
each Class whose consent is required to request the Trustee to preserve
the Collateral or rescind the Trustee’s election to preserve the Collateral
pursuant to Section 5.5 or to sell or liquidate the Collateral pursuant to
Section 5.4 or 5.5;


 


(f)                                    modify
any of the provisions of this Section 8.2, except to increase the
percentage of the aggregate principal amount of Outstanding Rated Notes of each
Class whose Holders’ consent is required for any such action or to provide
that other provisions of the Indenture cannot be modified or waived without the
written consent of the Holders of 75% of the then Aggregate Outstanding Amount
of each affected Class of Rated Notes Outstanding and the Initial Hedge
Counterparty;


 


(g)                                 modify
the definition of the term “Outstanding” or Section 11.1;


 


(h)                                 modify
any of the provisions of the Indenture in such a manner as to affect the
calculation of the amount of any payment of interest or principal of any Rated
Note on any Payment Date or to affect the right of the Holders of Rated Notes
or the Initial Hedge Counterparty to the benefit of any provisions for the
redemption of such Rated Notes contained therein;


 


(i)                                     modify
provisions related to the bankruptcy or insolvency of the Co-Issuers; or


 


(j)                                     modify
provisions stating that the obligations of the Co-Issuers are joint and several
limited recourse obligations of the Co-Issuers payable solely from the
Collateral in accordance with the terms of the Indenture (Section 8.2(a) through
(j) collectively, the Reserved Matters).


 


The Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
affects the Trustee’s own rights, duties, liabilities or indemnities under this
Indenture or otherwise, except to the extent required by law.


 


Not later than 15 Business Days prior to the execution
of any proposed supplemental indenture pursuant to this Section 8.2, the
Trustee, at the expense of the Co-Issuers, shall mail to the Rated Noteholders,
PAA Issued Note Paying Agent, the Initial Hedge Counterparty, the Collateral
Manager and each Rating Agency a copy of such proposed supplemental indenture
(or a description of the substance thereof) and shall request Rating
Agency Confirmation with respect to such supplemental indenture.  If any Class of Rated Notes is then
rated by any Rating Agency, the Trustee shall not enter into any such
supplemental indenture if, as a result of such supplemental indenture, Rating
Agency Confirmation would not be received with respect to such supplemental
indenture, unless each Holder of Rated Notes of each Class whose rating
will be reduced or withdrawn has, after notice that the proposed supplemental
indenture would result in such reduction or withdrawal of the rating of the Class of
Rated Notes held by such Holder, consented to such supplemental indenture.  Without having obtained the consent of the
applicable parties pursuant to this Section 8.2, the Trustee shall not
enter into any such supplemental indenture if, as a result of such supplemental
indenture, the interests of any Holder of Rated Notes, the Initial Hedge
Counterparty or of the Income Noteholders would be materially and adversely
affected thereby.  Unless notified by (i) the
Holders of a Majority of the then Aggregate Outstanding Amount of any Class of
Rated Notes that such Class will be materially and adversely affected or (ii) the
Holders of a 


 


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Majority of aggregate
principal balance of the Income Notes that the Income Noteholders will be
materially and adversely affected, the Trustee shall be entitled to rely upon
an Opinion of Counsel as to whether the interests of any Holder of Rated Notes
or of the Income Noteholders would be materially and adversely affected by any
such supplemental indenture (after giving notice of such change to the PAA
Issued Note Paying Agent).


 


It shall not be necessary for any Act of Rated
Noteholders or any consent of Income Noteholders under this Section 8.2 to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act or consent shall approve the substance thereof.


 


Promptly after the execution by the Co-Issuers and the
Trustee of any supplemental indenture pursuant to this Section 8.2, the
Trustee, at the expense of the Co-Issuers, shall mail or make available to the
Rated Noteholders, the Initial Hedge Counterparty, the PAA Issued Note Paying
Agent (for forwarding to the Income Noteholders), the Collateral Manager and
each Rating Agency a copy thereof.  Any
failure of the Trustee to publish or mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.  In addition, the
Issuer shall cause to be delivered a copy of the executed supplemental
indenture to the Repository for posting on the Repository in the manner
described in Section 14.3.


 


8.3.      EXECUTION OF SUPPLEMENTAL
INDENTURES


 


In executing or accepting the additional trusts
created by any supplemental indenture permitted by this Section 8 or the
modifications thereby of the trusts created by this Indenture, the Trustee
shall be entitled to receive, and (subject to Sections 6.1 and 6.3) shall be
fully protected in relying in good faith upon an Opinion of Counsel, stating
that the execution of such supplemental indenture is authorized, or permitted
by this Indenture and that all conditions precedent thereto have been complied
with.  The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or indemnities under this Indenture or otherwise.  Such supplemental indenture will not be
binding on the Collateral Manager to the extent that it reduces the rights or
increases the obligations of the Collateral Manager, unless such supplemental
indenture is consented to in writing by the Collateral Manager.


 


8.4.      EFFECT OF SUPPLEMENTAL INDENTURES


 


Upon the execution of any supplemental indenture under
this Section 8, this Indenture shall be modified in accordance therewith,
and such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Rated Notes theretofore and thereafter
authenticated and delivered hereunder or under the Paying Agency Agreement shall
be bound thereby.


 


Notwithstanding anything
to the contrary herein, no amendment or modification of or supplement to this
Indenture will be effective until the Collateral Manager has received written
notice of such amendment, modification or supplement and, if such amendment,
modification or supplement affects the rights, obligations or compensation of
the Collateral Manager, the Collateral Manager has consented in writing to the
terms of the proposed amendment.  In
addition, the consent of any predecessor Collateral Manager will be required to
implement any such amendment, modification or supplemental that would change
any provision of this Indenture entitling such predecessor Collateral Manager
to any fee or other amount payable to it under this Indenture or to reduce or
delay the right of such predecessor to such payment.


 


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8.5.      REFERENCE IN INDENTURE ISSUED
NOTES TO SUPPLEMENTAL INDENTURES


 


Indenture Issued Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Section 8
may, and if required by the Trustee shall, bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture.  If the Co-Issuers shall so determine, new
Indenture Issued Notes, so modified as to conform in the opinion of the Trustee
and the Co-Issuers to any such supplemental indenture, may be prepared and
executed by the Co-Issuers and authenticated and delivered by the Trustee in
exchange for Outstanding Indenture Issued Notes.


 


ARTICLE IX




REDEMPTION OF RATED NOTES


 


9.1.      REDEMPTION OF RATED NOTES


 


The Rated Notes will be subject to redemption in whole
but not in part at their respective Redemption Prices, in each case, in
accordance with the procedures, and subject to the satisfaction of the
conditions, in Section 9.2 below, in the following circumstances:


 


(a)                                  on
or after the Payment Date occurring in July 2007 and continuing until the
Stated Maturity Date (the Call Period),
at the direction of the Holders of not less than 662/3%
of the aggregate principal amount of the Income Notes Outstanding (an Optional Redemption);


 


(b)                                 on
any Payment Date following the occurrence and during the continuation of a Tax
Event, at the direction of the Holders of not less than 662/3%
of the aggregate principal amount of the Income Notes Outstanding (such a
redemption, a Tax Redemption); and


 


(c)                                  automatically
and without any direction by any Person, (i) if the Notes have not been
redeemed in full on or after the Payment Date occurring in July 2017, and (ii) if
any of the conditions set forth in Sections 9.2(a) through (d) below
have not been met or if the highest bidder fails to pay the purchase price
within six (6) Business Days following such Payment Date, the Payment Date
thereafter, unless the Notes are redeemed in full prior to the next Auction
Date (such a redemption, an Auction Call Redemption).


 


9.2.      REDEMPTION PROCEDURES; AUCTION


 


In connection with any Redemption, the Trustee and the
Collateral Manager will, in accordance with the procedures set forth in
Schedule E (the Auction Procedures) and at
the expense of the Issuer, conduct an auction (an Auction)
of the Collateral Interests included in the Collateral on a date (each such
date, an Auction Date) occurring no later than ten (10) Business
Days prior to any scheduled Redemption Date. 
Any of the Initial Purchasers, the Collateral Manager, the Income
Noteholders, the Trustee or their respective Affiliates may, but will not be
required to, bid at the Auction.


 


(a)                                  Any
Redemption will be subject to the satisfaction of each of the following
conditions:


 


(1)                                  the
related Auction has been conducted in accordance with the Auction Procedures;


 


(2)                                  the
Trustee has received bids for the Collateral Interests (or for each of the
related Subpools) from at least two Qualified Bidders (including the winning 


 


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Qualified Bidder) identified on a list of qualified
bidders provided by the Collateral Manager to the Trustee;


 


(3)                                  the
Collateral Manager certifies that the Highest Auction Price would result in the
Sale Proceeds from the Collateral Interests (or the related Subpools) for a
purchase price (paid in cash) plus the
Balance of all Eligible Investments and cash held by the Issuer, plus any termination payments payable by a Hedge
Counterparty to the Issuer (in excess of any amounts payable by the Issuer to a
Hedge Counterparty) resulting from the termination of the related Hedge
Agreement pursuant to the Redemption being at least equal to the sum of (i) the
aggregate Redemption Prices of the Notes plus (ii) any
accrued but unpaid fees and expenses of the Issuer pursuant to Section 11.1(b)(1) and
(19) through (22) (including any termination payments payable by the Issuer
resulting from the termination of any Hedge Agreement pursuant to the
Redemption) plus (iii) any Outstanding  Interest Advances, together with interest thereon plus (iv) (a) in connection with a Tax Redemption
at the direction of the Controlling Class and (b) an Auction Call
Redemption, any additional amounts necessary to satisfy the Income Note
Redemption Approval Condition; and


 


(4)                                  the
bidder(s) who offered the Highest Auction Price for the Collateral
Interests (or the related Subpools) enter(s) into a written agreement with
the Issuer (which the Issuer will execute if the conditions set forth above and
in this Indenture are satisfied, which execution will constitute certification
by the Issuer that such conditions have been satisfied) that obligates the
highest bidder(s) (or the highest bidder for each Subpool) to purchase all
of the Collateral Interests (or the relevant Subpool) and provides for payment
in full (in Cash) of the purchase price to the Trustee on or prior to the
sixth Business Day following the relevant Auction Date.


 


(b)                                 In
addition, any Optional Redemption requires the occurrence of the following:


 


(1)                                  at
least four (4) Business Days before the scheduled Redemption Date, the
Collateral Manager has furnished to the Trustee evidence, in form satisfactory
to the Trustee, that the Collateral Manager on behalf of the Issuer has entered
into a binding agreement or agreements with an institution or institutions (or
guarantor or guarantors of the obligations): (A) with regard to which
Rating Agency Confirmation has been received; or (B) whose long-term
unsecured debt obligations (other than such obligations whose rating is based
on the credit of a person other than such institution) have a credit rating
from Moody’s, if rated by Moody’s, of “P-1” and of at least “A-1” from S&P;
and in each case, to sell, not later than the Business Day immediately
preceding the scheduled Redemption Date, in immediately available funds, all or
part of the Collateral Interests at a purchase price (paid in Cash) which
together with the Balance of all Eligible Investments and Cash held by the
Issuer will be at least equal to the sum of (i) the aggregate Redemption
Prices of the Notes plus (ii) any
accrued but unpaid fees and expenses of the Issuer pursuant to Section 11.1(b)(1) and
(19) through (22) (including any termination payments payable by the Issuer
resulting from the termination of any Hedge Agreement pursuant to the
Redemption); or


 


(2)                                  prior
to selling any Collateral Interests or any other collateral, the Collateral Manager
certifies that the expected proceeds from such sale will, in the 


 


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aggregate, equal or exceed, in each case, the sum of (A) any
amounts payable in connection with an Optional Redemption pursuant to Section 9.2
of the Notes plus (B) all expenses of
such redemption and all other administrative fees and expenses payable on the
related Redemption Date.


 


Provided that all of the conditions set forth in Section 9.2(a) through
(d) have been met, the Trustee will sell and transfer the Collateral
Interests (or each related Subpool), without representation, warranty or
recourse, to the bidder(s) who offered the Highest Auction Price for the
Collateral Interests (or the related Subpools) in accordance with and upon
completion of the Auction Procedures.  If
any of the conditions set forth in Section 9.2(a) through (d) are
not met, (i) the Redemption will not occur on the Payment Date following
the relevant Auction Date, (ii) the Trustee will give notice of the withdrawal
of the Redemption, (iii) subject to clause (iv) below, the
Trustee will decline to consummate such sale and may not solicit any further
bids or otherwise negotiate any further sale of Collateral Interests in
relation to such Auction and (iv) unless the Rated Notes are redeemed in
full prior to the next succeeding Auction Date, the Trustee will conduct
another Auction on the next succeeding Auction Date.


 


The Trustee will deposit the purchase price for the
Collateral Interests in the Collection Account, and the Rated Notes and, to the
extent funds are available therefor, the Income Notes, will be redeemed on the
Payment Date immediately following the relevant Auction Date in the order of
priorities set forth in Section 11.1. 
Any Redemption will only be effected on a Payment Date.  Installments of principal and interest due on
or prior to a Redemption Date shall continue to be payable to the Holders of
such Rated Notes as of the relevant Record Dates according to their terms.


 


9.3.      RECORD DATE; NOTICE TO TRUSTEE OF
REDEMPTION


 


(a)                                  The
Issuer shall set the Redemption Date and the applicable Record Date and give
notice thereof to the Trustee pursuant to Section 9.3(b) below and
shall issue an Issuer Request to the Trustee for the provision of the information
necessary for the Issuer to compile the Redemption Date Statement in accordance
with Section 10.11(b).


 


(b)                                 In
the event of any Redemption, the Issuer shall, at least 45 days (but not more
than 90 days) prior to the Redemption Date, notify the Trustee and the Initial
Hedge Counterparty of such Redemption Date, the applicable Record Date, the
principal amount of each Class of Notes to be redeemed on such Redemption
Date and the Redemption Price of such Notes.


 


9.4.      NOTICE OF REDEMPTION


 


Notice of Redemption will be given by first-class
mail, postage prepaid, mailed not less than eight (8) Business Days prior
to the applicable Redemption Date, to the Initial Hedge Counterparty, each
Rating Agency and each Holder of Rated Notes at such Holder’s address in the
Note Register maintained by the Note Registrar in accordance with the
provisions of this Indenture and to the Collateral Manager.  Rated Notes called for Redemption must be
surrendered at the office of any Note Paying Agent appointed pursuant to this Indenture
in order to receive the Redemption Price. 
The Issuer will also deliver notice of Redemption to the Irish Paying
Agent if and so long as any Class of Rated Notes or the Income Notes to be
redeemed is listed on the Irish Stock Exchange.


 


All notices of redemption shall state:


 


(a)                                  the
applicable Redemption Date;


 


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(b)                                 the
applicable Record Date;


 


(c)                                  the
Redemption Price;


 


(d)                                 that
all the Notes of the relevant Class are being redeemed in full and that
interest on the applicable principal amount of Notes shall cease to accrue on
the date specified in the notice; and


 


(e)                                  the
place or places where such Rated Notes are to be surrendered for payment of the
Redemption Price, which shall be the office or agency of the Note Paying Agent
to be maintained as provided in Section 7.2.


 


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


 


9.5.      NOTICE OF WITHDRAWAL


 


With regard to an Optional Redemption or a Tax
Redemption, any notice of redemption may be withdrawn by the Issuer up to the
fourth Business Day prior to the Redemption Date by written notice to the
Trustee and the Collateral Manager only if the Collateral Manager is unable to
deliver such sale agreement or agreements or certifications, as the case may
be, in form satisfactory to the Trustee. 
With regard to any Redemption, notice of any withdrawal pursuant to Section 9.2
shall be given by the Trustee to each Holder of Rated Notes at such Holder’s
address in the Note Register maintained by the Note Registrar by overnight
courier guaranteeing next day delivery (or second day delivery outside the
United States) sent not later than the third Business Day prior to such
Redemption Date.  In addition, the
Trustee will, if any Class of Rated Notes to have been redeemed is listed
on the Irish Stock Exchange, deliver a notice of such withdrawal to the Irish
Stock Exchange not less than three (3) Business Days prior to such
Redemption Date.


 


9.6.      RATED NOTES PAYABLE ON REDEMPTION
DATE


 


Notice of redemption having been given as aforesaid,
the Notes so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after the
Redemption Date (unless the Issuer shall default in the payment of the
Redemption Price) such Rated Notes shall cease to bear interest.  Upon final payment on a Note to be redeemed,
the Holder shall present and surrender such Note at the place specified in the
notice of redemption on or prior to such Redemption Date; provided that
if there is delivered to the Co-Issuers (i) such security or indemnity as
may be required by them to save each of them harmless and (ii) an
undertaking thereafter to surrender such Note, then, in the absence of notice
to the Co-Issuers that the applicable Note has been acquired by a bona fide
purchaser, such final payment shall be made without presentation or
surrender.  Installments of interest on
Rated Notes of a Class so to be redeemed whose Stated Maturity Date is on
or prior to the Redemption Date shall be payable to the Holders of such Rated
Notes, or one or more predecessor Rated Notes, registered as such at the close
of business on the relevant Record Date according to the terms and provisions
of Section 2.6(e).


 


If any Rated Note called for redemption shall not be
paid upon surrender thereof for redemption, the principal thereof shall, until
paid, bear interest from the Redemption Date at the Applicable Periodic
Interest Rate for each successive Interest Period the Rated Note remains
Outstanding.


 


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9.7.      SPECIAL AMORTIZATION


 


If the Collateral Manager notifies the Trustee in
writing that it has determined, in its sole discretion, that investments in
additional Collateral Interests would either be impractical or not beneficial,
the amount of such Collateral Principal Collections available pursuant to Section 11.1(b)(17),
as determined by the Collateral Manager (the “Special Amortization Amount”)
shall be applied to the payment of principal on the Notes on the next
succeeding Payment Date (a “Special Amortization”) in accordance with Section 11.1(b)(17)(ii) hereof.


 


Payments of principal on the Notes pursuant to Section 11.1(b)(17)(ii) shall
be made:


 


(i)                                     if
the Special Amortization Pro Rata Condition is satisfied, pro rata to the
respective Classes of the Rated Notes pursuant to Section 11.1(b)(17)(i) of
the Priority of Principal Payments provided that a Special Amortization Notice
is delivered by the Collateral Manager to the Issuer and the Trustee; or


 


(ii)                                if the criteria for a
Special Amortization Pro Rata Condition are not satisfied, sequentially to the
respective Classes of the Rated Notes pursuant to Section 11.1(b)(17)(ii)(2) of
the Priority of Principal Payments.


 


If the Collateral Manager elects to initiate a Special
Amortization, the Collateral Manager shall deliver on or prior to the related
Calculation Date, to each of the Trustee and each Rating Agency, advance
written notice (which may be included in the related Note Report) (each, a “Special
Amortization Notice”) specifying the identity and principal amount of each Class of
Rated Notes to be paid pursuant to such Special Amortization and that the
Collateral Manager has been unable to identify for purchase by the Issuer
Substitute Collateral Interests that comply with the Reinvestment Criteria and
the other applicable requirements of the Indenture, and that the other
applicable requirements of the Indenture, and that all other Indenture
requirements for such Special Amortization are complied with.


 


On each Payment Date on which a Special Amortization
occurs, each related Hedge Agreement will be terminated in part in accordance
with the terms and conditions thereof, including compliance with any applicable
requirement that the Issuer receive Rating Agency Confirmation from
S&P,  and any amounts due and payable
pursuant to such Hedge Agreement in connection with such termination thereof
will be paid on such Payment Date in accordance with the terms thereof subject
to this Indenture.


 


ARTICLE X




ACCOUNTS, ACCOUNTINGS AND RELEASES


 


10.1.                        COLLECTION OF FUNDS


 


(a)                                  Except
as otherwise expressly provided herein, the Trustee may demand payment or
delivery of, and shall receive and collect, directly and without intervention
or assistance of any fiscal agent or other intermediary, all funds and other
property payable to or receivable by the Trustee pursuant to this Indenture,
including all payments due on the Pledged Securities, in accordance with the
terms and conditions of such Pledged Securities.  The Trustee shall segregate and hold all such
funds and property received by it in trust for the Secured Parties and shall
apply such funds as provided in this Indenture.


 


(b)                                 Each
of the parties hereto hereby agrees to cause the Custodian or any other
Securities Intermediary that holds any funds or other property for the Issuer
or the Co-Issuer in an Account to agree with the parties hereto that (1) each
Account is a Securities Account in 


 


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respect of which the Trustee is the Entitlement
Holder, (2) each Account is held by a financial institution that has a
combined capital and surplus of at least U.S.$250,000,000 and being subject to
supervision or examination by federal or state banking authority, (3) the
Cash, Securities and other property credited to any Account is to be treated as
a Financial Asset under Article 8 of the UCC and (4) the securities intermediary’s jurisdiction (within
the meaning of Section 8-110 of the UCC) for that purpose will be the
State of New York.  In no event may any
Financial Asset held in any Account be registered in the name of, payable to
the order of, or specially Indorsed to, the Issuer unless such Financial Asset
has also been Indorsed in blank or to the Custodian or other Securities
Intermediary that holds such Financial Asset in such Account.  Each Account shall be held and maintained at
an office located in Minneapolis, Minnesota or Columbia, Maryland.


 


10.2.                        GENERAL PROVISIONS APPLICABLE TO
ACCOUNTS


 


The Payment Account, Collateral Account, Uninvested
Proceeds Account, Collection Account (including each Collateral Sub-Account
therein), Expense Reserve Account, each Hedge Counterparty Collateral Account
(if any) and Interest Reserve Account shall remain at all times with a
financial institution having a long-term debt rating of at least “BBB+” by
S&P.


 


(a)                                  The
Trustee agrees to give the Issuer prompt notice (with a copy to each Hedge
Counterparty, the Collateral Manager, each Rating Agency and the PAA Issued
Note Paying Agent) if any Account or any funds on deposit therein, or otherwise
standing to the credit of any Account, shall become subject to any writ, order,
judgment, warrant of attachment, execution or similar process.


 


(b)                                 The
Collateral Manager shall direct the Trustee to invest and reinvest any funds on
deposit in any of the Accounts (other than the Payment Account) in Eligible
Investments.  In the event that the
Collateral Manager has not delivered investment instructions to the Trustee or
after the occurrence of an Event of Default, the Trustee shall invest and
reinvest any funds on deposit in any Account (other than the Payment Account)
as fully as practicable in investments described in clause (vii) of
the definition of Eligible Investments maturing not later than the earlier of (i) 30
days after the date of such investment or (ii) the Business Day
immediately preceding the next Payment Date. 
With respect to each Account, all interest and other income from
Eligible Investments purchased with funds on deposit in such Account shall be
deposited in such Account, any gain realized from such investments shall be
credited to such Account, and any loss resulting from such investments shall be
charged to such Account.  Any gain or
loss with respect to an Eligible Investment shall be allocated in such a manner
as to increase or decrease, respectively, Collateral Principal Collections
and/or Collateral Interest Collections in the proportion that the amount of
Collateral Principal Collections and/or Collateral Interest Collections used to
acquire such Eligible Investment bears to the purchase price thereof.  The Trustee shall not in any way be held
liable by reason of any insufficiency of any such Account resulting from any
loss relating to any such investment. 
Nothing herein shall be deemed to relieve the Bank or its Affiliates
from any duties or liabilities with respect to investments in obligations of
the Bank or any Affiliate thereof.


 


(c)                                  All
funds deposited from time to time in the Collection Account, the Expense
Reserve Account or the Interest Reserve Account pursuant to this Indenture
shall be held by the Trustee as part of the Collateral and shall be applied to
the purposes herein provided.


 


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10.3.                        COLLATERAL ACCOUNT


 


The Trustee shall, prior to the Closing Date, cause
the Custodian to establish a Securities Account which shall be designated as
the “Collateral Account”, which shall be in the name of the Trustee as
Entitlement Holder in trust for the benefit of the Secured Parties and into
which the Trustee shall from time to time deposit Collateral.  All Collateral from time to time deposited
in, or otherwise standing to the credit of, the Collateral Account pursuant to
this Indenture shall be held by the Trustee as part of the Collateral and shall
be applied to the purposes herein provided. 
The Co-Issuers shall not have any legal, equitable or beneficial
interest in the Collateral Account other than in accordance with the Priority
of Payments.


 


10.4.                        UNINVESTED PROCEEDS ACCOUNT


 


The Trustee shall, prior to the Closing Date, cause to
be established a Securities Account which shall be designated as the “Uninvested
Proceeds Account”, which shall be held in the name of the Trustee as
Entitlement Holder in trust for the benefit of the Secured Parties, into which
the Trustee shall deposit all Uninvested Proceeds (other than the
organizational and structuring fees and expenses of the Co-Issuers (including,
without limitation, the legal fees and expenses of counsel to the Co-Issuers,
Deutsche Bank and the Collateral Manager), the expenses of offering the Rated
Notes and the Income Notes (including placement fees and structuring fees) and
amounts deposited in the Expense Reserve Account on such date).  On or prior to the Effective Date, the
Collateral Manager on behalf of the Issuer may direct the Trustee to, and upon
such direction the Trustee shall, apply funds in the Uninvested Proceeds
Account to purchase additional Collateral Interests and, pending such investment
in additional Collateral Interests, such funds will be invested in Eligible
Investments, as directed by the Collateral Manager, with stated maturities no
later than the Business Day immediately preceding the next Payment Date; provided, however that during the Ramp-Up Period, Substitute
Collateral Interests shall be purchased with Collateral Principal Collections,
if sufficient Collateral Principal Collections are available, and only if
sufficient Collateral Principal Collections are not available, with amounts in
the Uninvested Proceeds Account.  The
Trustee shall transfer any Uninvested Proceeds remaining on deposit in the
Uninvested Proceeds Account on the Effective Date to the Collection Account to
be treated as either (i) Collateral Interest Collections, if Rating Agency
Confirmation to treat such Uninvested Proceeds as such has been obtained or (ii) Collateral
Principal Collections, if such Rating Agency Confirmation has not been
obtained, on the first Payment Date and distributed in accordance with the
Priority of Payments.


 


10.5.                        COLLECTION ACCOUNT


 


(a)                                  Collection Account


 


(1)                                  The
Trustee shall, prior to the Closing Date, cause to be established a Securities
Account which shall be designated as the “Collection Account”, which shall be
held in the name of the Trustee as Entitlement Holder in trust for the benefit
of the Secured Parties.  The Trustee
shall cause to be established two sub-accounts of the Collection Account.  The Trustee shall deposit Collateral
Principal Collections into one sub-account (the Collateral
Principal Collections Sub-Account) and Collateral Interest
Collections into the other sub-account. 
At the direction of the Issuer (or the Collateral Manager on behalf of
the Issuer), the Trustee shall invest all funds on deposit in the Collection
Account (including the Collateral Principal Collection Sub-Account) in Eligible
Investments or Substitute Collateral Interests in accordance with the
requirements and limitations contained in Section 12.1(c).


 


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(2)                                The
Trustee, within one Business Day after receipt of any Distribution or other
proceeds that are not Cash shall so notify the Issuer and the Issuer shall sell
such Distribution or other proceeds for Cash in accordance with Section 12.1.


 


(3)                                The
Trustee shall transfer to the Payment Account for application pursuant to Section 11.1(a) and
in accordance with the calculations and the instructions contained in the Note
Valuation Report prepared by the Issuer pursuant to Section 10.11(a), on
or prior to the Business Day prior to each Payment Date, funds on deposit in
the Collection Account (including reinvestment income) other than
Collections received after the end of the Due Period with respect to such
Payment Date.  An Authorized Officer of
the Issuer or the Collateral Manager’s approval of the Note Valuation Report
shall constitute direction to the Trustee to, and upon such approval, the
Trustee shall, transfer to the Payment Account, for application pursuant to Section 11.1(a) no
later than the Business Day prior to each Payment Date, all Interest Advances
made to or by the Trustee pursuant to Section 10.17 and any amounts then
held in the Collection Account other than proceeds received after the end of
the Due Period with respect to such Payment Date.


 


(4)                                The
Trustee shall withdraw and apply amounts on deposit in the Collection Account
in accordance with any Redemption Date Statement delivered to the Trustee in
connection with the redemption of Rated Notes pursuant to Section 9.1.


 


10.6.                        EXPENSE RESERVE ACCOUNT


 


The Trustee shall, prior
to the Closing Date, cause to be established a Securities Account which shall
be designated as the “Expense Reserve Account”, which shall be held in the name
of the Trustee as Entitlement Holder in trust for the benefit of the Secured
Parties.  Any and all funds at any time
on deposit in, or otherwise standing to the credit of, the Expense Reserve
Account shall be held in trust by the Trustee for the benefit of the Secured
Parties.  On the Closing Date, the
Trustee shall deposit into the Expense Reserve Account an amount equal to U.S.$
25,000 together with an amount sufficient to pay any outstanding fees and
expenses of the Issuer in relation to the offering of the Rated Notes and the
Income Notes which are not paid on the Closing Date.  At the direction of the Issuer (or the
Collateral Manager on behalf of the Issuer), the Trustee shall invest all funds
on deposit in the Expense Reserve Account in Eligible Investments.  Any amounts held in the Expense Reserve
Account in excess of U.S.$ 25,000 on the day which is 60 days following the
Closing Date (or, if such day is not a Business Day, the next following
Business Day) shall be transferred by the Trustee into the Uninvested Proceeds
Account.  Thereafter, the Trustee shall
transfer to the Expense Reserve Account from the Payment Account amounts
required to be deposited therein pursuant to Section 11.1(a) and in
accordance with the calculations and the instruction contained in the Note
Valuation Report prepared by the Issuer pursuant to Section 10.11(a).  Except as provided in Section 11.1, the
only permitted withdrawal from or application of funds on deposit in, or
otherwise standing to the credit of, the Expense Reserve Account shall be to
pay (on any day other than a Payment Date) accrued and unpaid
Administrative Expenses of the Co-Issuers; provided that
the Trustee shall deposit all amounts remaining on deposit in the Expense
Reserve Account at the time when substantially all of the Issuer’s assets have
been sold or otherwise disposed of into the Collections Account for application
as Collateral Interest Collections on the immediately succeeding Payment Date.


 


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10.7.                        INTEREST RESERVE ACCOUNT


 


The Trustee shall, prior
to the Closing Date, cause to be established a Securities Account which shall
be designated as the “Interest Reserve Account”, which shall be held in the
name of the Trustee as Entitlement Holder in trust for the benefit of the
Secured Parties.  Any and all funds at
any time on deposit in, or otherwise standing to the credit of, the Interest
Reserve Account shall be held in trust by the Trustee for the benefit of the
Secured Parties.  At the direction of the
Issuer (or the Collateral Manager on behalf of the Issuer), the Trustee shall
invest all funds on deposit in the Interest Reserve Account in Eligible
Investments.  On each Payment Date, in
accordance with the Priority of Payments, the Trustee will deposit the Interest
Reserve Amount, if any, into the Interest Reserve Account.  The only permitted withdrawal from or
application of funds on deposit in, or otherwise standing to the credit of, the
Interest Reserve Account shall be to deposit into the Payment Account, on the
Business Day prior to each Payment Date, the Balance of the Interest Reserve
Account (including reinvestment income) for distribution as Collateral
Interest Collections in accordance with the Priority of Payments on the related
Payment Date.


 


10.8.                        EARN-OUT ASSET ACCOUNT


 


With respect to any Earn-Out
Asset, the Trustee, at the direction of the Collateral Manager, at the time of
purchase thereof shall withdraw from the principal collection subaccount of the
Collection Account and deposit into the Earn-Out Asset Account the amount of
funds equal to or greater than the combined aggregate principal amounts of the
funding obligations under the any Earn-Out Asset included in the Collateral
Interests less the amount of any previous funding, as specified in such
direction.  Upon initial purchase of an
Earn-Out Asset, such funding obligations shall be treated as part of the
purchase price for such Collateral Interest.


 


As directed by the
Collateral Manager in writing and in accordance with the Indenture, amounts on
deposit in the Earn-Out Asset Account shall be invested in overnight funds that
are Eligible Investments.  On the
Business Day immediately preceding each Payment Date, the income received on
amounts contained in the Earn-Out Asset Account during the related Due Period
shall be withdrawn from such account and deposited in the Collection Account as
Collateral Interest Collections.


 


Any funds in the Earn-Out
Asset Account will be available solely to cover any drawdowns on the related
Earn-Out Assets; provided, however, that the excess of (a) the amounts on
deposit in the Earn-Out Asset Account over (b) the combined aggregate
principal amounts of the undrawn commitments under any Earn-Out Assets included
in the Collateral shall be transferred to Collection Account by the Trustee
(upon the direction of the Collateral Manager) from time to time as Collateral
Principal Collections.  Upon (i) the
sale or maturity of an Earn-Out Asset or (ii) the occurrence of an event
of default with respect to an Earn-Out Asset or any other event or circumstance
which results in the irrevocable reduction of the undrawn commitments under
such Earn-Out Asset, any funds in the Earn-Out Asset Account in excess of the
amount needed to cover any draw-downs on all remaining Earn-Out Assets shall be
transferred, at the direction of the Collateral Manager, to the Collection
Account for distribution as Collateral Principal Collections in accordance with
Section 11.1 on the immediately succeeding Payment Date.


 


10.9.                        PAYMENT ACCOUNT


 


The Trustee shall, prior
to the Closing Date, establish a Securities Account which shall be designated
as the “Payment Account”, which shall be held in the name of the Trustee as
Entitlement Holder in trust for the benefit of the Secured Parties.  Any and all funds at any time on deposit in,
or otherwise standing to the credit of, the Payment Account shall be held in
trust by the Trustee for the


 


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benefit of the
Secured Parties.  Except as provided in Section 11.1,
the only permitted withdrawal from or application of funds on deposit in, or
otherwise standing to the credit of, the Payment Account shall be to pay the
interest on and the principal of the Rated Notes in accordance with their terms
and the provisions of this Indenture and, upon Issuer Order, to pay
Administrative Expenses, amounts due to the Advancing Agent or the Trustee in
connection with the reimbursement of Interest Advances and interest thereon and
other amounts specified therein, each in accordance with the Priority of
Payments.  The Co-Issuers shall not have
any legal, equitable or beneficial interest in the Payment Account other than
in accordance with the Priority of Payments.


 


10.10.                  REPORTS BY TRUSTEE


 


The Trustee shall supply,
in a timely fashion to each Rating Agency (so long as any Rated Notes are rated
by such Rating Agency), the Initial Hedge Counterparty, the Holders of Rated
Notes of the Controlling Class, the Collateral Manager, the PAA Issued Note
Paying Agent, the Initial Purchasers, the Issuer and the Advancing Agent any
information regularly maintained by the Trustee that each such Person may from
time to time request with respect to the Pledged Securities or the Accounts
reasonably needed to complete the Note Valuation Report or to provide any other
information reasonably available to the Trustee by reason of its acting as
Trustee hereunder and required to be provided by Section 10.11.


 


The Trustee shall forward
to the Collateral Manager, the Holders of Rated Notes of the Controlling Class,
the Advancing Agent, or upon request therefor, any Holder of a Rated Note shown
on the Note Register, the Initial Purchasers, the Initial Hedge Counterparty or
the PAA Issued Note Paying Agent, copies of notices and other writings received
by it from the issuer of any Collateral Interest or from any Clearing Agency
with respect to any Collateral Interest advising the holders of such security
of any rights that the holders might have with respect thereto (including
notices of calls and redemptions of securities) as well as all periodic financial
reports received from such issuer and Clearing Agencies with respect to such
issuer; provided that the Trustee shall not
disclose any unpublished S&P Rating assigned by S&P with respect to any
Collateral Interest without the prior consent of S&P.


 


So long as any Class of
Rated Notes is listed on the Irish Stock Exchange, the Irish Paying Agent shall
notify the Irish Stock Exchange not later than the Business Day preceding each
Payment Date of the amount of principal payments to be made on the Rated Notes
of each Class on such Payment Date, any Class C Cumulative Periodic
Interest Shortfall Amount, any Class D Cumulative Periodic Interest
Shortfall Amount, any Class E Cumulative Periodic Interest Shortfall
Amount, any Class F Cumulative Periodic Interest Shortfall Amount, any Class G
Cumulative Periodic Interest Shortfall Amount and the Aggregate Outstanding
Amount of the Rated Notes of each Class and as a percentage of the
original Aggregate Outstanding Amount of the Rated Notes of such Class after
giving effect to the principal payments, if any, on such Payment Date.


 


As promptly as possible
following the delivery of each Note Valuation Report to the Trustee pursuant to
Section 10.11(a) or (b), as applicable, the Issuer shall cause a copy
of such report to be delivered the Repository for posting on the Repository in
the manner described in Section 14.3. 
In connection therewith, each of the Co-Issuers acknowledges and agrees
that each Note Valuation Report shall be posted to the Repository for use in
the manner described in the section headed “Terms of Use” on the Repository.


 


In the event that a
Distribution on any Collateral Interest is not paid to the Trustee on the Due
Date therefor, the Trustee shall provide the Advancing Agent with notice of
such default on the Business Day immediately following such default.  In addition, (i) the Trustee shall
provide the Advancing Agent (either electronically or in hard-copy format) with
copies of all reports received from any trustee, trust administrator, master
servicer or similar administrative entity with respect to the Collateral
Interests and 


 


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(ii) upon
request, the Trustee shall promptly make available to the Advancing Agent any
other information reasonably available to the Trustee by reason of its acting
as Trustee hereunder to permit the Advancing Agent to make a determination of
recoverability with respect to any Interest Advance and to otherwise perform
its advancing obligations hereunder.


 


10.11.                  ACCOUNTINGS


 


(a)                                Payment Date Accounting. 
The Issuer shall, not later than the related Payment Date and after the
reconciliation process described in this Section 10.11, render an
accounting (a Note Valuation Report),
determined as of each Calculation Date, and deliver the Note Valuation Report
to each Rating Agency, the Trustee, the Collateral Manager and the Advancing
Agent and make available via the Trustee’s internet website, initially located
at www.cdolink.com to the Trustee, the Irish Paying Agent, the Initial Hedge
Counterparty, the PAA Issued Note Paying Agent, each Note Transfer Agent,
Deutsche Bank, the Advancing Agent and, upon written request therefor, any
Holder of a Rated Note shown on the Note Register.  The Note Valuation Report shall contain the following
information (which shall, in the case of any Note Valuation Report delivered to
S&P, be presented in a form that complies with S&P’s Preferred Format)
determined, unless otherwise specified below, as of the related Calculation
Date:


 


(1)                                the
calculation showing compliance with each of the Coverage Tests, accompanied by
a list setting forth the applicable maximum or minimum value, percentage or
ratio which must be maintained pursuant to this Agreement with respect to each
of the Coverage Tests and a list setting forth the results of the calculation
of each of the Coverage Tests with respect to the Collateral Interests, the
calculation showing whether the S&P CDO Monitor Test is satisfied
(including the weighted average rating, the default measure, variability
measure and correlation measure, the scenario default rate and/or such other
information required to be computed with respect to the S&P CDO Monitor
Test), and the calculation showing the Moody’s Maximum Weighted Average Rating
Factor Test, the Weighted Average Fixed Rate Coupon, the Weighted Average
Spread, the Weighted Average Life and the S&P Minimum Average Recovery
Rate;


 


(2)                                the
estimated remaining Average Life of each of the Collateral Interests;


 


(3)                                the
Applicable Periodic Interest Rate in respect of each Class of Notes and
the amount of Periodic Interest payable to the Holders of the Notes for such
Payment Date (in the aggregate and by Class);


 


(4)                                the
amount (if any) payable to each Hedge Counterparty pursuant to the related
Hedge Agreement;


 


(5)                                the
amount (if any) payable by each Hedge Counterparty pursuant to the related
Hedge Agreement:


 


(6)                                the
Aggregate Fees and Expenses payable on the next Payment Date on an itemized
basis;


 


(7)                                the
Aggregate Fees and Expenses paid during a period of twelve (12) months ending
on the next Payment Date on an itemized basis;


 


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(8)                                for
the Collection Account:


 


(i)                                   the
Balance on deposit in the Collection Account, the Collateral Principal
Collections Sub-Account at the end of the related Due Period;


 


(ii)                                the
nature and source of any Collections in the Collection Account, the Collateral
Principal Collections Sub-Account, including Collections received since the
date of the last Note Valuation Report;


 


(iii)                             the
amounts payable from the Collection Account in accordance with the priority set
forth in Section 11.1 on the next Payment Date; and


 


(iv)                            the
Balance remaining in the Collection Account immediately after all payments and
deposits to be made on such Payment Date;


 


(v)                               the
Balance on deposit in the Collateral Principal Collections Sub-Account.


 


(9)                                for
the Interest Reserve Account:


 


(i)                                   the
balance on deposit in the Interest Reserve Account at the end of the related
Due Period;


 


(ii)                                the
amount payable from the Interest Reserve Account pursuant to the Priority of
Payments on the next Payment Date;


 


(iii)                             the
Interest Reserve Amount to be paid into the Interest Reserve Account on the
next Payment Date; and


 


(iv)                            the
Balance remaining in the Interest Reserve Account immediately after all
payments and deposits to be made on such Payment Date;


 


(10)                          for the
Expense Reserve Account:


 


(i)                                   the
amount to be paid into the Expense Reserve Account on the next Payment Date;
and


 


(ii)                                the
Balance remaining in the Expense Reserve Account immediately after all payments
and deposits to be made on such Payment Date;


 


(11)                          any
Hedge Receipt Amount or Hedge Payment Amount for the related Payment Date, and
for each Hedge Agreement (if any), the outstanding notional amount of such
Hedge Agreement and the amounts, if any, scheduled to be received or paid, as
the case may be, by the Issuer pursuant to such Hedge Agreement for the related
Payment Date, separately stating the portion payable in accordance with Section 11.1;


 


(12)                          the
aggregate amount of outstanding Interest Advances;


 


(13)                          the
amount of Income Note Excess Funds on the related Payment Date;


 


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(14)                          the
amount of the Senior Collateral Management Fee and the amount of the
Subordinate Collateral Management Fee;


 


(15)                          such
other information as the Collateral Manager, the Initial Purchasers, the
Trustee, any Rating Agency or any Hedge Counterparty may reasonably request;


 


(16)                          with
respect to each Collateral Interest, the Principal Balance, the annual coupon
rate or spread to the relevant floating rate index, the frequency of coupon
payments, the amount of principal payments received, the maturity date, the
issuer, the country in which the issuer is incorporated or organized, the
S&P Industry Classification Group, the Moody’s Recovery Rate, the S&P
Recovery Rate, the S&P Rating and the Moody’s Rating (provided
that if any Moody’s Rating for any Collateral Interest is an “estimated” or “shadow”
rating, such rating shall be identified as “estimated” or “shadow rated”, shall
be disclosed with an asterisk in the place of the applicable estimated or
shadow rating and shall include the date as of which such rating was first
provided by Moody’s to the Issuer); and any S&P Rating which is determined
from an implied rating, a credit estimate, a confidential rating or another
non-public rating, shall not be distinguished and shall either (i) be
reported in a single column with the public ratings of S&P (without
distinguishing the source) or (ii) be reported in a separate column
labeled “Non-public and Implied S&P Rating.”


 


(17)                          the
Principal Balance, the maturity date, the S&P Rating, the Moody’s Rating
and the issuer of each Eligible Investment included in the Collateral;


 


(18)                          (A) the
identity and Principal Balance of each Collateral Interest that became a Credit
Risk Interest, an Impaired Interest, an Equity Interest, a Written Down
Interest, a Withholding Tax Interest, a Deferred Interest PIK Bond, (B) the
date, as provided by the Collateral Manager, on which any Collateral Interest
became a Credit Risk Interest, an Impaired Interest, an Equity Interest, a
Written Down Interest or a Withholding Tax Interest, (C) the date by which
the Issuer or the Collateral Manager is required to declare its intention to
sell or to hold such Collateral Interest, (D) whether the Collateral
Manager has directed the Issuer to sell or not to sell such Collateral
Interest, and (E) the date by which any such sale must occur;


 


(19)                          the
identity of each Collateral Interest that was upgraded or downgraded or placed
on watch for upgrade or downgrade by any Rating Agency since the date of the
last Note Valuation Report;


 


(20)                          the
Principal Balance and identity of each Collateral Interest that was released
for sale indicating the reason for such sale and the amount and identity of
each Collateral Interest that was granted since the date of the last Note
Valuation Report;


 


(21)                          the
identity and Principal Balance of each Collateral Interest that was a Credit
Risk Interest, an Impaired Interest, an Equity Interest, a Written Down
Interest, a Buy/Sell Interest, a Withholding Tax Interest, a Taxed Collateral
Interest, a Taxed Property or a Deferred Interest PIK Bond;


 


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(22)                          the
purchase price of each Pledged Security granted and the sale price of each
Pledged Security subject to a sale since the date of the last Note Valuation
Report; and whether such Pledged Security is a Collateral Interest, an Eligible
Investment or proceeds in the Collection Account;


 


(23)                          the
amount of Purchased Accrued Interest;


 


(24)                          a
description of any transactions with the Collateral Manager, the Issuer, the
Collateral Administrator and the Trustee and any Affiliates thereof;


 


(25)                          the
Weighted Average Recovery Rate for each Class of Notes; and


 


(26)                          the  components of the S&P CDO Monitor Test.


 


Upon receipt of each Note
Valuation Report, the Trustee and the Collateral Manager shall compare the
information contained therein to the information contained in their respective
records with respect to the Collateral and shall, within two (2) Business
Days after receipt of such Note Valuation Report, notify each of the Issuer,
the Collateral Manager, the Trustee, the Initial Hedge Counterparty, Moody’s and
S&P if the information contained in the Note Valuation Report does not
conform to the information maintained by the Trustee or the Collateral Manager
as applicable, with respect to the Collateral, and detail any discrepancies.  In the event that any discrepancy exists, the
Trustee and the Issuer, or the Collateral Manager shall attempt to promptly
resolve the discrepancy.  If such
discrepancy cannot be promptly resolved, the Trustee shall within five (5) Business
Days after discovery of such discrepancy cause the Independent Accountants of
recognized international reputation to review such Note Valuation Report and
the Trustee’s and the Collateral Manager’s records to determine the cause of
such discrepancy.  If such review reveals
an error in the Note Valuation Report or the records of the Trustee or the
Collateral Manager, as the case may be, such item shall be revised accordingly
and, as so revised, shall be utilized in making further calculations.


 


Subject to the terms of
this Agreement, the Trustee shall be entitled to rely on the information
supplied by the Collateral Manager in relation to the preparation of the Note
Valuation Report and shall not be liable for the accuracy or completeness of
such information or the lack thereof.


 


In addition to the
foregoing information, each Note Valuation Report shall include a statement to
the following effect:


 


“The Notes have not been
and will not be registered under the United States Securities Act of 1933, as
amended (the Securities Act), or under any
state securities laws, and the Co-Issuers have not been and will not be
registered under the United States Investment Company Act of 1940, as amended
(the 1940 Act).  Each Holder of the Notes, other than those
Holders that are not “U.S. persons” (U.S. Person)
within the meaning of Regulation S (Regulation S)
under the Securities Act and have acquired their Notes outside the United
States pursuant to Regulation S, is required to be both [(i)] (A) with
respect to any Rated Note, a “qualified institutional buyer” as defined in Rule 144A
under the Securities Act (Qualified Institutional
Buyer) or (B) solely with respect to the Income Notes, any
of NS CDO Holdings IV, LLC, NS Advisors, LLC or any “affiliate” thereof within
the meaning of Rule 405 under the Securities Act that is an “accredited
investor” within the meaning of Rule 501(A) under the Securities Act
(each of the foregoing, a Permitted NS Purchaser)
and (ii) a “qualified purchaser” (Qualified Purchaser)
within the meaning of Section 3(c)(7) of the 1940 Act, purchasing for
its own account or for the account of another Qualified Purchaser, that can
make all of the representations in this Indenture applicable to a holder that
is a U.S. Person.  The beneficial
interest in the Notes may be transferred only to a transferee that meets both
of the criteria in clauses (i) and (ii) above and can make all


 


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of the
representations in this Indenture applicable to a Holder that is a U.S. Person,
except that any such transfer in reliance on Regulation S can be made only to a
transferee that is not a U.S. Person. 
The Issuer has the right to compel any Holder that does not meet the
qualifications and the transfer restrictions set forth in this Indenture to
sell its interest in the Notes, or may sell such interest on behalf of such
owner, pursuant to the Indenture.”


 


(b)                               Redemption Date Instructions.  Not less than five Business Days after
receiving an Issuer Request requesting information regarding a redemption
pursuant to Section 9.1 of the Rated Notes of a Class as of a
proposed Redemption Date set forth in such Issuer Request, the Trustee shall
provide the necessary information (to the extent it is available to the
Trustee) to the Issuer, and the Issuer shall compute the following
information and provide such information in a statement (the Redemption Date Statement) delivered
to the Trustee:


 


(1)                                the
Aggregate Outstanding Amount of the Rated Notes of the Class or Classes to
be redeemed as of such Redemption Date;


 


(2)                                the
amount of accrued interest due on such Rated Notes as of the last day of the
Interest Period immediately preceding such Redemption Date; and


 


(3)                                the
amount in the Collection Account available for application to the redemption of
such Rated Notes.


 


(c)                                If
the Trustee shall not have received any accounting provided for in this Section 10.11
on the first Business Day after the date on which such accounting is due to the
Trustee, the Trustee shall use reasonable efforts to cause such accounting to
be made by the applicable Payment Date or Redemption Date.  To the extent the Trustee is required to
provide any information or reports pursuant to this Section 10.11 as a
result of the failure of the Issuer to provide such information or reports, the
Trustee shall be entitled to retain an Independent certified public accountant
in connection therewith and the reasonable costs incurred by the Trustee for
such Independent certified public accountant shall be reimbursed pursuant to Section 6.8.


 


The Trustee will make the Note Valuation Report
available via its internet website initially located at www.cdolink.com.  All information made available on the Trustee’s
website will be restricted and the Trustee will only provide access to such
reports to those parties entitled thereto pursuant to the Indenture.  In connection with providing access to its
website, the Trustee may require registration and the acceptance of a
disclaimer.  Questions regarding the
Trustee’s website can be directed to the Trustee’s customer service desk at
phone number 301-815-6600.


 


10.12.                  RELEASE OF SECURITIES


 


(a)                                If
no Event of Default has occurred and is continuing and subject to Section 12,
the Issuer shall, in connection with any sale required pursuant to Section 12.1,
by Issuer Order executed by an Authorized Officer of the Issuer and delivered
to the Trustee at least two Business Days prior to the settlement date for any
sale of a security certifying that the conditions set forth in Section 12.1
are satisfied, direct the Trustee to release such security from the lien of
this Indenture against receipt of payment therefor.


 


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(b)                               The
Issuer shall, if notified that the issuer of the Pledged Security requires
delivery of such Pledged Security as a condition to redemption or payment in
full, by Issuer Order executed by an Authorized Officer of the Issuer and
delivered to the Trustee at least two Business Days prior to the date set for
redemption or payment in full of a Pledged Security, certifying that such
security is being redeemed or paid in full, direct the Trustee or, at the
Trustee’s instructions, the Custodian, to deliver such security, if in physical
form, duly endorsed, or, if such security is a Clearing Corporation Security,
to cause it to be presented, to the appropriate paying agent therefor on or
before the date set for redemption or payment, in each case against receipt of
the redemption price or payment in full thereof.


 


(c)                                The
Trustee shall, upon receipt of an Issuer Order at such time as there are no
Rated Notes Outstanding and all obligations of the Co-Issuers hereunder have
been satisfied, release the Collateral from the lien of this Indenture.


 


(d)                               The
Issuer may retain agents (including the Collateral Manager) to assist the
Issuer in preparing any notice or other report required under Section 10.12
and this Section 10.13.


 


10.13.                  REPORTS BY INDEPENDENT
ACCOUNTANTS


 


(a)                                At
the Closing Date the Issuer (or the Collateral Manager on its
behalf) shall appoint a firm of Independent certified public accountants
of recognized national reputation for purposes of preparing and delivering the
reports or certificates of such accountants required by this Indenture.  Upon any resignation by such firm, the Issuer
shall (after consultation with the Collateral Manager) propose a replacement
firm meeting the criteria set forth in the preceding sentence for approval by a
Majority of the Controlling Class.  Upon
approval by a Majority of the Controlling Class, the Issuer shall promptly
appoint such firm by Issuer Order delivered to the Trustee, the Initial Hedge
Counterparty, the Collateral Manager and each Rating Agency.  If the Issuer shall fail to appoint a
successor to a firm of Independent certified public accountants which has
resigned within 30 days after such resignation, the Issuer shall promptly
notify the Trustee of such failure in writing. 
The fees of such Independent certified public accountants and its
successor shall be payable by the Issuer as provided in Section 11.1.


 


(b)                               On
or before May 31 of each year (commencing with May 31, 2006), the
Issuer shall cause to be delivered to the Trustee, the PAA Issued Note Paying
Agent and each Rating Agency an Accountants’ Report specifying the procedures
applied and their associated findings with respect to the Note Valuation
Reports and any Redemption Date Statements prepared in the preceding year.  At least 60 days prior to the Payment Date in
May 2006 (and, if at any time a successor firm of Independent certified
public accountants is appointed, prior to the Payment Date in August following
the date of such appointment), the Issuer shall deliver to the Trustee an
Accountant’s Report specifying in advance the procedures that such firm will
apply in making the aforementioned findings throughout the term of its service
as accountants to the Issuer.  The
Trustee shall promptly forward a copy of such Accountant’s Report to the
Initial Hedge Counterparty, the Rating Agencies, the PAA Issued Note Paying
Agent and each Holder of Class A Notes (or, if no Class A Notes are
Outstanding, each Holder of Class B Notes or, if no Class B Notes are
Outstanding, each Holder of Class C Notes or, if no Class C Notes are
Outstanding, each Holder of Class D Notes or, if no Class D Notes are
Outstanding, each Holder of Class E Notes or, if no Class E Notes are
Outstanding, each Holder of Class F Notes), at the address shown on the
Note Register.  The Issuer shall not
approve the institution of such


 


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procedures if a Majority
of the Controlling Class or the Collateral Manager, by notice to the
Issuer and the Trustee within 30 days after the date of the related notice to
the Trustee, object thereto.


 


(c)                                Any
statement delivered to the Trustee pursuant to Section 10.13(b) above
shall be made available by the Trustee to any Holder of a Rated Note shown on
the Note Register upon written request therefor.


 


10.14.                  REPORTS TO RATING AGENCIES


 


In addition to the
information and reports specifically required to be provided to the Rating Agencies,
the PAA Issued Note Paying Agent, the Holders of Rated Notes of the Controlling
Class and the Initial Hedge Counterparty pursuant to the terms of this
Indenture or the Paying Agency Agreement (as the case may be), the Issuer shall
provide or procure to provide the Rating Agencies and the Initial Hedge
Counterparty with (a) all information or reports delivered to the Trustee
hereunder and (b) such additional information as the Rating Agencies, the
Initial Hedge Counterparty or the PAA Issued Note Paying Agent may from time to
time reasonably request, provided that
such information may be obtained and provided without unreasonable burden or
expense.  The Issuer shall promptly
notify the Trustee, the PAA Issued Note Paying Agent if the rating of any Class of
Rated Notes has been, or it is known by the Issuer that such rating will be,
changed or withdrawn.  The Issuer shall
notify each Rating Agency and the Initial Hedge Counterparty in the case of (i) termination
or amendment of any Transaction Document or organizational document of the
Issuer or Co-Issuer, (ii) termination or change of party to any of the
Transaction Documents or (iii) material breach of any of the Transaction
Documents by any party thereto.


 


10.15.                  TAX MATTERS


 


The Issuer and the
Co-Issuer agree to treat, and hereby notify the Trustee to treat, and, by
accepting a Certificated Class A-E Note, each Holder of a Certificated Class A-E
Note agrees to treat, for U.S. federal income, state and local income and
franchise tax and any other income tax purposes, the Certificated Class A-E
Notes, for so long as NRFC Sub-REIT Corp. or another REIT (in either case, the “Owner
REIT”) qualifies for U.S. federal income tax purposes as a real estate
investment trust (within the meaning of Section 856 of the Code) and 100%
of the Class F Notes, Class G Notes, Income Notes, and Ordinary
Shares are owned by the Owner REIT, directly or indirectly through one or more
Qualified REIT Subsidiaries thereof or one or more entities disregarded as
entities separate from the Owner REIT or its Qualified REIT Subsidiaries, as
indebtedness solely of the Owner REIT, and not as indebtedness of the Issuer or
the Co-Issuer, and at any other time, as indebtedness solely of the Issuer and
not the Co-Issuer.  The Issuer also
agrees to treat the Class F Notes as indebtedness for legal purposes and
for certain tax purposes.  The Issuer
(and, with respect to the Certificated Class A-E Notes, the
Co-Issuer) agree, and, by accepting a Certificated Class A-E Note or
Class F Note, each Holder of a Certificated Class A-E Note or Class F
Note agrees, to report all income (or loss) in accordance with such treatment,
and not to take any action inconsistent with such treatment except as otherwise
required by any taxing authority under applicable law.  The Issuer agrees that, for purposes of U.S.
federal income taxes, for so long as the Owner REIT qualifies for U.S. federal
income tax purposes as a real estate investment trust (within the meaning of Section 856
of the Code) and 100% of the Class F Notes, Class G Notes, Income
Notes, and Ordinary Shares are owned by the Owner REIT, directly or indirectly
through one or more Qualified REIT Subsidiaries thereof or one or more entities
disregarded as entities separate from the Owner REIT or its Qualified REIT
Subsidiaries, the Issuer will be treated as a Qualified REIT Subsidiary of the
Owner REIT, and at any other time, the Issuer agrees not to elect to be treated
as other than a corporation for U.S. federal income tax purposes.


 


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10.16.                TAX INFORMATION


 


The Issuer will furnish to any Holder of Rule 144A
Certificated Notes (or its designee), Rule 144A Global Notes (or its
designees), Certificated Class F Notes (or its designee) and Certificated Class G
Notes (or its designee), upon the request of any such Holder, the necessary
information, and will permit such Holder reasonable access to its books of
account, in order to allow such Holder to make a “qualifying electing fund”
election pursuant to Section 1295 of the Code.


 


The Issuer shall provide on a timely basis to any
holder of a beneficial interest in Rule 144A Certificated Notes (or its
designee), Rule 144A Global Notes (or its designees), Certificated Class F
Notes (or its designee) and Certificated Class G Notes (or its designee),
upon written request therefor certifying that it is such a holder, (i) all
information that a U.S. shareholder making a “qualified electing fund” election
(as defined in the Code) is required to obtain for U.S. federal income tax
purposes and (ii) a “PFIC Annual Information Statement” as described in
Treasury Regulation 1.1295-1 (or any successor Internal Revenue Service release
or Treasury Regulation), including all representations and statements required
by such statement, and will take any other steps necessary to facilitate such
election by a holder of a beneficial interest in any Rule 144A
Certificated Notes, Rule 144A Global Notes, Certificated Class F
Notes (or its designee) and Certificated Class G Notes.  The Issuer shall also provide, upon request
of a Holder of, or a holder of a beneficial interest in, any Rule 144A
Certificated Notes, Rule 144A Global Notes, Certificated Class F
Notes (or its designee) and Certificated Class G Notes, any information
that such Holder or holder of a beneficial interest reasonably requests to
assist such Holder or holder of a beneficial interest with regard to any filing
requirements the Holder or holder of a beneficial interest may have as a result
of the controlled foreign corporation rules under the Code.  The cost and expense of the preparation and
delivery of the PFIC Annual Information Statement shall be at the expense of
the Issuer.


 


10.17.                INTEREST ADVANCES


 


(a)                                With respect to each Payment Date for which
the sum of (i) Collateral Interest Collections collected during the
related Due Period and (ii) funds on deposit in the Collection Account,
are insufficient to remit the interest due and payable with respect to the Class A
Notes and Class B Notes on the following Payment Date (the amount of such
insufficiency, an “Interest Shortfall”), provided
that no Event of Default is occurring (except an Event of Default with respect
to the non-payment of interest on the Class A Notes or the Class B
Notes), the Trustee shall provide the Advancing Agent with written notice of
such Interest Shortfall no later than 12:00 noon (New York time) on the
Business Day immediately preceding such Payment Date.  The Trustee shall provide the Advancing Agent
with notice, prior to any funding of an Interest Advance (as defined below) by
the Advancing Agent, of any additional interest remittances received by the
Trustee after deliver of such initial notice that reduce such Interest
Shortfall.  No later than 5:00 p.m.
(New York time) on the Business Day immediately preceding the related Payment
Date, the Advancing Agent shall advance the difference between such amounts
(each such advance, an “Interest Advance”) by deposit of an amount equal to
such Interest Shortfall in the Payment Account, subject to a determination of
recoverability by the Advancing Agent as described in Section 10.17(b).  Any Interest Advance made by the Advancing
Agent with respect to a Payment Date that is in excess of the actual Interest
Shortfall for such Payment Date shall be refunded to the Advancing Agent by the
Trustee on the same Business Day that such Interest Advance was made (or, if
such Interest Advance is made prior to final determination by the Trustee of
such Interest Shortfall, on the Business Day of such final determination).  The Advancing Agent shall provide the Trustee
written notice of a determination by the Advancing Agent that a proposed
Interest Advance would constitute a Nonrecoverable Advance no later than the


 


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close of business on the Business Day immediately
preceding the related Payment Date.  If
the Advancing Agent does not make any required Interest Advance at or prior to
the time at which distributions are to be made pursuant to Section 11.1,
the Trustee shall be required to make such Interest Advance, subject to a
determination of recoverability by the Trustee as described in Section 10.17(b).  The Trustee shall be entitled to conclusively
rely on any determination by the Advancing Agent that an Interest Advance, if
made, would constitute a Nonrecoverable Advance.  Notwithstanding the foregoing, to the extent
the Advancing Agent fails to make an Interest Advance it was required to make,
the Advancing Agent shall not be entitled to make a recoverability
determination affecting the Trustee’s obligation to provide an Interest Advance
and any such determination shall not be binding on the Trustee.


 


Notwithstanding anything herein to the contrary,
neither the Advancing Agent nor the Trustee shall be required to make any
Interest Advance unless such Person determines, in its sole discretion,
exercised in good faith and, with respect to the Advancing Agent, in accordance
with the Advancing Standards (as defined below), that such Interest Advance,
plus interest expected to accrue thereon at the Reimbursement Rate, will be
recoverable from subsequent payments or collections with respect to all
Collateral Interests.  Such interest on
any Interest Advance will be payable to the Advancing Agent or the Trustee, as
the case may be, out of default charges collected in respect of the Collateral
Interests for the related period or, in connection with the reimbursement of
such Interest Advance, out of Collateral Interest Collections, and to the
extent not reimbursed in full by Collateral Interest Collections, out of
Collateral Principal Collections then on deposit in the Collection Account or
any collection account established in favor of the Underlying Trust (provided that interest on Nonrecoverable
Advances will be payable first from Collateral Principal Collections, and to
the extent not reimbursed in full from Collateral Principal Collections, from
Collateral Interest Collections then on deposit in the Collection Account or
any collection account established in favor of the Underlying Trust).  To the extent interest on any outstanding
Interest Advance cannot be offset by such default charges, such interest
accrued on outstanding Interest Advances made in respect thereof will result in
a reduction in amounts payable on the Collateral Interests.  In determining whether any proposed Interest
Advance will be, or whether any Interest Advance previously made is, a
Nonrecoverable Advance, the Advancing Agent or the Trustee, as applicable, will
take into account:


 


(1)                                amounts that may be realized on each
Mortgaged Property in its “as is” or then current condition and occupancy;


 


(2)                                that such Interest Advances, together with
interest accruing thereon, may only be recovered from subsequent payments or
collections on the Collateral Interests, as allocable thereto from recoveries
on the related Mortgage Properties pursuant to the related participation
agreement, intercreditor agreement or other similar agreement;


 


(3)                                that the related Senior Interests may be
required to be fully paid and any advances (and interest thereon) made in
respect of such Senior Interests may be required to be fully reimbursed, prior
to any amounts recovered in respect of the Mortgaged Properties being allocated
or otherwise made available to the Collateral Interests;


 


(4)                                the possibility and effects of future adverse
change with respect to the Mortgaged Properties, the potential length of time
before such Interest Advance may be reimbursed and the resulting degree of
uncertainty with respect to such


 


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reimbursement; and


 


(5)                                the fact that Interest Advances are intended
to provide liquidity only and not credit support to the Noteholders.


 


For purposes of any such determination of whether an
Interest Advance constitutes or would constitute a Nonrecoverable Advance, an
Interest Advance will be deemed to be nonrecoverable if the Advancing Agent or
the Trustee, as applicable, determines that future payments or collections on
the Collateral Interests may be insufficient to fully reimburse such Interest
Advance, plus interest thereon at the Reimbursement Rate within a reasonable
period of time.  Absent bad faith, the
determination by the Advancing Agent or the Trustee, as applicable, as to the
nonrecoverability of any Interest Advance shall be conclusive and binding on
the Noteholders.  The Trustee shall be
entitled to conclusively rely on any determination by the Advancing Agent that
an Interest Advance, if made, would constitute a Nonrecoverable Advance.  The Collateral Manager and the Advancing
Agent shall provide any information regarding the Collateral reasonably
requested by the Trustee in connection with the Trustee’s determination of
whether any Interest Advance would be recoverable.


 


(b)                               The Advancing Agent and the Trustee will each
be entitled to recover any previously unreimbursed Interest Advance made by it
(including any Nonrecoverable Advance), together with interest thereon, in
accordance with the Section 11.1(k).


 


(c)                                The Advancing Agent and the Trustee will each
be entitled with respect to any Interest Advance made by it (including
Nonrecoverable Advances) to interest accrued on the amount of such Interest
Advance for so long as it is outstanding at the Reimbursement Rate.


 


(d)                               The Advancing Agent’s obligations to make
Interest Advances in respect of the Class A Notes and the Class B
Notes will continue through the date on which the outstanding principal amount
of such Notes is paid in full or redeemed.


 


(e)                                In no event will the Advancing Agent or the
Trustee be required to advance any payments in respect of interest on any Notes
other than the Class A Notes and the Class B Notes or any payments in
respect of principal.


 


(f)                                  In consideration of the performance of its
obligations hereunder, the Trustee shall be entitled to receive, in its capacity
as backup advancing agent, at the times set forth herein and subject to the
conditions and the priority of distribution provisions hereof, to the extent
funds are available therefor, the Trustee Interest Advance Fee.  In addition, to the extent that the Trustee
makes an Interest Advance on any Payment Date that the Advancing Agent was
required, but failed, to make, the Trustee shall be entitled to receive the
Advancing Agent Fee (in addition to the Trustee Interest Advance Fee) for such
Payment Date and any future Payment Dates upon which such Interest Advance
remains outstanding.


 


(g)                               In consideration of the performance of its
obligations hereunder, the Advancing Agent, at the times set forth herein and
subject to the conditions and the priority of distribution provisions hereof,
to the extent funds are available therefor, the Advancing Agent Fee (except to
the extent the Advancing Agent Fee is being paid to the Trustee as described in
clause (g), above).


 


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(h)                               The determination by the Advancing Agent or
the Trustee, as applicable, (i) that it has made a Nonrecoverable Advance
or (ii) that any proposed Interest Advance, if made, would constitute a
Nonrecoverable Servicing Advance, shall be evidenced by an Officer’s
Certificate delivered promptly to the Trustee (or, if applicable, retained
thereby) and the Issuer, setting forth the basis for such determination; provided, that failure to give such notice,
or any defect therein, shall not impair or affect the validity of, or the
Advancing Agent’s or the Trustee’s entitlement to reimbursement with respect
to, any Interest Advance.


 


(i)                                   The Advancing Agent, in such capacity, shall
act in the best interests of the Class A Noteholders and the Class B
Noteholders (taking into account the interests of the Class A Noteholders
and the Class B Noteholders collectively), as determined by the Advancing
Agent, in its good faith judgment and in accordance with this Indenture and
applicable law, and in all cases without regard to: (i) any relationship
that the Advancing Agent may have with any obligor under a Collateral Interest
or any Affiliate of such obligor, any seller or any other parties to this
Indenture; (ii) the ownership of any Note by the Advancing Agent or any of
its Affiliates; (iii) the adequacy of the Advancing Agent’s right to
receive compensation for its services and reimbursement for its costs
hereunder; (iv) the ownership or management of any interests in any
mortgage loans, mortgaged properties, mezzanine loans or Collateral Interests
by the Advancing Agent; (v) any obligation of the Advancing Agent or any
of its Affiliates to cure a breach of a representation or warranty or document
defect with respect to, or repurchase or substitute for any Collateral Interest;
and (vi) any other debt the Advancing Agent or any of its Affiliates has
extended to any obligor under any Collateral Interest or any of its Affiliates
(the criteria specified in this Section 10.17(i), collectively referred to
as the “Advancing Standards”).


 


ARTICLE
XI




APPLICATION OF MONIES


 


11.1.                      DISBURSEMENTS OF FUNDS FROM PAYMENT ACCOUNT; PRIORITY
OF PAYMENTS


 


(a)                                Collateral Interest
Collections.  On any Payment Date that is not a Redemption
Date or a Payment Date following the occurrence and continuation of an
acceleration of the Rated Notes in connection with an Event of Default, in
accordance with a Note Report prepared by the Collateral Administrator as of
the last day of the Due Period preceding such Payment Date, Collateral Interest
Collections, to the extent of Available Funds in the Payment Account, together
with any Interest Advances applied for such Payment Date, less any amounts
applied to reimburse any outstanding Interest Advances, together with interest
thereon, as described in Section 10.17, will be applied by the Trustee in
the following order of priority:


 


(1)                                to pay, in the following order:


 


(i)                                   taxes and filing fees and registration fees
(including, without limitation, annual return fees) payable by the Co-Issuers,
if any; and then,


 


(ii)                                pro rata the amount of any due and unpaid Trustee Fee,
Trustee Interest Advance Fee, Underlying Trust Expenses and PAA Issued Note
Paying Agent Fee; and then,


 


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(iii)                             the amount of any due and unpaid fees to the
Administrator; and then,


 


(iv)                            the amount of any due and unpaid Trustee
Expenses; and then,


 


(v)                               the amount of any due and unpaid fees of any
Collateral Interest servicer owed directly by the Issuer; and then


 


(vi)                            the amount of any due and unpaid fees and
expenses of the Rating Agencies; and then,


 


(vii)                         pro rata the amount of any due and unpaid Advancing
Agent Fee, expenses of the Administrator and Administrative Expenses not
included in (iii), (iv), (v) and (vi) above, including amounts payable
to the Collateral Manager under the Collateral Management Agreement but
excluding the Collateral Management Fee; and then,


 


(viii)                      to deposit to the Expense Reserve Account the
amount needed to bring the amount on deposit therein to U.S.$25,000 (unless the
Collateral Manager directs that a lesser amount be deposited to the Expense
Reserve Account);


 


provided that the cumulative amount paid under (iii) through
(viii) above (excluding any Administrative Expenses due or accrued with
respect to the actions taken on or prior to the Closing Date and accounting
fees that the Trustee is required to pay (other than certain accountants’ fees
related to annual reviews) and fees the Trustee pays in connection with any
Event of Default and any default of the Collateral Interests) may not exceed
U.S.$300,000 in the aggregate in any consecutive 12-month period;


 


(2)                                to pay the Senior Collateral Management Fee
with respect to such Payment Date and any Senior Collateral Management Fee with
respect to a previous Payment Date that was not paid on a previous Payment
Date;


 


(3)                                to pay any Hedge Counterparty any amounts due
to such Hedge Counterparty under any Hedge Agreement, pro rata, including any termination
payments other than any termination payments payable under Section 11.1(a)(23),
below;


 


(4)                                to pay Periodic Interest on the Class A
Notes and any Defaulted Interest on the Class A Notes (and interest
thereon);


 


(5)                                to pay Periodic Interest on the Class B
Notes and any Defaulted Interest on the Class B Notes (and interest
thereon);


 


(6)                                to pay an amount equal to the Interest
Reserve Amount for deposit into the Interest Reserve Account;


 


(7)                                if a Rating Confirmation Failure occurs, on
each Payment Date commencing with the Payment Date immediately following the
Effective Date, to pay principal on the Notes in accordance with the Note
Payment Sequence, in the amounts necessary for each Rating Agency to confirm
its respective ratings of the Notes assigned on the Closing Date or until each Class of
Notes is paid in full;


 


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(8)                                to pay Periodic Interest on the Class C
Notes and, if no Senior Notes are Outstanding, any Defaulted Interest on the Class C
Notes (and interest thereon);


 


(9)                                if either of the Class C Coverage Tests
is not satisfied as of the preceding Calculation Date to pay principal
(including any Class C Cumulative Applicable Periodic Interest Shortfall
Amount, as applicable) of the most Senior Class of Notes then Outstanding
until such Class C Coverage Test is satisfied as of such Calculation Date
or until such most Senior Class of Notes is paid in full, and then to pay
principal of the next most Senior Class of Notes Outstanding until such Class C
Coverage Test is satisfied as of such Calculation Date or until such next most
senior Class of Notes is paid in full and so on, until such Class C
Coverage Test is satisfied or until the Class C Notes are paid in full;


 


(10)                          to pay the Class C Cumulative Applicable
Periodic Interest Shortfall Amount (and interest thereon), if any;


 


(11)                          to pay Periodic Interest on the Class D
Notes and, if no Senior Notes are Outstanding, any Defaulted Interest on the Class D
Notes (and interest thereon);


 


(12)                          if either of the Class D Coverage Tests
is not satisfied as of the preceding Calculation Date, to pay principal
(including any Class C Cumulative Applicable Periodic Interest Shortfall
Amount or Class D Cumulative Applicable Periodic Interest Shortfall
Amount, as applicable) of the most Senior Class of Notes then Outstanding
until such Class D Coverage Test is satisfied as of such Calculation Date
or until such most Senior Class of Notes is paid in full, and then to pay
principal of the next most Senior Class of Notes Outstanding until such Class D
Coverage Test is satisfied as of such Calculation Date or until such next most
Senior Class of Notes is paid in full and so on, until such Class D
Coverage Test is satisfied or until the Class D Notes are paid in full;


 


(13)                          to pay the Class D Cumulative Applicable
Periodic Interest Shortfall Amount (and interest thereon), if any;


 


(14)                          to pay Periodic Interest on the Class E
Notes and, if no Senior Notes are Outstanding, any Defaulted Interest on the Class E
Notes (and interest thereon);


 


(15)                          if either of the Class E Coverage Tests
is not satisfied as of the preceding Calculation Date to pay principal
(including any Class C Cumulative Applicable Periodic Interest Shortfall
Amount, Class D Cumulative Applicable Periodic Interest Shortfall Amount
or Class E Cumulative Applicable Periodic Interest Shortfall Amount, as
applicable) of the most Senior Class of Notes then Outstanding until
such Class E Coverage Test is satisfied as of such Calculation Date or
until such most Senior Class of Notes is paid in full, and then to pay
principal of the next most Senior Class of Notes Outstanding until such Class E
Coverage Test is satisfied as of such Calculation Date or until such next most
Senior Class of Notes is paid in full and so on, until such Class E
Coverage Test is satisfied or until the Class E Notes are paid in full;


 


(16)                          to pay the Class E Cumulative Applicable
Periodic Interest Shortfall Amount (and interest thereon), if any;


 


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(17)                          to pay Periodic Interest on the Class F
Notes and, if no Senior Notes are Outstanding, any Defaulted Interest on the Class F
Notes (and interest thereon);


 


(18)                          if either of the Class F Coverage Tests
is not satisfied as of the preceding Calculation Date to pay principal
(including any Class C Cumulative Applicable Periodic Interest Shortfall
Amount, Class D Cumulative Applicable Periodic Interest Shortfall Amount, Class E
Cumulative Applicable Periodic Interest Shortfall Amount or Class F
Cumulative Applicable Periodic Interest Shortfall Amount, as
applicable) of the most Senior Class of Notes then Outstanding until
such Class F Coverage Test is satisfied as of such Calculation Date or
until such most Senior Class of Notes is paid in full, and then to pay
principal of the next most Senior Class of Notes Outstanding until such Class F
Coverage Test is satisfied as of such Calculation Date or until such next most
Senior Class of Notes is paid in full and so on, until such Class F
Coverage Test is satisfied or until the Class F Notes are paid in full;


 


(19)                          to pay the Class F Cumulative Applicable
Periodic Interest Shortfall Amount (and interest thereon), if any;


 


(20)                          to pay Periodic Interest on the Class G
Notes and, if no Senior Notes are Outstanding, any Defaulted Interest on the Class G
Notes (and interest thereon) to the PAA Issued Note Paying Agent for payment on
the Class G Notes in accordance with the Paying Agency Agreement;


 


(21)                          if either of the Class G Coverage Tests
is not satisfied as of the preceding Calculation Date to pay principal
(including any Class C Cumulative Applicable Periodic Interest Shortfall
Amount, Class D Cumulative Applicable Periodic Interest Shortfall Amount, Class E
Cumulative Applicable Periodic Interest Shortfall Amount, Class F
Cumulative Applicable Periodic Interest Shortfall Amount or Class G
Cumulative Applicable Periodic Interest Shortfall Amount, as
applicable) of the most Senior Class of Notes then Outstanding (in
the case of the Class G Notes, to the PAA Issued Note Paying Agent for
payment on the Class G Notes in accordance with the Paying Agency
Agreement) until such Class G Coverage Test is satisfied as of such
Calculation Date or until such most Senior Class of Notes is paid in full,
and then to pay principal of the next most Senior Class of Notes
Outstanding (in the case of the Class G Notes, to the PAA Issued Note
Paying Agent for payment on the Class G Notes in accordance with the
Paying Agency Agreement) until such Class G Coverage Test is satisfied as
of such Calculation Date or until such next most Senior Class of Notes is
paid in full and so on, until such Class G Coverage Test is satisfied or
until the Class G Notes are paid in full;


 


(22)                          to pay the Class G Cumulative Applicable
Periodic Interest Shortfall Amount (and interest thereon), if any, to the PAA
Issued Note Paying Agent for payment on the Class G Notes in accordance
with the Paying Agency Agreement;


 


(23)                          to pay termination payments payable to any
Hedge Counterparty upon the termination of the related Hedge Agreement, pro rata, if such termination occurred solely
as the result of an event of default or a termination event with respect to the
Hedge Counterparty as Defaulting Party or sole Affected Party, as the case may
be;


 


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(24)                          to pay, in the following order:


 


(i)                                   any due and unpaid Trustee Fee, Trustee
Interest Advance Fee, Underlying Trust Expenses, PAA Issued Note Paying Agent
Fee, Trustee Expenses, Advancing Agent Fee and other Administrative Expenses,
including amounts payable to the Collateral Manager under the Collateral
Management Agreement but excluding the Collateral Management Fee, in each case,
in the same order of priority as provided in Section 11.1(a)(1) above
and to the extent not paid in full under Section 11.1(a)(1) above
without regard to any limitation on any maximum amounts payable on such date
contained therein; and


 


(ii)                                on a pro
rata basis, any due and unpaid
expenses and other liabilities of the Co-Issuers to the extent not paid under Section 11.1(a)(1) above,
whether as a result of an amount limitation imposed thereunder or otherwise;


 


(25)                          to pay the Subordinate Collateral Management
Fee with respect to such Payment Date and any due and unpaid Subordinate
Collateral Management Fee with respect to a previous Payment Date that was not
paid on a previous Payment Date;


 


(26)                          to repay, pro rata, the amount of any
outstanding Cure Advances, if any;


 


(27)                          all Income Note Excess Funds to the PAA
Issued Note Paying Agent, on behalf of the Issuer, for distributions on the
Income Notes in accordance with the Paying Agency Agreement;


 


Provided, however, with respect to this Section 11.1(a):


 


(i)                                   For purposes of determining if any Principal
Coverage Test is satisfied after giving effect to payments of principal, the
denominator of such Principal Coverage Test shall be determined after giving
effect to any principal on the Notes paid pursuant to any clauses prior to such
clause and such clause on the related Payment Date; and


 


(ii)                                with respect to the Class C Notes, Class D
Notes, Class E Notes, Class F Notes and Class G Notes, payment
of principal not constituting the related Cumulative Applicable Periodic
Interest Shortfall Amount shall be paid before principal constituting the
related Cumulative Applicable Periodic Interest Shortfall Amount, if any.


 


(b)                               Collateral Principal
Collections.  On any Payment Date that is not a Redemption
Date or a Payment Date following the occurrence and continuation of an
acceleration of the Rated Notes in connection with an Event of Default, in
accordance with a Note Valuation Report prepared by the Collateral
Administrator as of the last day of the Due Period preceding such Payment Date,
Collateral Principal Collections, to the extent of Available Funds in the
Payment Account, less any amounts applied to reimburse Interest Advances
together with interest thereon, as described in Section 10.17, will be
applied by the Trustee in the following order of priority:


 


143

















 


(1)                                to the payment of the amounts referred to in Section 11.1(a)(1) through
(5), in the same order of priority specified therein, but only to the extent
not paid in full thereunder;


 


(2)                                If the Class A Notes and the Class B
Notes are no longer Outstanding, to pay Periodic Interest on the Class C
Notes and any Defaulted Interest on the Class C Notes (and interest
thereon), to the extent that the amounts paid pursuant to Section 11.1(a)(8) are
insufficient to pay such amounts in full;


 


(3)                                if either of the Class C Coverage Tests
is not satisfied as of the preceding Calculation Date and to the extent that
the amounts paid pursuant to Section 11.1(a)(9) are insufficient to
cause the Class C Coverage Tests to be satisfied, to pay principal
(including any Class C Cumulative Applicable Periodic Interest Shortfall
Amount, as applicable) of the most Senior Class of Notes then
Outstanding until such Class C Coverage Test is satisfied as of such
Calculation Date or until such most Senior Class of Notes is paid in full,
and then to pay principal of the next most Senior Class of Notes
Outstanding until such Class C Coverage Test is satisfied as of such
Calculation Date or until such next most senior Class of Notes is paid in
full and so on, until such Class C Coverage Test is satisfied or until the
Class C Notes are paid in full;


 


(4)                                If the Class A Notes and the Class B
Notes are no longer Outstanding, to pay the Class C Cumulative Applicable
Periodic Interest Shortfall Amount (and interest thereon), to the extent that
the amounts paid pursuant to Section 11.1(a)(10) are insufficient to
pay such amounts in full thereunder;


 


(5)                                If the Class A Notes, the Class B
Notes and the Class C Notes are no longer Outstanding, to pay Periodic
Interest on the Class D Notes and any Defaulted Interest on the Class D
Notes (and interest thereon), to the extent that the amounts paid pursuant to Section 11.1(a)(11)
are insufficient to pay such amounts in full thereunder;


 


(6)                                If either of the Class D Coverage Tests
is not satisfied as of the preceding Calculation Date and to the extent that
amounts paid pursuant to Section 11.1(a)(12) are insufficient to cause the
Class D Coverage Tests to be satisfied, to pay principal (including any Class C
Cumulative Applicable Periodic Interest Shortfall Amount or Class D
Cumulative Applicable Periodic Interest Shortfall Amount, as
applicable) of the most Senior Class of Notes then Outstanding until
such Class D Coverage Test is satisfied as of such Calculation Date or
until such next most Senior Class of Notes is paid in full and so on,
until such Class D Coverage Test is satisfied or until the Class D
Notes are paid in full;


 


(7)                                if the Class A Notes, the Class B
Notes, and the Class C Notes are no longer Outstanding, to pay the Class D
Cumulative Applicable Periodic Interest Shortfall Amount (and interest thereon),
to the extent that amounts paid pursuant to Section 11.1(a)(13) are
insufficient to pay such amounts in full thereunder;


 


(8)                                if the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes are no longer
Outstanding, to pay Periodic Interest on the Class E Notes and any
Defaulted Interest on the Class E Notes (and interest thereon), to the
extent that


 


144

















 


the amounts paid pursuant to
Section 11.1(a)(14) are insufficient to pay such amounts in full
thereunder;


 


(9)                                if either of the Class E Coverage Tests
is not satisfied as of the preceding Calculation Date and to the extent that
the amounts paid pursuant to Section 11.1(a)(15) are insufficient to cause
the Class E Coverage Tests to be satisfied, to pay principal (including
any Class C Cumulative Applicable Periodic Interest Shortfall Amount, Class D
Cumulative Applicable Periodic Interest Shortfall Amount or Class E
Cumulative Applicable Periodic Interest Shortfall Amount, as applicable) of the
most Senior Class of Notes then Outstanding until such Class E
Coverage Test is satisfied as of such Calculation Date or until such most
Senior Class of Notes is paid in full, and then to pay principal of the
next most Senior Class of Notes Outstanding until such Class E
Coverage Test is satisfied as of such Calculation Date or until such next most
Senior Class of Notes is paid in full and so on, until such Class E
Coverage Test is satisfied or until the Class E Notes are paid in full;


 


(10)                          if the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes are no longer
Outstanding, to pay the Class E Cumulative Applicable Periodic Interest
Shortfall Amount (and interest thereon), to the extent that the amounts paid
pursuant to Section 11.1(a)(16) are insufficient to pay such amounts in
full thereunder;


 


(11)                          if the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes and the Class E
Notes are no longer Outstanding, to pay Periodic Interest on the Class F
Notes and any Defaulted Interest on the Class F Notes (and interest
thereon), to the extent that the amounts paid pursuant to Section 11.1(a)(17)
are insufficient to pay such amounts in full thereunder;


 


(12)                          if either of the Class F Coverage Tests
is not satisfied as of the preceding Calculation Date and to the extent that
the amounts paid pursuant to Section 11.1(a)(18) are insufficient to cause
the Class F Coverage Tests to be satisfied, to pay principal (including
any Class C Cumulative Applicable Periodic Interest Shortfall Amount, Class D
Cumulative Applicable Periodic Interest Shortfall Amount, Class E
Cumulative Applicable Periodic Interest Shortfall Amount or Class F
Cumulative Applicable Periodic Interest Shortfall Amount, as applicable) of the
most Senior Class of Notes then Outstanding until such Class F
Coverage Test is satisfied as of such Calculation Date or until such most
Senior Class of Notes is paid in full, and then to pay principal of the
next most Senior Class of Notes Outstanding until such Class F Coverage
Test is satisfied as of such Calculation Date or until such next most Senior Class of
Notes is paid in full and so on, until such Class F Coverage Test is
satisfied or until the Class F Notes are paid in full;


 


(13)                          if the Class A Notes, the Class B Notes,
the Class C Notes, the Class D Notes and the Class E Notes are
no longer Outstanding, to pay the Class F Cumulative Applicable Periodic
Interest Shortfall Amount (and interest thereon), to the extent that the
amounts paid pursuant to Section 11.1(a)(19) are insufficient to pay such
amounts in full thereunder;


 


145














 


(14)                          if the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes, the Class E Notes
and the Class F Notes are no longer Outstanding, to pay Periodic Interest
on the Class G Notes and any Defaulted Interest on the Class G Notes
(and interest thereon) to the PAA Issued Note Paying Agent for payment on the Class G
Notes in accordance with the Paying Agency Agreement, to the extent that the
amounts paid pursuant to Section 11.1(a)(20) are insufficient to pay such
amounts in full thereunder;


 


(15)                          if either of the Class G Coverage Tests
is not satisfied as of the preceding Calculation Date and to the extent that
the amounts paid pursuant to Section 11.1(a)(21) are insufficient to cause
the Class G Coverage Tests to be satisfied, to pay principal (including
any Class C Cumulative Applicable Periodic Interest Shortfall Amount, Class D
Cumulative Applicable Periodic Interest Shortfall Amount, Class E
Cumulative Applicable Periodic Interest Shortfall Amount, Class F
Cumulative Applicable Periodic Interest Shortfall Amount or Class G
Cumulative Applicable Periodic Interest Shortfall Amount, as applicable) of the
most Senior Class of Notes then Outstanding (in the case of the Class G
Notes, to the PAA Issued Note Paying Agent for payment on the Class G
Notes in accordance with the Paying Agency Agreement) until such Class G
Coverage Test is satisfied as of such Calculation Date or until such most
Senior Class of Notes is paid in full, and then to pay principal of the
next most Senior Class of Notes Outstanding (in the case of the Class G
Notes, to the PAA Issued Note Paying Agent for payment on the Class G
Notes in accordance with the Paying Agency Agreement) until such Class G
Coverage Test is satisfied as of such Calculation Date or until such next most
Senior Class of Notes is paid in full and so on, until such Class G
Coverage Test is satisfied or until the Class G Notes are paid in full;


 


(16)                          if the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes, the Class E Notes
and the Class F Notes are no longer Outstanding, to pay the Class G
Cumulative Applicable Periodic Interest Shortfall Amount (and interest thereon)
to the PAA Issued Note Paying Agent for payment on the Class G Notes in
accordance with the Paying Agency Agreement, to the extent that the amounts
paid pursuant to Section 11.1(a)(22) are insufficient to pay such amounts
in full thereunder;


 


(17)                          on or prior to the last day of the
Reinvestment Period to pay, in the following order:


 


(i)                                     to be retained in the Collection Account (i) to
invest in Eligible Investments pending reinvestment in Substitute Collateral
Interests at a later date, (ii) to reinvest in Substitute Collateral
Interests subject to the Reinvestment Criteria and (iii) for payment of a
Special Amortization in accordance with clause (ii) below (to the extent
of available Collateral Principal Collections determined by the Collateral
Manager);


 


(ii)                                  on each Payment Date through and including
the last Payment Date during the Reinvestment Period, if the Collateral Manager
notifies the Trustee in writing that it has decided to declare a Special
Amortization, the amount of available Collateral Principal Collections
determined by the Collateral Manager, (1) if the Special Amortization Pro
Rata


 


146

















 


Condition is satisfied, to
pay each Class of Rated Notes in full, pro rata based on their respective
aggregate outstanding principal amounts and (2) if the Special
Amortization Pro Rata Condition is not satisfied, to pay principal on each
class of Rated Notes in accordance with the Note Payment Sequence until each
such Class of Rated Notes have been paid in full;


 


(18)                          after the end of the Reinvestment Period, to
pay principal on each Class of Rated Notes in accordance with the Note
Payment Sequence until each such Class of Rated Notes have been paid in
full;


 


(19)                          to pay termination payments payable to any
Hedge Counterparty upon the termination of the related Hedge Agreement, pro rata, if such termination occurred
solely as the result of an event of default or a termination event with respect
to the Hedge Counterparty as Defaulting Party or sole Affected Party, as the
case may be, to the extent that the amounts paid pursuant to Section 11.1(a)(23)
are insufficient to pay such amounts in full thereunder;


 


(20)                          to pay, in the following order:


 


(i)                                     any due and unpaid Trustee Fee, Trustee
Interest Advance Fee, Underlying Trust Expenses, PAA Issued Note Paying Agent
Fee, Trustee Expenses, Advancing Agent Fee and other Administrative Expenses,
including amounts payable to the Collateral Manager under the Collateral
Management Agreement but excluding the Collateral Management Fee, in each case,
in the same order of priority as provided in Section 11.1(b)(1) above
and to the extent not paid in full under Section 11.1(b)(1) above and
to the extent that the amounts paid pursuant to Section 11.1(a)(1) and
(24) are insufficient to pay such amounts in full thereunder; and


 


(ii)                                  on a pro
rata basis, any due and unpaid
expenses and other liabilities of the Co-Issuers to the extent not paid under Section 11.1(b)(1) above
and to the extent that the amounts paid pursuant to Section 11.1(a)(1) and
(24) are insufficient to pay such amounts in full thereunder, whether as a
result of an amount limitation imposed thereunder or otherwise;


 


(21)                          to pay the Subordinate Collateral Management
Fee with respect to such Payment Date and any due and unpaid Subordinate
Collateral Management Fee with respect to a previous Payment Date that was not
paid on a previous Payment Date, to the extent that the amounts paid pursuant
to Section 11.1(a)(25) are insufficient to pay such amounts in full
thereunder;


 


(22)                          to repay, pro rata, the amount of any
outstanding Cure Advances, if any; and


 


(23)                          all Income Note Excess Funds to the PAA
Issued Note Paying Agent, on behalf of the Issuer, for distributions on the
Income Notes in accordance with the Paying Agency Agreement.


 


Provided, however, with respect to with respect to this Section 11.1(b);


 


147

















 


(i)                                     For purposes of determining if any Principal
Coverage Test is satisfied after giving effect to payments of principal, the
denominator of such Principal Coverage Test shall be determined after giving
effect to any principal on the Notes paid pursuant to any clauses prior to such
clause and such clause on the related Payment Date; and


 


(ii)                                  with respect to the Class C Notes, Class D
Notes, Class E Notes, Class F Notes and Class G Notes, payment
of principal not constituting the related Cumulative Applicable Periodic
interest Shortfall Amount shall be paid before principal constituting the
related Cumulative Applicable Periodic Interest Shortfall Amount, if any.


 


(c)                                If an Event of Default has occurred and is
continuing, on the date or dates determined by the Trustee, the Trustee will
pay, from all collections from, and proceeds of the sale or liquidation of, the
Collateral (excluding any amounts necessary to reimburse any unpaid Interest
Advances, together with interest thereon), in the following order:


 


(1)                                amounts corresponding to the amounts set
forth in clauses Section 11.1(a)(1) through (3), and (to the
extent not covered by Section 11.1(a)(1) through (3)) Section 11.1(b)(1);


 


(2)                                the Periodic Interest on the Class A
Notes (including Defaulted Interest on such Class A Notes, if any);


 


(3)                                outstanding principal on the Class A
Notes until paid in full;


 


(4)                                the Periodic Interest on the Class B
Notes (including Defaulted Interest on such Class B Notes, if any);


 


(5)                                outstanding principal on the Class B
Notes until paid in full;


 


(6)                                the Periodic Interest on the Class C
Notes (including Defaulted Interest on the Class C Notes, if any) and then
outstanding principal on the Class C Notes (including the Class C
Cumulative Applicable Periodic Interest Shortfall Amount, if any) until paid in
full;


 


(7)                                the Periodic Interest on the Class D
Notes (including Defaulted Interest on the Class D Notes, if any) and then
outstanding principal on the Class D Notes (including Class D
Cumulative Applicable Periodic Interest Shortfall Amount, if any) until paid in
full;


 


(8)                                the Periodic Interest on the Class E
Notes (including Defaulted Interest on the Class E Notes, if any) and then
outstanding principal on the Class E Notes (including Class E Cumulative
Applicable Periodic Interest Shortfall Amount, if any) until paid in full;


 


(9)                                the Periodic Interest on the Class F
Notes (including Defaulted Interest on the Class F Notes, if any) and then
outstanding principal on the Class F Notes (including Class F
Cumulative Applicable Periodic Interest Shortfall Amount, if any) until paid in
full;


 


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(10)                          to the PAA Issued Note Paying Agent, the
Periodic Interest on the Class G Notes (including Defaulted Interest on
the Class G Notes, if any) and then outstanding principal on the Class G
Notes (including Class G Cumulative Applicable Periodic Interest Shortfall
Amount, if any) until paid in full;


 


(11)                          amounts corresponding to the amounts set
forth in Section 11.1(a)(23) through (26) and Section 11.1(b)(19)
through (22); and


 


(12)                          to the PAA Issued Note Paying Agent, any
remaining amounts for distributions on the Income Notes.


 


(d)                               Not later than 12:00 p.m., New York
time, on or before the Business Day preceding each Payment Date, the Issuer
shall, pursuant to Section 10, remit or cause to be remitted to the
Trustee for deposit in the Payment Account an amount of Cash sufficient to pay
the amounts described in Section 11.1(a) and 11.1(b) required to
be paid on such Payment Date.


 


(e)                                If, on any Payment Date, the amount available
in the Payment Account from amounts received in the related Due Period is
insufficient to make the full amount of the disbursements required by the
statements furnished by the Issuer pursuant to Section 10.12(b), the
Trustee shall make the disbursements called for in the order and according to
the priority set forth under Section 11.1(a) and 11.1(b), subject to Section 13.1,
to the extent funds are available therefor.


 


(f)                                  Except as otherwise expressly provided in
this Section 11.1, if on any Payment Date the amount of funds is
insufficient to make the full amount of the disbursements required by any
clause or subclause of Section 11.1(a) or 11.1(b) to different
Persons, the Trustee shall make the disbursements called for by such clause or
subclause ratably in accordance with the respective amounts of such
disbursements then due and payable to the extent funds are available therefor.


 


(g)                               With respect to principal payments of the Class C
Notes, Class D Notes, Class E Notes, Class F Notes and Class G
Notes in connection with a mandatory redemption pursuant to Section 11.1(a)(9),
(12), (15), (18) or (21) and pursuant to Section 11.1(b)(3), (6), (9),
(12) or (15), payment of principal not constituting the Class C Cumulative
Applicable Periodic Interest Shortfall Amount shall be paid before principal
constituting the Class C Cumulative Applicable Periodic Interest Shortfall
Amount, if any, payment of principal not constituting the Class D
Cumulative Applicable Periodic Interest Shortfall Amount shall be paid before
principal constituting the Class D Cumulative Applicable Periodic Interest
Shortfall Amount, if any, payment of principal not constituting the Class E
Cumulative Applicable Periodic Interest Shortfall Amount shall be paid before
principal constituting the Class E Cumulative Applicable Periodic Interest
Shortfall Amount, if any, payment of principal not constituting the Class F
Cumulative Applicable Periodic Interest Shortfall Amount shall be paid before
principal constituting the Class F Cumulative Applicable Periodic Interest
Shortfall Amount, if any, and payment of principal not constituting the Class G
Cumulative Applicable Periodic Interest Shortfall Amount shall be paid before
principal constituting the Class G Cumulative Applicable Periodic Interest
Shortfall Amount, if any.


 


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(h)                               Any amounts to be paid to the PAA Issued Note
Paying Agent pursuant to Section 11(a)(20), (21), (22) and (27) or Section 11.1(b)(14),
(15), (16) and (23) will be released from the lien of this Indenture.


 


(i)                                   No Collateral Principal Collections will be
paid to a Class of Rated Notes in accordance with the Priority of Payments
on a Payment Date if, after giving effect to such payment, any Principal
Coverage Test for a more Senior Class of Rated Notes would have failed.


 


(j)                                   If directed by the Holder of not less than
100% of the Income Notes, the Trustee shall withhold distributions to the PAA
Issued Note Paying Agent that would otherwise be paid pursuant to Section 11.1(a)(27)
and Section 11.1(b)(23) in respect of distributions on the Income
Notes.  Further, any Holder of Income
Notes may elect at any time to make additional capital contributions to the
Issuer, which contributions will be pledged to the Trustee as Collateral
pursuant to this Indenture.  Any such
retained distribution or additional capital contribution will be deemed to be
Collateral Principal Collections received in the Due Period following the Due Period
relating to the Payment Date on which the option is exercised.  Any Holder who makes an additional capital
contribution will not be entitled to interest or additional return thereon.


 


(k)                                The Advancing Agent and the Trustee shall be
entitled to receive the Advancing Agent Fee and the Trustee Interest Advance
Fee, respectively, in each case payable in accordance with the Priority of
Payments.  In addition, the Advancing
Agent and the Trustee shall each be entitled on each Payment Date to
reimbursement of any previously unreimbursed Interest Advance made by it,
together with interest thereon, from Collateral Interest Collections, and to
the extent not reimbursed in full by Collateral Interest Collections, from
Collateral Principal Collections, prior to application of Collections in
accordance with Section 11.1(a), (b) and (c); provided that (i) reimbursement
of Interest Advances (other than Nonrecoverable Advances) shall not cause an
additional Interest Shortfall, (ii) reimbursement of Nonrecoverable Advances,
together with interest thereon, will be made first from Collateral Principal
Collections, and to the extent not reimbursed in full from Collateral Principal
Collections, from Collateral Interest Collections and (iii) reimbursement
of Nonrecoverable Advances shall be made regardless of whether such
reimbursement causes an additional Interest Shortfall.  Prior to an Interest Advance becoming a
Nonrecoverable Advance, such reimbursement shall not be payable to the extent
it would trigger an additional Interest Shortfall and shall be junior in
priority to the payment of interest due on the Class A Notes and the Class B
Notes on such Payment Date, but shall be senior in priority to payment of
interest on any other Class of Notes. 
For purposes of the foregoing, an Interest Advance shall be deemed to be
a Nonrecoverable Advance if the Advancing Agent or the Trustee, as applicable,
determines that future payments or collections on the Collateral Interests
could reasonably be expected to be insufficient to fully reimburse such
Interest Advance, plus interest thereon. 
Amounts used for the reimbursement of Interest Advances and interest
thereon shall not be included in the Available Funds for any Payment Date.  Notwithstanding the foregoing, the Advancing
Agent or the Trustee, as applicable, may opt, in their sole discretion, to
defer the reimbursement for Nonrecoverable Advances to a subsequent Payment
Date or Payment Dates if such reimbursement would trigger an additional
Interest Shortfall.  In addition, based
upon information available at such time, the Advancing Agent or the Trustee, as
applicable, shall provide 15 days prior notice to the Collateral Manager, the
Trustee and each Rating Agency if an Interest Advance is determined to be a
Nonrecoverable Advance and whether or not reimbursement thereof shall be
deferred; provided, that the failure to provide such notice shall in no way
limit


 


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the rights of either of the
Trustee or the Advancing Agent to reimburse itself for Nonrecoverable Advances
on any Payment Date.


 


ARTICLE
XII




PURCHASE AND SALE OF COLLATERAL INTERESTS


 


12.1.                        SALE OF COLLATERAL INTERESTS


 


(a)                                Sale of Collateral Interests.


 


(1)                                Subject to the satisfaction of the conditions
specified in Section 10.12 as applicable, if the Collateral Manager, on
behalf of the Issuer, pursuant to this Article 12, shall direct the
Trustee to sell any Impaired Interest, Credit Risk Interest, Written Down
Interest, Buy/Sell Interest, Taxed Collateral Interest, Taxed Property or
Withholding Tax Interest, the Trustee shall sell in the manner directed by the
Collateral Manager, such Impaired Interest, Equity Interest, Credit Risk
Interest, Written Down Interest, Buy/Sell Interest, Taxed Collateral Interest,
Taxed Property or Withholding Tax Interest.


 


(2)                                Reserved.


 


(3)                                The Collateral Manager may, in its reasonable
discretion, direct the Issuer to sell or otherwise dispose of any Impaired
Interest, Credit Risk Interest, Written Down Interest, Buy/Sell Interest, Taxed
Collateral Interest, Taxed Property or Withholding Tax Interest.  The Collateral Manager shall direct the
Issuer to sell or otherwise dispose of any Collateral Interest that is an
Equity Interest as soon as practicable after such Collateral Interest becomes an
Equity Interest.


 


(4)                                The Collateral Manager may direct the Issuer
to (i) sell any Buy/Sell Interest at any time if the Sales Proceeds
thereof are at least equal to its Principal Balance (adjusted for any
Collateral Principal Payments received thereon) or (ii) purchase the
corresponding pari passu participation from the related participant at any
time, regardless of whether such purchase would occur during the Reinvestment
Period or whether Reinvestment Criteria would be satisfied thereafter, so long
as the Issuer entered into a binding agreement with the Collateral Manager, any
of its Affiliates or any other person qualified in accordance with the
Indenture to purchase such corresponding pari passu participation from the
Issuer at a purchase price equal to that paid by the Issuer to such participant
and such purchaser thereof either (A) has a long term rating by S&P of
“A-” or a short term rating by S&P of “A-1”, (B) is a Qualified
Institutional Lender or (C) Rating Agency Confirmation from S&P has
been received; provided that
Rating Agency Confirmation shall be deemed to have been received with respect
to NRFC DB Holdings, LLC and any NorthStar Subsidiary as described in the
S&P Letter or with respect to any entities described in any amendments to
or renewals of the S&P Letter.


 


(5)                                In the event of a Redemption, the Collateral
Manager shall direct the Trustee to sell Collateral Interests without regard to
the foregoing limitations; provided
that the Sale Proceeds therefrom and other amounts available therefor will be
at least sufficient to pay certain expenses, including all amounts due under
any Hedge


 


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Agreements, and redeem, in
whole but not in part, the Notes at the applicable Redemption Prices; and provided, further, that such Sale Proceeds
are used to make such a Redemption.


 


(6)                                The Collateral Manager shall sell any
Collateral Interest pursuant to this Section 12 only at a price that, in
its judgment, is not substantially less than the market value of such
Collateral Interest at the time of such sale.


 


(b)                               Reinvestment of Sale
Proceeds and Replacement of Collateral Interests.  Subject to Section 9.7 above, following
the Closing Date and during the Reinvestment Period, subject to the
satisfaction of the Eligibility Criteria and the Reinvestment Criteria, the
Collateral Manager, acting on behalf of the Issuer, shall use reasonable
efforts to cause the Trustee to reinvest Sale Proceeds received at any time
from the sale of Collateral Interests that are Impaired Interests, Equity
Interests, Credit Risk Interests, Written Down Interests, Buy/Sell Interests,
Taxed Collateral Interests, Taxed Properties or Withholding Tax Interests in
Substitute Collateral Interests with an aggregate purchase price up to the amount
of the Sale Proceeds; provided, however,
that prior to any such acquisition of Substitute Collateral Interests by or on
behalf of the Issuer in the manner described above, the following conditions
are satisfied on the date of such acquisition:


 


(1)                                the rating by any Rating Agency on (A) the
Class A Notes or Class B Notes is one or more notches below the
rating assigned to the Class A Notes or Class B Notes, as applicable,
by such Rating Agency on the Closing Date; or (B) any other Class of
Rated Notes is two or more notches below the rating assigned to such Class of
Rated Notes by such Rating Agency on the Closing Date; and


 


(2)                                the Reinvestment Criteria are satisfied.


 


12.2.                        PORTFOLIO CHARACTERISTICS


 


Except as provided in Section 12.3(c), a
security will be eligible for inclusion in the Collateral as a Pledged
Collateral Interest only if, as evidenced by an Officer’s certificate from the
Collateral Manager to the Trustee, each of the following eligibility criteria
is satisfied immediately after the Issuer Grants such Collateral Interest to
the Trustee (collectively, the Eligibility Criteria):


 


(a)                                it is issued by an issuer incorporated or
organized under the laws of the United States, the Bahamas, Bermuda, the Cayman
Islands, the British Virgin Islands, the Netherlands Antilles, Jersey, Guernsey
or Luxembourg;


 


(b)                               it is U.S. Dollar-denominated and all cash
flows thereunder are to be paid in U.S. Dollars, and it is not convertible
into, or payable in, any other currency; provided,
however, the requirements of this Section (b) will not be
applicable if Rating Agency Confirmation is obtained;


 


(c)                                it is one of the Specified Types of
Collateral Interests;


 


(d)                               it has an S&P Rating (which rating does
not include a “p”, “pi”, “q”, “t” or “r” subscript) and a Moody’s Rating;


 


(e)                                either (A) the Issuer is a Qualified
REIT Subsidiary or (B) the acquisition, ownership, enforcement and
disposition of such security will not cause the Issuer to be treated as


 


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engaged in a U.S. trade or
business for U.S. federal income tax purposes or otherwise to be subject to tax
on a net income basis in any jurisdiction outside the Issuer’s jurisdiction of
incorporation (other than as attributable to property received in connection
with a workout or foreclosure, as permitted under the Transaction Documents);


 


(f)                                  the payments on such security are not subject
to withholding tax unless the issuer thereof or the obligor thereon is required
to make additional payments sufficient to cover any withholding tax imposed at
any time on payments made to the Issuer with respect thereto (for the avoidance
of doubt, this clause will not apply to any commitment fees with respect to the
unfunded portion of any Earn-Out Assets;


 


(g)                               its acquisition would not cause the Issuer or
the pool of Collateral to be required to register as an investment company
under the Investment Company Act;


 


(h)                               it is not an obligation that is ineligible
under its Underlying Instruments to be purchased by the Issuer and pledged to
the Trustee, and in the case of a Subordinate Mortgage Loan Interest or
Mezzanine Loan, it is not ineligible under its Underlying Instruments to be
purchased by the Underlying Trust;


 


(i)                                   it is not an insurance-linked debt instrument
containing a provision pursuant to which the issuer’s obligation to pay
interest or principal is deferred or forgiven in the event of loss due to
certain natural catastrophes specified in the Underlying Instruments;


 


(j)                                   it provides for the payment of principal at
not less than par upon maturity;


 


(k)                                (A) its Underlying Instruments do not
obligate the Issuer to make any future advances or any other payment except the
purchase price thereof (except for Earn-Out Assets) and (B) in the case of
an Earn-Out Asset, the Issuer has deposited funds in the Earn-Out Asset Account
in an amount sufficient to meet such future advances or future payment
obligations in full;


 


(l)                                   it is not an obligation with respect to
which, in the reasonable judgment of the Collateral Manager, the timely
repayment of principal and interest is subject to substantial non-credit
related risks;


 


(m)                             it is not an Interest Only Security;


 


(n)                               it is not an obligation issued by an Emerging
Market Issuer;


 


(o)                               it is not an obligation that has, at the time
of purchase, any deferred or capitalized interest;


 


(p)                               it is not an obligation that, at the time it
is purchased, is a Credit Risk Interest, an Impaired Interest, a Written Down
Interest or a Deferred Interest PIK Bond;


 


(q)                               it is not a Synthetic Security;


 


(r)                                  If it is a participation interest in a
commercial mortgage loan, the entity that created such participation interest
is either (A) a special purpose entity meeting S&P’s then current
published criteria for bankruptcy-remote special purpose entities, (B) a
Qualified Institutional Lender or (C) an entity with respect to which
Rating Agency Confirmation


 


153

















 


has been received; provided that Rating Agency Confirmation
shall be deemed to have been received with respect to NRFC DB Holdings, LLC and
any NorthStar Subsidiary as described in the S&P Letter or with respect to
any entities described in any amendments to or renewals of the S&P Letter;


 


(s)                                at the time the obligation is purchased by
the Issuer:


 


(1)                                it is not an obligation issued by an issuer
located in a country that imposes foreign exchange controls that effectively
limit the availability or use of U.S. Dollars to make when due the scheduled
payments of principal and interest on such security;


 


(2)                                it is not, and does not provide for
conversion or exchange into, Margin Stock at any time over its life;


 


(3)                                it is not an obligation which (1) was
incurred in connection with a merger, acquisition, consolidation or sale of all
or substantially all of the assets of a person or entity or similar transaction
and (2) by its terms is required to be repaid within one year of the
incurrence thereof with proceeds from additional borrowings or other
refinancing;


 


(4)                                it is not the subject of (1) any offer
by the issuer of such obligation or by any other person made to all of the
holders of such obligation to purchase or otherwise acquire such obligation
(other than pursuant to any redemption in accordance with the terms of the
related underlying instruments) or to convert or exchange such obligation into
or for cash, securities or any other type of consideration or (2) any
solicitation by an issuer of such obligation or any other person to amend,
modify or waive any provision of such obligation or any related underlying instrument,
and has not been called for redemption;


 


(5)                                it is not an Equity Interest;


 


(6)                                it is not an obligation that by the terms of
its underlying instruments provides for conversion or exchange (whether
mandatory or at the option of the issuer or the holder thereof) into equity
capital at any time prior to its maturity;


 


(7)                                it is not a financing by a
debtor-in-possession in any insolvency proceeding;


 


(8)                                it is not a first loss tranche of any
securitization that does not have an S&P Rating (as defined in clause (i) of
the definition of S&P Rating) that addresses the obligation of the obligor
(or guarantor, if applicable) to pay principal of and interest on the relevant
Collateral Interest in full, which ratings are monitored on an ongoing basis by
the relevant Rating Agency;


 


(9)                                it is not an obligation that provides for the
payment of interest in cash less frequently than semi-annually;


 


(10)                          (A) if it is a Commercial Mortgage Loan,
a Mezzanine Loan, a Subordinate Mortgage Loan Interest, a Credit Lease Loan or
a Tenant Lease Loan Interest, no commercial mortgage loan underlying, securing
or constituting such Collateral Interest has a maturity date (including any
extension option) that is later than ten


 


154

















 


(10) years prior to the
Stated Maturity Date; and (B) if it is a CMBS, such CMBS (without regard
to the maturities of any collateral underlying such CMBS) does not have a rated
final maturity date later than the Stated Maturity Date; and (C) if it is
a Real Estate CDO Security, it does not have a stated maturity later than the
Stated Maturity Date; and


 


(11)                          if it is a Deemed Floating Rate Collateral
Interest, the Deemed Floating Asset Hedge entered into with respect to such
Deemed Floating Rate Collateral Interest conforms to all requirements set forth
in the definition of “Deemed Floating Asset Hedge”;


 


(t)                                    if it is a (1) Mezzanine Loan or a
Participation Interest therein, it is serviced (or in the case of a Mezzanine
Loan acquired by the Issuer on the Closing Date or within thirty days
thereafter, will be serviced within thirty days of the Closing Date) in
accordance with a servicing agreement which complies in all material respects
with S&P’s criteria for Mezzanine Loan servicing agreements, (2) Subordinate
Mortgage Loan Interest and the related senior mortgage loan is not otherwise
serviced in connection with a commercial mortgage backed securitization
transaction, it is serviced in accordance with the related participation
agreement or intercreditor agreement and (3) Credit Lease Loan, a Tenant
Lease Loan Interest or a Commercial Mortgage Loan, or a Participation Interest
therein, it is serviced in accordance with a servicing agreement the terms of
which are substantially similar to the terms of servicing agreements entered
into in connection with CMBS transactions rated by S&P or a servicing
agreement with respect to which Rating Agency Confirmation from S&P has
been received;


 


(u)                                 if it is a Mezzanine Loan, a Subordinate
Mortgage Loan Interest, a Commercial Mortgage Loan (other than a Credit Lease
Loan or a Tenant Lease Loan Interest), or a Participation Interest therein,
such Collateral Interest shall have the benefit of (i) either (A) representations
and warranties made by the Seller of such Collateral Interest (with such
exceptions, qualifications and omissions as the Collateral Manager shall
reasonably determine) substantially similar to either (x) the
representations and warranties set forth on Schedule J-1 hereto or (y) in
the case of a Mezzanine Loan or a Subordinate Mortgage Loan Interest, the
representations and warranties made by the Seller of such Collateral Interest
in connection with the CMBS transaction including the related senior interest
in such Collateral Interest (provided
that such CMBS transaction is rated by S&P) or (B) representations and
warranties with respect to which Rating Agency Confirmation from S&P has
been received and (ii) remedies for the breach of such representations and
warranties or the existence of document defects that are either (A) substantially
similar to the remedies provided in the Asset Transfer Agreement or (B) with
respect to which Rating Agency Confirmation from S&P has been received;


 


(v)                                 if it is a Credit Lease Loan or a Tenant
Lease Loan Interest or a Participation Interest therein, such Collateral
Interest shall have the benefit of (i) either (A) representations and
warranties made by the Seller of such Collateral Interest (with such
exceptions, qualifications and omissions as the Collateral Manager shall
reasonably determine) substantially similar to the representations and
warranties set forth on Schedule J-1 (to the extent such representations and
warranties are applicable to Credit Lease Loans and Tenant Lease Loan
Interests) and Schedule J-2 hereto or (B) representations and warranties
with respect to which Rating Agency Confirmation from S&P has been received
and (ii) remedies for the breach of representations and warranties or the
existence of document defects that are either (A) substantially similar to
the remedies provided in the Asset Transfer Agreement or (B) with respect
to which Rating Agency Confirmation from S&P has been received; and


 


155














 


(w)                               if
it is a Collateral Interest acquired after the Closing Date, it will be
transferred (i) from a Seller to the Depositor pursuant to an agreement
substantially similar to the Asset Transfer Agreement and (ii) from the
Depositor (in the case of a CMBS or Real Estate CDO Security) or the Underlying
Trustee (in the case of a Trust Certificate) to the Issuer pursuant to an
agreement substantially similar to the Bill of Sale;


 


provided that notwithstanding
anything to the contrary herein, the Issuer may, while attempting to dispose of
property acquired in foreclosure or similar circumstances, make an election
under Section 882(d) of the Code to treat the income related to real
property located in the United States as income that is effectively connected
with a U.S. trade or business.


 


12.3.                      CONDITIONS APPLICABLE TO ALL
TRANSACTIONS INVOLVING SALE OR GRANT


 


(a)                                  Any
transaction effected under Section 5, Section 9, Section 10.2 or
Section 12.1 shall be conducted on an arm’s length basis and if effected
with the Issuer, the Trustee, the Collateral Manager or any Affiliate of any of
the foregoing, shall be effected in a secondary market transaction on terms at
least as favorable to the Rated Noteholders as would be the case if such Person
were not so Affiliated; provided that
any disposition of a Collateral Interest in accordance with Section 12.1
shall be deemed to comply with this Section 12.3(a).  The Trustee shall have no responsibility to
oversee compliance with this clause by the other parties.


 


(b)                                 Upon
any purchase or substitution pursuant to this Section 12, all of the
Issuer’s right, title and interest to the Pledged Security or Securities shall
be, and hereby is, Granted to the Trustee pursuant to this Indenture, such
Pledged Security or Securities shall be registered in the name of the Trustee,
and, if applicable, the Trustee shall receive such Pledged Security or
Securities.  The Trustee shall receive,
not later than the date of delivery of any Pledged Security pursuant to a
purchase under this Section 12, (a) an Officer’s Certificate of the
Collateral Manager certifying (1) compliance with the Reinvestment
Criteria in accordance with Section 12.1(b), (2) that the Collateral
Debt Security to be sold constitutes an Impaired Interest, Credit Risk
Interest, Written Down Interest, Buy/Sell Interest, Taxed Collateral Interest,
Taxed Property or Withholding Tax Interest and (3) that any security to be
purchased satisfies the definition of Collateral Interest and (b) an
Officer’s Certificate of the Collateral Manager on behalf of the Issuer
containing the statements set forth in Section 3.2(b)(2) through (4),
(6) and (7).


 


(c)                                  Notwithstanding
anything contained in this Section 12 to the contrary, the Issuer shall,
subject to Section 12.3(d), have the right to effect any transaction to
which the Initial Hedge Counterparty, Holders of Rated Notes evidencing 100% of
the Aggregate Outstanding Amount of each Class of Rated Notes, and each
Income Noteholder has consented, and of which each Rating Agency has been
notified in advance.


 


(d)                                 Except
as specifically provided in this Indenture, at any time at which the Issuer is
not a Qualified REIT Subsidiary, the Issuer may not (i) engage in any
business or activity that would cause the Issuer to be treated as engaged in a
U.S. trade or business for U.S. federal income tax purposes or (ii) acquire
or hold any asset that is an equity interest in an entity that is treated as a
partnership engaged in a U.S. trade or business for U.S. federal income tax
purposes or the acquisition or ownership of which otherwise would subject the
Issuer to net income tax in any jurisdiction outside its jurisdiction of
incorporation.


 


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ARTICLE XIII




SECURED PARTIES’ RELATIONS


 


13.1.                      SUBORDINATION


 


(a)                                  Anything
in this Indenture or the Rated Notes to the contrary notwithstanding, the
Issuer and the Holders of the Class B Notes, the Class C Notes, the Class D
Notes, the Class E Notes, the Class F Notes and the Class G
Notes agree for the benefit of the Holders of the Class A Notes that the Class B
Notes, the Class C Notes, the Class D Notes, the Class E Notes,
the Class F Notes and the Class G Notes and the Issuer’s rights in
and to the Collateral (with respect to the Class A Notes, the Subordinate Interests) shall be
subordinate and junior to the Class A Notes to the extent and in the
manner set forth in this Indenture, including as set forth in Section 11.1(a) and
hereinafter provided.  If any Event of
Default (including an Event of Default specified in Section 5.1(g) or
(h)) has occurred and has not been cured or waived, the Class A Notes
shall be paid in full in Cash or, to the extent a Majority of the Class A
Notes consent, other than in Cash, before any further payment or distribution
is made on account of the Subordinate Interests.  The Holders of Rated Notes evidencing
Subordinate Interests and the holders of equity in the Issuer and the Co-Issuer
agree, for the benefit of the Holders of the Class A Notes, not to cause
the filing of a petition in bankruptcy against the Issuer or the Co-Issuer for
failure to pay to them amounts due under the Rated Notes evidencing such
Subordinate Interests or hereunder until the payment in full of the Class A
Notes and not before one year and one day has elapsed since such payment or, if
longer, the applicable preference period then in effect, including any period
established pursuant to the laws of the Cayman Islands.


 


(b)                                 Anything
in this Indenture or the Rated Notes to the contrary notwithstanding, the
Issuer and the Holders of the Class C Notes, the Class D Notes, the Class E
Notes, the Class F Notes and the Class G Notes agree for the benefit
of the Holders of the Class A Notes and the Class B Notes that the Class C
Notes, the Class D Notes, the Class E Notes, the Class F Notes
and the Class G Notes and the Issuer’s rights in and to the Collateral
(with respect to the Class A Notes and the Class B Notes the Subordinate Interests) shall be
subordinate and junior to the Class A Notes and the Class B Notes to
the extent and in the manner set forth in this Indenture, including as set
forth in Section 11.1(a) and hereinafter provided.  If any Event of Default (including an Event
of Default specified in Section 5.1(g) or (h)) has occurred and has
not been cured or waived, the Class A Notes and the Class B Notes
shall be paid in full in Cash or, to the extent a Majority of the Class A
Notes and the Class B Notes consent, other than in Cash, before any
further payment or distribution is made on account of the Subordinate
Interests.  The Holders of Rated Notes
evidencing Subordinate Interests and the holders of equity in the Issuer and
the Co-Issuer agree, for the benefit of the Holders of the Class A Notes
and the Class B Notes, not to cause the filing of a petition in bankruptcy
against the Issuer or the Co-Issuer for failure to pay to them amounts due
under the Rated Notes evidencing such Subordinate Interests or hereunder until
the payment in full of the Class A Notes and the Class B Notes and
not before one year and one day has elapsed since such payment or, if longer,
the applicable preference period then in effect, including any period
established pursuant to the laws of the Cayman Islands.


 


(c)                                  Anything
in this Indenture or the Rated Notes to the contrary notwithstanding, the
Issuer and the Holders of  the Class D
Notes, the Class E Notes, the Class F Notes and the Class 


 


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G Notes agree for the benefit of the Holders of the Class A
Notes, the Class B Notes and the Class C Notes that the Class D
Notes, the Class E Notes, the Class F Notes and the Class G
Notes and the Issuer’s rights in and to the Collateral (with respect to the Class A
Notes, the Class B Notes and the Class C Notes, the Subordinate Interests) shall be
subordinate and junior to the Class A Notes, the Class B Notes and
the Class C Notes to the extent and in the manner set forth in this
Indenture including as set forth in Section 11.1(a) and hereinafter
provided.  If any Event of Default
(including an Event of Default specified in Section 5.1(g) or (h))
has occurred and has not been cured or waived the Class A Notes, the Class B
Notes and the Class C Notes shall be paid in full in Cash or, to the
extent a Majority of the Class A Notes, the Class B Notes and the Class  C
Notes consent, other than in Cash, before any further payment or distribution
is made on account of the Subordinate Interests.  The Holders of Rated Notes evidencing
Subordinate Interests and the holders of equity in the Issuer and the Co-Issuer
agree, for the benefit of the Holders of the Class A Notes, the Class B
Notes and the Class C Notes, not to cause the filing of a petition in
bankruptcy against the Issuer or the Co-Issuer for failure to pay to them
amounts due under the Rated Notes evidencing such Subordinate Interests or
hereunder until the payment in full of the Class A Notes, the Class B
Notes and the Class C Notes and not before one year and one day has
elapsed since such payment or, if longer, the applicable preference period then
in effect, including any period established pursuant to the laws of the Cayman
Islands.


 


(d)                                 Anything
in this Indenture or the Rated Notes to the contrary notwithstanding, the
Issuer and the Holders of the Class E Notes, the Class F Notes and
the Class G Notes agree for the benefit of the Holders of the Class A
Notes, the Class B Notes, the Class C Notes and the Class D
Notes that the Class E Notes, the Class F Notes and the Class G
Notes and the Issuer’s rights in and to the Collateral (with respect to the Class A
Notes, the Class B Notes, the Class C Notes and the Class D
Notes, the Subordinate Interests) shall
be subordinate and junior to the Class A Notes, the Class B Notes,
the Class C Notes and the Class D Notes to the extent and in the
manner set forth in this Indenture including as set forth in Section 11.1(a) and
hereinafter provided.  If any Event of
Default (including an Event of Default specified in Section 5.1(g) or
(h)) has occurred and has not been cured or waived the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes shall be paid in full
in Cash or, to the extent a Majority of each of the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes consent, other than in
Cash, before any further payment or distribution is made on account of the
Subordinate Interests.  The Holders of
Rated Notes evidencing Subordinate Interests and the holders of equity in the
Issuer and the Co-Issuer agree, for the benefit of the Holders of the Class A
Notes, the Class B Notes, the Class C Notes and the Class D
Notes, not to cause the filing of a petition in bankruptcy against the Issuer
or the Co-Issuer for failure to pay to them amounts due under the Rated Notes
evidencing such Subordinate Interests or hereunder until the payment in full of
the Class A Notes, the Class B Notes, the Class C Notes and the Class D
Notes and not before one year and one day has elapsed since such payment or, if
longer, the applicable preference period then in effect, including any period
established pursuant to the laws of the Cayman Islands.


 


(e)                                  Anything
in this Indenture or the Rated Notes to the contrary notwithstanding, the
Issuer and the Holders of the Class F Notes and the Class G Notes
agree for the benefit of the Holders of the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes and the Class E
Notes that the Class F Notes and the Class G Notes and the Issuer’s
rights in and to the Collateral (with respect to the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes and the Class E
Notes, the Subordinate Interests) shall
be 


 


158

















 


subordinate and junior to the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes and the Class E
Notes to the extent and in the manner set forth in this Indenture including as
set forth in Section 11.1(a) and hereinafter provided.  If any Event of Default (including an Event
of Default specified in Section 5.1(g) or (h)) has occurred and has
not been cured or waived the Class A Notes, the Class B Notes, the Class C
Notes, the Class D Notes and the Class E Notes shall be paid in full
in Cash or, to the extent a Majority of each of Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes and the Class E
Notes consent, other than in Cash, before any further payment or distribution
is made on account of the Subordinate Interests.  The Holders of Rated Notes evidencing
Subordinate Interests and the holders of equity in the Issuer and the Co-Issuer
agree, for the benefit of the Holders of the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes and the Class E
Notes, not to cause the filing of a petition in bankruptcy against the Issuer
or the Co-Issuer for failure to pay to them amounts due under the Rated Notes
evidencing such Subordinate Interests or hereunder until the payment in full of
the Class A Notes, the Class B Notes, the Class C Notes, the Class D
Notes and the Class E Notes and not before one year and one day has
elapsed since such payment or, if longer, the applicable preference period then
in effect, including any period established pursuant to the laws of the Cayman
Islands.


 


(f)                                    Anything
in this Indenture or the Rated Notes to the contrary notwithstanding, the
Issuer and the Holders of the Class G Notes agree for the benefit of the
Holders of the Class A Notes, the Class B Notes, the Class C
Notes, the Class D Notes, the Class E Notes and the Class F
Notes that the Class G Notes and the Issuer’s rights in and to the Collateral
(with respect to the Class A Notes, the Class B Notes, the Class C
Notes, the Class D Notes, the Class E Notes and the Class F
Notes, the Subordinate Interests) shall
be subordinate and junior to the Class A Notes, the Class B Notes,
the Class C Notes, the Class D Notes, the Class E Notes and the Class F
Notes to the extent and in the manner set forth in this Indenture including as
set forth in Section 11.1(a) and hereinafter provided.  If any Event of Default (including an Event
of Default specified in Section 5.1(g) or (h)) has occurred and has
not been cured or waived the Class A Notes, the Class B Notes, the Class C
Notes, the Class D Notes, the Class E Notes and the Class F
Notes shall be paid in full in Cash or, to the extent a Majority of each of Class A
Notes, the Class B Notes, the Class C Notes, the Class D Notes,
the Class E Notes and the Class F Notes consent, other than in Cash,
before any further payment or distribution is made on account of the
Subordinate Interests.  The Holders of
Rated Notes evidencing Subordinate Interests and the holders of equity in the
Issuer and the Co-Issuer agree, for the benefit of the Holders of the Class A
Notes, the Class B Notes, the Class C Notes, the Class D Notes,
the Class E Notes and the Class F Notes, not to cause the filing of a
petition in bankruptcy against the Issuer or the Co-Issuer for failure to pay
to them amounts due under the Rated Notes evidencing such Subordinate Interests
or hereunder until the payment in full of the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes, the Class E Notes
and the Class F Notes and not before one year and one day has elapsed
since such payment or, if longer, the applicable preference period then in
effect, including any period established pursuant to the laws of the Cayman
Islands.


 


13.2.                      STANDARD OF CONDUCT


 


In exercising any of its or their voting rights,
rights to direct and consent or any other rights as a Secured Party under this
Indenture, subject to the terms and conditions of this Indenture, including Section 5.9,
a Secured Party or Secured Parties shall not have any obligation or duty to any
Person or to consider or take into account the interests of any Person and
shall not be liable to any Person for any 


 


159

















 


action taken by it or
them or at its or their direction or any failure by it or them to act or to
direct that an action be taken, without regard to whether such action or
inaction benefits or adversely affects any Secured Party, the Issuer, or any
other Person.


 


ARTICLE XIV




MISCELLANEOUS


 


14.1.                      FORM OF DOCUMENTS DELIVERED
TO 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, the Co-Issuer or the Collateral Manager may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Authorized 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 of the Issuer, the Co-Issuer or the Collateral Manager or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an Authorized Officer of
the Issuer, the Co-Issuer, the Collateral Manager or any other Person, stating
that the information with respect to such factual matters is in the possession
of the Issuer, the Co-Issuer, the Collateral Manager or such other Person,
unless such Authorized Officer of the Issuer, the Co-Issuer or the Collateral
Manager or such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.  Any Opinion of Counsel may also be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an Authorized Officer of the Issuer, the Co-Issuer or the
Collateral Manager, stating that the information with respect to such matters
is in the possession of the Issuer, the Co-Issuer or the Collateral Manager,
unless such counsel knows that the certificate or opinion or representations
with respect to such matters are erroneous.


 


Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.


 


Whenever in this Indenture it is provided that the absence
of the occurrence and continuation of a Default is a condition precedent to the
taking of any action by the Trustee at the request or direction of the Issuer
or the Co-Issuer, then notwithstanding that the satisfaction of such condition
is a condition precedent to the Co-Issuers’ rights to make such request or
direction, the Trustee shall be protected in acting in accordance with such
request or direction if it does not have actual knowledge of the occurrence and
continuation of such Default as provided in Section 6.1(d).


 


14.2.                      ACTS OF RATED NOTEHOLDERS


 


(a)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Rated Noteholders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Rated Noteholders in person or by an agent duly
appointed in writing; and, except as 


 


160

















 


herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Issuer.  Such instrument or instruments (and the
action or actions embodied therein and evidenced thereby) are herein sometimes
referred to as the Act of the Rated 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 conclusive
in favor of the Trustee and the Co-Issuers, if made in the manner provided in
this Section 14.2.


 


(b)                                 The
fact and date of the execution by any Person of any such instrument or writing
may be proved in any manner which the Trustee deems sufficient.


 


(c)                                  The
principal amount and registered numbers of Rated Notes held by any Person, and
the date of his holding the same, shall be proved by the Note Register.


 


(d)                                 Any
request, demand, authorization, direction, notice, consent, waiver or other
action by the Holder of any Rated Notes shall bind the Holder (and any
transferee thereof) of such Rated Note and of every Rated Note issued upon
the registration thereof or in exchange therefor or in lieu thereof, in respect
of anything done, omitted or suffered to be done by the Trustee or the
Co-Issuers in reliance thereon, whether or not notation of such action is made
upon such Rated Note.


 


14.3.                      NOTICES, ETC., TO TRUSTEE, THE
CO-ISSUERS AND THE RATING AGENCIES


 


Any request, demand, authorization, direction, notice,
consent, waiver or Act of Rated Noteholders or other documents provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with:


 


(a)                                  the
Trustee or the PAA Issued Note Paying Agent by any Rated Noteholder or by the
Issuer or the Co-Issuer shall be sufficient for every purpose hereunder if in
writing and sent by facsimile in legible form and confirmed by overnight
courier service guaranteed next day delivery to the Trustee or the PAA Issued
Note Paying Agent addressed to it at 9062 Old Annapolis Road, Columbia,
Maryland 21045, Attn:  CDO Trust
Services—N-Star REL CDO IV, telephone number 410-884-2000, fax number
410-715-3748 or at any other address previously furnished in writing to the
Co-Issuers or Rated Noteholder by the Trustee or PAA Issued Note Paying Agent;


 


(b)                                 the
Issuer by the Trustee or by any Rated Noteholder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, hand delivered, sent by
overnight courier service or by facsimile in legible form, to the Issuer
addressed to it at c/o Walkers SPV Limited, P.O. Box 908 GT, Walker House,
Mary Street, George Town, Grand Cayman, Cayman Islands, Attention:  The Directors, or at any other address
previously furnished in writing to the Trustee by the Issuer;


 


(c)                                  the
Co-Issuer by the Trustee or by any Rated Noteholder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, hand delivered, sent by
overnight courier service or by facsimile in legible form, to the Co-Issuer
addressed to it at c/o Puglisi & Associates, 850 Library Avenue, Suite 204,
Newark, Delaware 19711, Attention: 
Donald Puglisi, Esq., 


 


161

















 


facsimile no. 302-738-7210, or at any other address
previously furnished in writing to the Trustee by the Co-Issuer; or


 


(d)                                 the
Rating Agencies by the Co-Issuers or the Trustee shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, hand delivered, sent by
overnight courier service or by facsimile in legible form, (i) in the case
of Moody’s, addressed to Moody’s Investors Service, Inc., 99 Church
Street, New York, New York 10007 facsimile no. (212) 553-7820, Attention:
Northstar REL CDO IV CBO CLO Monitoring (e-mail:  cdomonitoring@moody’s.com); and (ii) in
the case of S&P, addressed to S&P, 55 Water Street, 41st Floor, New
York, New York, 10041, Attention:  CDO
Surveillance and all Note Valuation Reports shall be sent to S&P
electronically at cdo_surveillance@sandp.com;


 


(e)                                  the
Collateral Manager by the Co-Issuers or by the Trustee or a Majority of the
Controlling Class, or by the Collateral Administrator shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and sent by facsimile in legible form and confirmed by overnight
courier service guaranteed next day delivery, or by electronic mail (where
expressly provided herein) to the Collateral Manager addressed to it at the
address specified in the Collateral Management Agreement or at any other
address previously furnished in writing to the Co-Issuers or the Trustee by the
Collateral Manager;


 


(f)                                    the
PAA Issued Note Paying Agent by the Trustee in writing sent by facsimile
confirmed by overnight courier guaranteed next day delivery;


 


(g)                                 Deutsche
Bank by the Co-Issuers, the Collateral Manager or the Trustee shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, hand
delivered, sent by overnight courier service or by telecopy in legible form, to
Deutsche Bank addressed to Deutsche Bank Securities Inc., 60 Wall Street,
telecopy no. (212) 797-4461, Attention: 
Emile Van den Bol; and


 


(h)                                 to
the Repository by the Issuer pursuant to this Indenture shall be made available
to the Repository by electronic mail as a pdf (portable document format) file
to CDO Library, c/o The Bond Market Association, 360 Madison Avenue (18th
Floor), New York, NY 10017; Electronic mail address:  admin@cdolibrary.com.


 


Delivery of any request, demand, authorization,
direction, notice, consent, waiver or Act of Rated Noteholders or other
documents made as provided above will be deemed effective:  (i) if in writing and delivered in
person or by overnight courier service, on the date it is delivered; (ii) if
sent by facsimile transmission, on the date that transmission is received by
the recipient in legible form (as evidenced by the sender’s written record of a
telephone call to the recipient in which the recipient acknowledged receipt of
such facsimile transmission); and (iii) if sent by mail, on the date that
mail is delivered or its delivery is attempted; in each case, unless the date
of that delivery (or attempted delivery) or that receipt, as applicable, is not
a Business Day or that communication is delivered (or attempted) or
received, as applicable, after the close of business on a Business Day, in
which case that communication shall be deemed given and effective on the first
following day that is a Business Day.


 


162

















 


14.4.                      NOTICES AND REPORTS TO RATED NOTEHOLDERS;
WAIVER


 


Except as otherwise expressly provided herein, where
this Indenture provides for a report to Holders or for a notice to Holders of
Rated Notes of any event, such notice shall be sufficiently given to Holders of
Rated Notes if in writing and mailed, first-class postage prepaid, to each
Holder of a Rated Note affected by such event, at the address of such Holder as
it appears in the Note Register, not earlier than the earliest date and not
later than the latest date, prescribed for the giving of such report or notice
and such report or notice shall be in the English language.  Notwithstanding any provision to the contrary
contained herein or in any agreement or document related hereto, any report,
statement or other information to be provided by the Trustee may be provided by
providing access to the Trustee’s website containing such information.  Such reports and notices will be deemed to
have been given on the date of such mailing.


 


The Trustee will deliver to the Holder of any Rated
Note shown on the Note Register any readily available information or notice
requested to be so delivered, at the expense of the Issuer.  In addition, for so long as any Class of
Rated Notes is listed on the Irish Stock Exchange and so long as the rules of
such exchange so require, notices to the Holders of such Rated Notes shall also
be given by the Trustee to the Irish Paying Agent for delivery to the Company
Announcements Office of the Irish Stock Exchange.


 


Neither the failure to mail any notice, nor any defect
in any notice so mailed, to any particular Holder of a Rated Note shall affect
the sufficiency of such notice with respect to other Holders of Rated Notes.


 


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 Rated Noteholders shall be filed with the Trustee but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.


 


In the event that, by reason of the suspension of the
regular mail service as a result of a strike, work stoppage or similar
activity, it shall be impractical to mail notice of any event to Rated
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 Trustee shall be deemed to be a sufficient giving of such
notice.


 


14.5.                      EFFECT OF HEADINGS AND TABLE OF
CONTENTS


 


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


 


14.6.                      SUCCESSORS AND ASSIGNS


 


All covenants and agreements in this Indenture by the
Co-Issuers shall bind their respective successors and assigns, whether so
expressed or not.  Written notice of any
assignment shall be promptly provided by the Issuer to the Holders of Notes of
the Controlling Class, the Initial Hedge Counterparty and each Rating Agency.


 


163














 


14.7.                      SEVERABILITY


 


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


 


14.8.                      BENEFITS OF INDENTURE


 


The Rated Noteholders, the Initial Hedge Counterparty
and each Income Noteholder is an express third-party beneficiary of this
Indenture.  Nothing in this Indenture or
in the Rated Notes, expressed or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, the Rated Noteholders, the
Initial Hedge Counterparty and each Income Noteholder, any benefit or any legal
or equitable right, remedy or claim under this Indenture.


 


14.9.                      GOVERNING LAW


 


This Indenture and each Rated Note shall be construed
in accordance with, and this Indenture and each Rated Note and all matters
arising out of or relating in any way whatsoever (whether in contract, tort or
otherwise) to this Indenture or any Rated Note shall be governed by, the
law of the State of New York.


 


14.10.                SUBMISSION TO JURISDICTION


 


The Co-Issuers hereby irrevocably submit to the
non-exclusive jurisdiction of the Supreme Court of the State of New York
sitting in Manhattan and the U.S. District Court for the Southern District of
New York, and any court of appeal therefrom, in any action or proceeding
arising out of or relating to the Rated Notes or this Indenture, and the
Co-Issuers hereby irrevocably agree that all claims in respect of such action
or proceeding may be heard and determined in such New York State or federal
court.  The Co-Issuers hereby irrevocably
waive, to the fullest extent that they may legally do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding.  The Co-Issuers hereby irrevocably appoint and
designate CT Corporation, 111 Eighth Avenue, 13th Floor, New York, New York 10011, or any other
Person having and maintaining a place of business in the State of New York whom
the Co-Issuers may from time to time hereafter designate as the true and lawful
attorney and duly authorized agent for acceptance of service of legal process
of the Co-Issuers.  The Co-Issuers agree
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.


 


14.11.                COUNTERPARTS


 


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


 


14.12.                WAIVER OF JURY TRIAL


 


EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY PROCEEDING.  Each party
hereby (i) certifies that no representative, agent or attorney of the
other has represented, expressly or otherwise, that the other would not, in the
event of a Proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it has been induced to enter into this Indenture by, among other things,
the mutual waivers and certifications in this paragraph.


 


164

















 


14.13.                JUDGMENT CURRENCY


 


This is an international financing transaction in
which the specification of Dollars (the Specified Currency),
and the specification of the place of payment, as the case may be (the Specified Place), is of the essence,
and the Specified Currency shall be the currency of account in all events
relating to payments of or on the Rated Notes. 
The payment obligations of the Co-Issuers under this Indenture and the
Rated Notes shall not be discharged by an amount paid in another currency or in
another place, whether pursuant to a judgment or otherwise, to the extent that
the amount so paid on conversion to the Specified Currency and transfer to the
Specified Place under normal banking procedures does not yield the amount of
the Specified Currency at the Specified Place. 
If for the purpose of obtaining judgment in any court it is necessary to
convert a sum due hereunder or the Rated Notes in the Specified Currency into
another currency (the Second Currency),
the rate of exchange which shall be applied shall be that at which in
accordance with normal banking procedures the Trustee could purchase the
Specified Currency with the Second Currency on the Business Day next preceding
that on which such judgment is rendered. 
The obligation of the Co-Issuers in respect of any such sum due from the
Co-Issuers hereunder shall, notwithstanding the rate of exchange actually
applied in rendering such judgment, be discharged only to the extent that on
the Business Day following receipt by the Trustee of any sum adjudged to be due
hereunder or under the Rated Notes in the Second Currency the Trustee may in
accordance with normal banking procedures purchase and transfer to the
Specified Place the Specified Currency with the amount of the Second Currency
so adjudged to be due; and the Co-Issuers hereby, as a separate obligation and notwithstanding
any such judgment (but subject to the Priority of Payments as if such separate
obligation in respect of each Class of Rated Notes constituted additional
principal owing in respect of such Class of Rated Notes), agree to
indemnify the Trustee and each Rated Noteholder against, and to pay the Trustee
or such Rated Noteholder, as the case may be, on demand in the Specified
Currency, any difference between the sum originally due to the Trustee or such
Rated Noteholder, as the case may be, in the Specified Currency and the amount
of the Specified Currency so purchased and transferred.


 


14.14.                CONFIDENTIAL TREATMENT OF
DOCUMENTS


 


Except as otherwise provided in this Indenture or as
required by law or as required to maintain the listing of the Class A
Notes, Class B Notes, the Class C Notes, the Class D Notes, the Class E
Notes, the Class F Notes and the Class G Notes on the Irish Stock
Exchange, this Indenture and any Hedge Agreement shall be treated by the
Trustee and the Collateral Manager as confidential.  The Trustee shall provide a copy of this
Indenture to the PAA Issued Note Paying Agent and to any Holder of a beneficial
interest in any Rated Note upon written request therefor certifying that it is
such a Holder.


 


ARTICLE XV


 


Assignment of Agreements, Etc.


 


15.1.                      ASSIGNMENT


 


The Issuer, in furtherance of the covenants of this
Indenture and as security for the Rated Notes and amounts payable to the Rated
Noteholders hereunder and the performance and observance of the provisions
hereof, hereby assigns, transfers, conveys and sets over to the Trustee, for
the benefit of the Secured Parties, all of the Issuer’s estate, right, title
and interest in, to and under the Corporate Services Agreement, the Collateral
Management Agreement, the Asset Transfer Agreement and any Hedge Agreement into
which the Issuer may enter, including (i) the right to give all notices,
consents and releases thereunder, (ii) the right to give all notices of
termination, including the commencement, conduct and consummation of proceedings
at law or in equity, (iii) the right to receive all notices, accountings,
consents, releases and statements thereunder and (iv) the right to do any
and all other things whatsoever 


 


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that the Issuer is or may
be entitled to do thereunder; provided that
nothing herein shall obligate the Trustee to determine independently whether “cause”
exists for the removal of the Collateral Manager pursuant to the Collateral
Management Agreement.  For the avoidance
of doubt, in no event shall the Trustee be required to perform the obligations
of the Collateral Manager under the Collateral Management Agreement.


 


15.2.                      NO IMPAIRMENT


 


The assignment made hereby is executed as collateral
security, and the execution and delivery hereby shall not in any way impair or
diminish the obligations of the Issuer under the provisions of the Corporate
Services Agreement or, the Collateral Management Agreement.


 


15.3.                      TERMINATION, ETC.


 


Upon the redemption and cancellation of the Rated
Notes and the payment of all other Secured Obligations and the release of the
Collateral from the lien of this Indenture, this assignment and all rights
herein assigned to the Trustee for the benefit of the Secured Parties shall
cease and terminate and all the estate, right, title and interest of the
Trustee in, to and under the Corporate Services Agreement and the Collateral
Management Agreement shall revert to the Issuer and no further instrument or
act shall be necessary to evidence such termination and reversion.


 


15.4.                      ISSUER AGREEMENTS, ETC


 


The Issuer represents that it has not executed any
other assignment of the Collateral Administration Agreement or the Collateral
Management Agreement.  The Issuer agrees
that this assignment is irrevocable, and that it will not take any action which
is inconsistent with this assignment or make any other assignment inconsistent
herewith.  The Issuer will, from time to
time upon the request of the Trustee, execute all instruments of further
assurance and all such supplemental instruments with respect to this assignment
as the Trustee may reasonably specify.


 


ARTICLE XVI


 


HEDGE AGREEMENTS


 


16.1.                      HEDGE AGREEMENTS


 


(a)                                  The
Issuer may, after the Closing Date, enter into one or more Hedge Agreements
(including one or more Deemed Floating Asset Hedges) with Hedge Counterparties
as the Issuer may elect in its sole discretion, in each case (i) subject
to Rating Agency Confirmation and (ii)  with the delivery to the Issuer of
an Opinion of Counsel to the Hedge Counterparty; provided that  the Issuer will not be required to obtain Rating Agency
Confirmation in connection with entering into any Hedge Agreements (including,
without limitation, any Deemed Floating Asset Hedges) which are Form-Approved
Hedge Agreements with a Hedge Counterparty that satisfies the Hedge
Counterparty Ratings Requirement.


 


(b)                                 The
Issuer shall assign such Hedge Agreement to the Trustee pursuant to Article 15
hereof.


 


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(c)                                  The
Trustee shall, on behalf of the Issuer and in accordance with the Note
Valuation Report, pay amounts due to any Hedge Counterparty under any Hedge
Agreement on any Payment Date in accordance with Section 11.1.


 


(d)                                 Upon
the entry of the Issuer into a Hedge Agreement, the Trustee shall cause the
Custodian to establish a segregated, non-interest bearing Securities Account
which shall be designated as a “Hedge Counterparty Collateral Account” with
respect to the Hedge Counterparty in respect of which the Trustee shall be the
Entitlement Holder and which the Trustee shall hold in trust for the benefit of
the Secured Parties.  The Trustee shall
deposit all collateral received from such Hedge Counterparty under the related
Hedge Agreement in such Hedge Counterparty Collateral Account.  Any and all funds at any time on deposit in,
or otherwise standing to the credit of, each Hedge Counterparty Collateral
Account shall be held in trust by the Trustee for the benefit of the Secured
Parties.  The only permitted withdrawal
from or application of funds on deposit in, or otherwise standing to the credit
of, each Hedge Counterparty Collateral Account shall be (i) for
application to obligations of the related Hedge Counterparty to the Issuer
under the Hedge Agreement that are not paid when due (whether when scheduled or
upon early termination) or (ii) to return collateral to the related Hedge
Counterparty when and as required by the related Hedge Agreement in each case
upon the direction of the Issuer pursuant to an Issuer Order.  No assets credited to any Hedge Counterparty
Collateral Account shall be considered an asset of the Issuer for purposes of
any of the Coverage Tests unless and until the Issuer or the Trustee on its
behalf is entitled to foreclose on such assets in accordance with the terms of
the Hedge Agreement.


 


(e)                                  Upon
its receipt of notice that the Hedge Counterparty has defaulted in the payment
when due of its obligations to the Issuer under any Hedge Agreement (or, if
earlier, when the Trustee becomes aware of such default) the Trustee shall make
a demand on such Hedge Counterparty, or any guarantor, if applicable, demanding
payment forthwith.  The Trustee shall
give notice to the Rated Noteholders and each Rating Agency upon the
continuance of the failure by such Hedge Counterparty to perform its
obligations for two Business Days following a demand made by the Trustee on
such Hedge Counterparty.


 


(f)                                    If
at any time any Hedge Agreement becomes subject to early termination due to the
occurrence of an “event of default” or a “termination event” (each as defined
in the related Hedge Agreement) solely attributable to the related Hedge
Counterparty or other comparable event, the Issuer and the Trustee shall take
such actions (following the expiration of any applicable grace period) to
enforce the rights of the Issuer and the Trustee thereunder as may be permitted
by the terms of such Hedge Agreement and consistent with the terms hereof, and
shall apply any proceeds of any such actions (including the proceeds of the
liquidation of any collateral pledged by the related Hedge Counterparty) to
enter into a replacement Hedge Agreement on substantially identical terms or on
such other terms as to which each Rating Agency shall have provided a Rating
Agency Confirmation with a substitute Hedge Counterparty with respect to which
the Hedge Counterparty Ratings Requirement is satisfied and each Rating Agency
shall have provided a Rating Agency Confirmation.  If the Issuer is the sole non-Affected Party
or the sole non-Defaulting Party with respect to such “event of default” or “termination
event”, the Issuer will (with the assistance of the Collateral Manager) obtain
quotations with respect to such replacement Hedge Agreement from five
prospective counterparties Independent from the Issuer, the Collateral Manager
and each other that satisfy the Hedge Counterparty Ratings Requirement and with
respect to which a Rating Agency Confirmation shall have been obtained and
enter into a replacement Hedge 


 


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Agreement with the prospective counterparty that provides the lowest
quotation (if the Issuer is required to make a payment to such replacement
counterparty) or the highest quotation (if such replacement counterparty is
required to make a payment to the Issuer).


 


(g)                                 The
Issuer shall notify each Rating Agency if at any time any Hedge Counterparty is
required to post collateral or assign its rights and obligations in and under
the related Hedge Agreement.


 


(h)                                 No
Hedge Agreement may be amended or modified at any time other than to effect the
appointment of a substitute Hedge Counterparty or to effect a modification
which is of a formal, minor or technical nature or is to correct a manifest
error and which, in the opinion of the Trustee (based upon an Opinion of Counsel)
would not have a material adverse effect on the interests of Holders of the
Rated Notes or of Holders of any Class or Classes of Rated Notes or the
Holders of the Income Notes unless the Issuer has obtained Rating Agency
Confirmation with respect to such amendment or modification.  The Trustee shall provide the Collateral
Manager and the Rating Agencies with a copy of any such amendment or
modification within 10 Business Days before effecting such modification.


 


(i)                                     The
Issuer shall enter into a Hedge Agreement only if the payments from the Hedge
Counterparty thereunder are not subject to withholding tax or if the related
Hedge Counterparty shall be required in accordance with the terms of the
related Hedge Agreement to pay additional amounts to the Issuer sufficient to
cover any withholding tax due on payments made by such Hedge Counterparty to
the Issuer under such Hedge Agreement, subject to the Issuer making customary
payee tax representations and providing customary tax documentation.  At any time at which the Issuer is not a
Qualified REIT Subsidiary, the Issuer shall not enter into any Hedge Agreement
the acquisition (including the manner of acquisition), ownership, enforcement
or disposition of which would subject the Issuer to tax on a net income basis
in any jurisdiction outside the Issuer’s jurisdiction of incorporation.


 


(j)                                     The
Issuer will not terminate any Hedge Agreement without receiving Rating Agency
Confirmation with respect to such termination.


 


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IN
WITNESS WHEREOF,
WE HAVE SET OUR HANDS AS OF THE DATE FIRST ABOVE WRITTEN.


 


	
  Executed as a
  Deed by

  
	
  N-STAR
  REL CDO IV LTD.,

  
	
  as Issuer

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Daniel R.
  Gilbert

  	
   

  
	
   

  	
  Name: Daniel R.
  Gilbert

  
	
   

  	
  Title:   Executive
  Vice President

  
	
   

  
	
   

  
	
  N-STAR
  REL CDO IV CORP.,

  
	
  as Co-Issuer

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Daniel R.
  Gilbert

  	
   

  
	
   

  	
  Name: Daniel R.
  Gilbert

  
	
   

  	
  Title:   Executive
  Vice President

  
	
   

  
	
   

  
	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
  as Trustee

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Randall S.
  Reider

  	
   

  
	
   

  	
  Name: Randall S.
  Reider

  
	
   

  	
  Title:   Vice President

  



 


169

















 


	
  CONFIRMED AND
  ACCEPTED,

  
	
  as of the date first above written:

  
	
   

  
	
  NS
  ADVISORS, LLC,

  
	
  as Advancing Agent

  
	
   

  
	
   

  
	
  By:

  	
  /s/ Daniel R.
  Gilbert

  	
   

  
	
  Name:

  	
  Daniel R.
  Gilbert

  
	
  Title:

  	
  Managing
  Director

  



 


170