exv4w18



 





Exhibit 4.18




EXECUTION COPY




 





INDENTURE




BY AND BETWEEN




CAPITALSOURCE COMMERCIAL LOAN TRUST 2007-1,




AS THE ISSUER,




AND




WELLS FARGO BANK, NATIONAL ASSOCIATION,




NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY IN ITS CAPACITY




AS THE INDENTURE TRUSTEE




DATED AS OF APRIL 12, 2007




 





CapitalSource Commercial Loan Trust 2007-1 Asset Backed Notes

Class A, Class B, Class C, Class D, Class E and Class F Notes




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	2	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	2	 
	Section 1.02. Rules of Construction
	 	 	8	 
	 
	 	 	 	 
	ARTICLE II THE NOTES
	 	 	8	 
	 
	 	 	 	 
	Section 2.01. Form
	 	 	8	 
	Section 2.02. Execution, Authentication and Delivery
	 	 	9	 
	Section 2.03. Opinions of Counsel
	 	 	9	 
	 
	 	 	 	 
	ARTICLE III COVENANTS
	 	 	10	 
	 
	 	 	 	 
	Section 3.01. Collection of Payments on Loans; Trust Accounts
	 	 	10	 
	Section 3.02. Maintenance of Office or Agency
	 	 	10	 
	Section 3.03. Money for Payments To Be Held in Trust; Paying Agent
	 	 	10	 
	Section 3.04. Existence; Separate Legal Existence
	 	 	12	 
	Section 3.05. Payment of Principal and Interest
	 	 	13	 
	Section 3.06. Protection of Indenture Collateral
	 	 	13	 
	Section 3.07. Opinions as to Indenture Collateral
	 	 	14	 
	Section 3.08. Furnishing of Rule 144A Information
	 	 	15	 
	Section 3.09. Performance of Obligations; Sale and Servicing Agreement
	 	 	15	 
	Section 3.10. Negative Covenants
	 	 	16	 
	Section 3.11. Annual Statement as to Compliance
	 	 	16	 
	Section 3.12. [Reserved]
	 	 	17	 
	Section 3.13. Representations and Warranties Concerning the Loans
	 	 	17	 
	Section 3.14. Indenture Trustee’s Review of Loan Files
	 	 	17	 
	Section 3.15. Indenture Collateral; Related Documents
	 	 	17	 
	Section 3.16. Amendments to Sale and Servicing Agreement
	 	 	18	 
	Section 3.17. Servicer as Agent and Bailee of Indenture Trustee
	 	 	18	 
	Section 3.18. Investment Company Act
	 	 	18	 
	Section 3.19. Issuer May Consolidate, etc., Only on Certain Terms
	 	 	18	 
	Section 3.20. Successor or Transferee
	 	 	20	 
	Section 3.21. No Other Business
	 	 	20	 
	Section 3.22. No Borrowing
	 	 	20	 
	Section 3.23. Guarantees, Loans, Advances and Other Liabilities
	 	 	20	 
	Section 3.24. Capital Expenditures
	 	 	21	 
	Section 3.25. Representations and Warranties of the Issuer
	 	 	21	 
	Section 3.26. Restricted Payments
	 	 	23	 
	Section 3.27. Notice of Events of Default
	 	 	23	 
	Section 3.28. Further Instruments and Acts
	 	 	24	 
	Section 3.29. Statements to Noteholders
	 	 	24	 
	Section 3.30. Grant of Substitute Loans
	 	 	24	 
	Section 3.31. Determination of LIBOR; Note Interest Rate; Interest Distributable
	 	 	24	 






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TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	Section 3.32. [Reserved]
	 	 	25	 
	Section 3.33. Payments from Obligor Lock–Boxes and Obligor Lock–Box Accounts
	 	 	25	 
	Section 3.34. Maintenance of Listing
	 	 	25	 
	 
	 	 	 	 
	ARTICLE IV THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	25	 
	 
	 	 	 	 
	Section 4.01. The Notes
	 	 	25	 
	Section 4.02. Registration of Transfer and Exchange of Notes
	 	 	26	 
	Section 4.03. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	36	 
	Section 4.04. Payment of Principal and Interest; Defaulted Interest
	 	 	36	 
	Section 4.05. Tax Treatment
	 	 	37	 
	Section 4.06. Satisfaction and Discharge of Indenture
	 	 	38	 
	Section 4.07. Application of Trust Money
	 	 	39	 
	Section 4.08. Repayment of Moneys Held by Paying Agent
	 	 	39	 
	 
	 	 	 	 
	ARTICLE V EVENTS OF DEFAULT; REMEDIES
	 	 	39	 
	 
	 	 	 	 
	Section 5.01. Events of Default
	 	 	39	 
	Section 5.02. Acceleration of Maturity; Rescission and Annulment
	 	 	41	 
	Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee
	 	 	42	 
	Section 5.04. Remedies; Priorities
	 	 	44	 
	Section 5.05. Optional Preservation of the Indenture Collateral
	 	 	45	 
	Section 5.06. Limitation of Suits
	 	 	45	 
	Section 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest
	 	 	46	 
	Section 5.08. Restoration of Rights and Remedies
	 	 	47	 
	Section 5.09. Rights and Remedies Cumulative
	 	 	47	 
	Section 5.10. Delay or Omission Not a Waiver
	 	 	47	 
	Section 5.11. Control by Noteholders
	 	 	47	 
	Section 5.12. Waiver of Past Defaults
	 	 	48	 
	Section 5.13. Undertaking for Costs
	 	 	48	 
	Section 5.14. Waiver of Stay or Extension Laws
	 	 	48	 
	Section 5.15. Sale of Indenture Collateral
	 	 	49	 
	Section 5.16. Action on Notes
	 	 	50	 
	Section 5.17. Performance and Enforcement of Certain Obligations
	 	 	50	 
	 
	 	 	 	 
	ARTICLE VI THE INDENTURE TRUSTEE
	 	 	51	 
	 
	 	 	 	 
	Section 6.01. Duties of Indenture Trustee
	 	 	51	 
	Section 6.02. Rights of Indenture Trustee
	 	 	52	 
	Section 6.03. Individual Rights of Indenture Trustee
	 	 	53	 
	Section 6.04. Indenture Trustee’s Disclaimer
	 	 	53	 






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TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	Section 6.05. Notice of Event of Default
	 	 	53	 
	Section 6.06. Reports by Indenture Trustee to Holders and S&P
	 	 	53	 
	Section 6.07. Compensation and Indemnity
	 	 	54	 
	Section 6.08. Replacement of Indenture Trustee
	 	 	55	 
	Section 6.09. Successor Indenture Trustee by Merger
	 	 	56	 
	Section 6.10. Appointment of Co–Indenture Trustee or Separate Indenture Trustee
	 	 	57	 
	Section 6.11. Eligibility; Disqualification
	 	 	58	 
	Section 6.12. Representations, Warranties and Covenants of Indenture Trustee
	 	 	58	 
	Section 6.13. Directions to Indenture Trustee
	 	 	59	 
	Section 6.14. Conflicts
	 	 	60	 
	 
	 	 	 	 
	ARTICLE VII NOTEHOLDERS’ LISTS AND REPORTS
	 	 	60	 
	 
	 	 	 	 
	Section 7.01. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders
	 	 	60	 
	Section 7.02. Preservation of Information; Communications to Noteholders
	 	 	60	 
	Section 7.03. Fiscal Year
	 	 	60	 
	Section 7.04. Reports to Irish Stock Exchange, Etc
	 	 	61	 
	 
	 	 	 	 
	ARTICLE VIII TRUST ACCOUNTS, DISBURSEMENTS AND RELEASES
	 	 	61	 
	 
	 	 	 	 
	Section 8.01. Collection of Money
	 	 	61	 
	Section 8.02. Trust Accounts
	 	 	61	 
	Section 8.03. Opinion of Counsel
	 	 	62	 
	Section 8.04. Termination Upon Distribution to Noteholders
	 	 	62	 
	Section 8.05. Release of Indenture Collateral
	 	 	62	 
	Section 8.06. Surrender of Notes Upon Final Payment
	 	 	63	 
	 
	 	 	 	 
	ARTICLE IX SUPPLEMENTAL INDENTURES
	 	 	63	 
	 
	 	 	 	 
	Section 9.01. Supplemental Indentures Without Consent of Noteholders
	 	 	63	 
	Section 9.02. Supplemental Indentures With Consent of Noteholders
	 	 	64	 
	Section 9.03. Execution of Supplemental Indentures
	 	 	66	 
	Section 9.04. Effect of Supplemental Indenture
	 	 	66	 
	Section 9.05. Reference in Notes to Supplemental Indentures
	 	 	66	 
	 
	 	 	 	 
	ARTICLE X OPTIONAL REPURCHASE OF NOTES
	 	 	67	 
	 
	 	 	 	 
	Section 10.01. Optional Repurchase
	 	 	67	 
	Section 10.02. Notes Payable on Repurchase Date
	 	 	67	 
	Section 10.03. [Reserved]
	 	 	68	 
	Section 10.04. [Reserved]
	 	 	68	 
	Section 10.05. Form of Repurchase Notice by Indenture Trustee
	 	 	68	 






-iii-









 





TABLE OF CONTENTS
(continued)





	 	 	 	 	 
	 	 	Page	 
	 
	ARTICLE XI MISCELLANEOUS
	 	 	68	 
	 
	 	 	 	 
	Section 11.01. Compliance Certificates and Opinions, etc
	 	 	68	 
	Section 11.02. Form of Documents Delivered to Indenture Trustee
	 	 	70	 
	Section 11.03. Acts of Noteholders
	 	 	70	 
	Section 11.04. Notices, etc., to Indenture Trustee and Others
	 	 	71	 
	Section 11.05. Notices to Noteholders; Waiver
	 	 	72	 
	Section 11.06. Alternate Payment and Notice Provisions
	 	 	72	 
	Section 11.07. Effect of Headings
	 	 	72	 
	Section 11.08. Successors and Assigns
	 	 	73	 
	Section 11.09. Severability
	 	 	73	 
	Section 11.10. Benefits of Indenture
	 	 	73	 
	Section 11.11. Legal Holidays
	 	 	73	 
	Section 11.12. GOVERNING LAW
	 	 	73	 
	Section 11.13. Counterparts
	 	 	74	 
	Section 11.14. Issuer Obligation
	 	 	74	 
	Section 11.15. No Petition, Limited Recourse
	 	 	74	 
	Section 11.16. Inspection; Confidentiality
	 	 	75	 
	Section 11.17. Limitation of Liability
	 	 	75	 
	Section 11.18. Disclaimer and Subordination
	 	 	75	 






EXHIBITS




	 	 	 	 	 
	Exhibit A–1

	 	—
	 	Form of Class A Note
	Exhibit A–2

	 	—
	 	Form of Class B Note
	Exhibit A–3

	 	—
	 	Form of Class C Note
	Exhibit A–4

	 	—
	 	Form of Class D Note
	Exhibit A–5

	 	—
	 	Form of Class E Note
	Exhibit A–6

	 	—
	 	Form of Class F Note
	Exhibit B

	 	—
	 	List of Loans
	Exhibit C

	 	—
	 	Form of Wiring Instructions
	Exhibit D–1

	 	—
	 	Form of Transferee Letter [Non–Rule 144A]
	Exhibit D–2

	 	—
	 	Form of Rule 144A Certification
	Exhibit E

	 	—
	 	Form of Transfer Certificate for Rule 144A Global
Note to Regulation S Global Note during Distribution
Compliance Period
	Exhibit F

	 	—
	 	Form of Transfer Certificate for Rule 144A Global
Note to Regulation S Global Note after Distribution
Compliance Period
	Exhibit G

	 	—
	 	Form of Transfer Certificate for Regulation S Global
Note to Rule 144A Global Note during Distribution
Compliance Period
	Exhibit H

	 	—
	 	Form of Transfer Certificate for Regulation S Global
Note during Distribution Compliance Period






-iv-









 






INDENTURE




     THIS INDENTURE, dated as of April 12, 2007 (as amended, modified, restated, supplemented or
waived from time to time, the “Indenture”), is by and between CAPITALSOURCE COMMERCIAL LOAN
TRUST 2007-1, a Delaware statutory trust, as the issuer (together with its successors and assigns
in such capacity, the “Issuer”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely in its capacity as the indenture trustee (together with its
successors and assigns, in such capacity, the “Indenture Trustee”).



     Each party hereto agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the Holders of the Issuer’s Notes.



GRANTING CLAUSE




     The Issuer hereby Grants to the Indenture Trustee, on behalf of and for the benefit of the
Holders of the Notes, without recourse, subject to the terms of this Indenture and the other
Transaction Documents, a continuing security interest in and lien on all of its right, title and
interest in and to all accounts, cash and currency, chattel paper, electronic chattel paper,
tangible chattel paper, copyrights, copyright licenses, equipment, fixtures, general intangibles,
instruments, commercial tort claims, deposit accounts, inventory, investment property, letter of
credit rights, software, supporting obligations, accessions, and other rights or property
consisting of, arising out of, or related to (i) the Loans and all other assets included or to be
included from time to time in the Loan Assets, whether now existing or hereafter arising or
acquired, other than the Retained Interest, if any, as it may exist from time to time, (ii) all of
the Issuer’s right, title and interest (but none of its obligations) under the Sale and Servicing
Agreement, including but not limited to the Issuer’s right to exercise the remedies created by the
Sale and Servicing Agreement, and (iii) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments on or under and all proceeds
of every kind and nature whatsoever in respect of any or all of the foregoing, including all
proceeds of the conversion, voluntary or involuntary, into cash or other liquid property, all cash
proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and
other forms of obligations and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any of the foregoing (collectively,
the “Indenture Collateral”).



     The foregoing Grant is made in trust to secure (x) the payment of principal of and interest
on, and any other amounts owing in respect of, the Notes and all other sums owing by the Issuer
hereunder or under any other Transaction Document, and (y) to secure compliance with the covenants
and agreement in this Indenture and the other Transaction Documents.



     The Indenture Trustee, on behalf of the Noteholders (1) acknowledges such Grant, and (2)
accepts the trusts under this Indenture in accordance with this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the interests of the
Noteholders may be adequately and effectively protected.



 









 





ARTICLE I

DEFINITIONS




     Section 1.01. Definitions.



     Certain defined terms used throughout the Indenture are defined above or in this Section
1.01. In addition, except as otherwise expressly provided herein or unless the context
otherwise requires, capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Sale and Servicing Agreement (as defined below), which are incorporated
by reference herein.



     “Applicable Procedures” has the meaning given to such term in Section
4.02(l)(i).



     “Authorized Newspaper” means a newspaper of general circulation in the Borough of
Manhattan, The City of New York, printed in the English language and customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays.



     “Authorized Officer” means, (i) with respect to any Person, any person who is
authorized to act for such Person in matters relating to the Transaction Documents and whose action
is binding upon such Person, (ii) with respect to the Issuer, any officer of the Owner Trustee who
is authorized to act for the Owner Trustee in matters relating to the Issuer, (iii) with respect to
the Trust Depositor or the Servicer, initially those individuals the names of whom appear on the
lists of Authorized Officers delivered on the Closing Date (as such list may be modified or
supplemented from time to time thereafter), and (iv) with respect to the Indenture Trustee, the
Chairman or Vice President of the Board of Directors or Trustees, the Chairman or Vice Chairman of
the Executive or Standing Committee of the Board of Directors or Trustees, the President, the
Chairman of the Committee on Trust Matters, any vice president, any assistant vice president, the
Secretary, any assistant secretary, the Treasurer, any assistant treasurer, the Cashier, any
assistant cashier, any trust officer, the Controller and any assistant controller or any other
officer of the Indenture Trustee customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer’s knowledge of and familiarity with
particular subject.



     “Beneficial Owner” means, with respect to a Note, the Person who is the beneficial
owner of such Note, as reflected on the books of DTC or on the books of a Person maintaining an
account with DTC (directly or as an indirect participant, in accordance with the rules of DTC), as
the case may be.



     “CapitalSource” means CapitalSource Finance LLC, together with its successors and
assigns.



     “Clearstream” means Clearstream Banking, société anonyme, a limited liability company
organized under the laws of Luxembourg.



     “Corporate Trust Office” means in the case of Owner Trustee: Wilmington Trust
Company, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust
Administration and in the case of the Indenture Trustee: Wells Fargo Bank, National



2









 




Association,
Sixth Street and Marquette Avenue, MAC N9311–161, Minneapolis, Minnesota 55479, Attention:
Corporate Trust Services/Asset Backed Administration (CapitalSource Commercial Loan Trust 2007-1),
or at such other address as the Owner Trustee or the Indenture Trustee may designate from time to
time by notice to the Issuer, or the principal corporate trust officer of any successor Owner
Trustee or Indenture Trustee at the address designated by such successor by notice to the Issuer.




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



     “Direct Participant” means any broker–dealer, bank or other financial institution for
whom the nominee of DTC holds an interest in any Note.



     “Distribution Compliance Period” means the 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Notes are first offered to Persons other than
the Initial Purchasers and any other distributor (as such term is defined in Regulation S) of the
Notes and (b) the Closing Date.



     “DTC” means The Depository Trust Company, and its successors or assigns.



     “DTC Custodian” means the Indenture Trustee as a custodian for DTC.



     “DTC Participant” means a Person for whom, from time to time, DTC effects book-entry
transfers and pledges of securities deposited with DTC.



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, or any successor legislation thereto and the regulations promulgated and the rulings
issued thereunder.



     “Euroclear” means the Euroclear System, operated by Morgan Guaranty Trust Company of
New York, Brussels office.



     “Event of Default” has the meaning given to such term in Section 5.01.



     “Global Note” means any Note registered in the name of DTC or its nominee, beneficial
interests of which are reflected on the books of DTC or on the books of a Person maintaining any
account with DTC (directly or as an indirect participant in accordance with the rules of DTC). The
Global Note shall include the Rule 144A Global Notes and the Regulation S Global Notes.



     “Grant” means to mortgage, pledge, sell, bargain, warrant, alienate, remise, release,
convey, assign, transfer, create, and grant a lien upon and a security interest in and right of
set–off against, deposit, set over and confirm pursuant to the Indenture. A Grant of Indenture
Collateral or of any other agreement or instrument shall include all rights, powers and options
(but none of the obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal and interest
payments in respect of such collateral or other agreement or instrument and all other moneys
payable thereunder, to give and receive notices and other communications, to make waivers or other
agreements, to exercise all rights and options, to bring proceedings in the name of the granting



3









 




party or otherwise, and generally to do and receive anything that the granting party is or may be
entitled to do or receive thereunder or with respect thereto.




     “Indenture Collateral” has the meaning given to such term in the Granting
Clauses.



     “Indenture Trustee” has the meaning given to such term in the Preamble.



     “Indirect Participant” means any financial institution for whom any Direct Participant
holds an interest in any Note.



     “Individual Note” means any Note in permanent certificated form registered in the name
of a holder other than DTC or its nominee.



     “Initial Purchasers” means collectively Citigroup, JPMorgan, Banc of America
Securities, BMO Capital Markets, Credit Suisse, Deutsche Bank Securities, Morgan Stanley, SG CIB,
SunTrust and Wachovia Securities.



     “Institutional Accredited Investor” means any Person meeting the requirements of Rule
501 (a) (1) – (3) or (7) of Regulation D under the Securities Act.



     “Issuer Documents” has the meaning given to such term in Section 3.25(a).



     “Issuer Order” means a written order or request signed in the name of the Issuer by
any one of its Authorized Officers or by the Servicer on behalf of the Issuer and delivered to the
Indenture Trustee.



     “Letter of Representations” means the Letter of Representations, dated as of September
28, 2006 by and between the Issuer and DTC.



     “Note Register” has the meaning given to such term in Section 4.02(a).



     “Note Registrar” has the meaning given to such term in Section 4.02(a).



     “Other Assets” has the meaning given to such term in Section 11.18.



     “Outstanding” means as of the date of determination, all Notes theretofore executed,
authenticated and delivered under the Indenture except:



     (i) Notes in exchange for or in lieu of which other Notes have been executed, authenticated
and delivered pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a holder in due course;



     (ii) Notes to be repurchased in connection with an Optional Repurchase and in respect of which
money in the necessary amount to pay the Repurchase Price has been theretofore deposited with the
Indenture Trustee in trust for the Noteholders (provided that notice of such Optional Repurchase
has been duly given pursuant to Section 10.01 and Section 10.05); and



     (iii) Notes theretofore canceled by the Note Registrar or delivered to the Indenture Trustee
for cancellation.



4









 





     “Owner” means each Holder of a Note.



     “Owner Trustee” means Wilmington Trust Company, not in its individual capacity but
solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.



     “Participant” means a Person that has an account with DTC.



     “Paying Agent” means, with respect to the Notes, any paying agent or co–paying agent
appointed pursuant to Section 3.03 of the Indenture, which initially shall be (i) the
Indenture Trustee and (ii) with respect to the payment of principal and interest on those Class A
Notes, Class B Notes, Class C Notes and Class D Notes listed on the Irish Stock Exchange only, JP
Morgan Bank (Ireland) PLC. With respect to the Trust Certificates, any paying agent or co–paying
agent appointed pursuant to Section 3.09 of the Trust Agreement which initially shall be Wells
Fargo Bank, National Association.



     “Percentage Interest” means, (a) with respect to the Holder of Notes of any Class, the
fraction, expressed as a percentage, the numerator of which is the current aggregate Outstanding
Principal Balance represented by such Notes and the denominator of which is the then current
Outstanding Principal Balance of such Class of Notes and (b) with respect to a Trust Certificate,
the percentage set forth on the face thereof.



     “Plan” has the meaning given to such term in Section 4.02(y).



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



     “Qualified Institutional Buyer” has the meaning given to such term in Rule 144A under
the Securities Act.



     “Qualified Purchaser” has the meaning given to such term in Section 2(a)51 of the 1940
Act.



     “Regulation S” means Regulation S under the Securities Act.



     “Regulation S Global Notes” means the Notes sold in reliance on Regulation S in
offshore transactions to Qualified Purchasers who are non-U.S. Persons within the meaning of
Regulation S and represented by one or more Global Notes.



     “Regulation S Investor” means, a transferee of a Regulation S Global Note pursuant to
Regulation S who is a Qualified Person.



     “Repurchase Date” means in the case of a repurchase of the Notes pursuant to
Section 10.01 of this Indenture, the Payment Date specified by the Issuer pursuant to
Section 10.01 of this Indenture.



     “Repurchase Price” means, in the case of a repurchase of the Notes pursuant to
Section 10.01 of this Indenture, an amount equal to the sum of (i) the then Outstanding
Principal Balance of each Class of Offered Notes being repurchased plus accrued and unpaid interest
thereon to but



5









 




excluding the Repurchase Date and (ii) all other amounts accrued and unpaid with
respect to each such Class of Offered Notes.




     “Rule 144A Certification” means a letter substantially in the form attached to the
Indenture as Exhibit D–2.



     “Rule 144A Global Notes” means the Notes sold under Rule 144A to Qualified
Institutional Buyers who are Qualified Purchasers and represented by one or more Global Notes.



     “Sale” has the meaning given to such term in Section 5.15.



     “Sale and Servicing Agreement” means the Sale and Servicing Agreement, dated as of
April 12, 2007, by and among CapitalSource Commercial Loan Trust 2007-1, as the Issuer,
CapitalSource Commercial Loan LLC, 2007-1, as the Trust Depositor, CapitalSource Finance LLC, as
the Originator and as the Servicer, and Wells Fargo Bank, National Association, as the Indenture
Trustee and the Backup Servicer.



     “Securities Legend” means a legend to the following effect: “THIS NOTE HAS NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE. PROSPECTIVE INVESTORS ARE HEREBY NOTIFIED
THAT THE SELLERS OF INTERESTS IN THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER HEREOF, BY PURCHASING
THIS NOTE, AGREES THAT THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) (A) PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A “QIB”), WHO IS ALSO A
QUALIFIED PURCHASER FOR PURPOSES OF SECTION 3(c)(7) UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED (A “QUALIFIED PURCHASER”), PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QIB WHO IS ALSO A QUALIFIED PURCHASER, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (B) IN CERTIFICATED FORM TO AN
INSTITUTIONAL “ACCREDITED INVESTOR”
(WITHIN THE MEANING OF RULE 501 (a)(1)–(3) OR (7) UNDER THE SECURITIES ACT) WHO IS ALSO A
QUALIFIED PURCHASER, PURCHASING FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, IN EACH CASE, SUBJECT TO (X) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (Y) THE RECEIPT BY THE INDENTURE TRUSTEE OF
SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY
LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, (2) OTHER THAN IN THE
CASE OF THE CLASS E NOTES, TO A



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QUALIFIED PURCHASER IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO ANOTHER EXEMPTION
AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR
(4) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE OF THIS NOTE WILL BE DEEMED A
REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT IS NOT, AND IS NOT ACQUIRING OR HOLDING THIS
NOTE, DIRECTLY OR INDIRECTLY, ON BEHALF OF OR WITH ANY ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 (AS AMENDED,
“ERISA”), THAT IS SUBJECT TO TITLE I OF ERISA, OR A “PLAN” TO WHICH SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986 (AS AMENDED, THE “CODE”) APPLIES (COLLECTIVELY, A
“PLAN”), OR OTHER PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
SUBSTANTIALLY SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“SIMILAR LAW”); OR
(II)(A) IN THE CASE OF A LISTED NOTE, ITS ACQUISITION AND HOLDING OF THIS NOTE WILL NOT CONSTITUTE
OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE OR A VIOLATION OF SIMILAR LAW, AND (B) IN THE CASE OF A CLASS E NOTE OR CLASS F NOTE, IT IS A
PLAN THAT IS NOT SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE AND ITS ACQUISITION AND
HOLDING OF THE CLASS E NOTE OR CLASS F NOTE WILL NOT CONSTITUTE OR RESULT IN A VIOLATION OF SIMILAR
LAW.”




     “Series” means 2007-1.



     “Similar Law” has the meaning given to such term in Section 4.02(y).



     “Transfer” has the meaning given to such term in Section 4.02(w).



     “Transferee Letter” means the letter set forth in Exhibit D–1 to the
Indenture.



     “Trust Certificate” means a certificate evidencing the beneficial interest of a
Certificateholder in the Issuer, substantially in the form of Exhibit A attached to the
Trust Agreement.



     “Trust Company” means Wilmington Trust Company (and any successor thereto or assign
thereof), in its individual capacity, and any other Person who shall act as Owner Trustee under the
Trust Agreement, in its individual capacity.



     “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended from time to time, as in effect on any relevant date.



     “U.S. Person” means a person that is a citizen or resident of the United States, a
corporation or partnership (except as provided in applicable Treasury regulations) created or
organized in or under the laws of the United States, any State or the District of Columbia,
including any entity treated as a corporation or partnership for federal income tax purposes, an
estate whose income is subject to United States federal income tax regardless of its source, or a
trust if a court within the United States is able to exercise primary supervision over the



7









 




administration of such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided as applicable Treasury regulations,
certain trusts in existence on August 20, 1996 which are eligible to elect to be treated as a U.S.
Person).




     “USA PATRIOT Act” means the United States Uniting and Strengthening America By
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, signed into
law on and effective as of October 26, 2001, which, among other things, requires that financial
institutions, a term that includes banks, broker-dealers and investment companies, establish and
maintain compliance programs to guard against money laundering activities.



     Section 1.02. Rules of Construction.



     Unless the context otherwise requires:




     (i) a term has the meaning given to it;




     (ii) an accounting term not otherwise defined has the meaning given to it in accordance
with generally accepted accounting principles;




     (iii) “or” is not exclusive;




     (iv) “including” means including without limitation;




     (v) words in the singular include the plural and words in the plural include the
singular;




     (vi) any pronouns shall be deemed to cover all genders; and




     (vii) any agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement, instrument
or statute as from time to time amended, modified, waived or supplemented and includes (in
the case of agreements or instruments) references to all attachments
thereto and instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.



ARTICLE II

THE NOTES




     Section 2.01. Form.



     The Notes, together with the Indenture Trustee’s certificate of authentication, shall be in
substantially the forms set forth as Exhibits A–1 through A-6 to this Indenture
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may, consistently herewith, be determined by the
appropriate Authorized Officers executing such Notes, as evidenced by their execution of the Notes.
Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.



8









 





     The Notes shall be typewritten, printed, lithographed or engraved or produced by any
combination of these methods (with or without steel engraved borders), all as determined by the
Authorized Officers executing such Notes, as evidenced by their execution of such Notes.



     The terms of the Notes set forth in Exhibits A–1 through A-6 are part of the
terms of this Indenture.



     Section 2.02. Execution, Authentication and Delivery.



     The Notes shall be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or facsimile.



     Notes bearing the manual or facsimile signature of individuals who were at any time Authorized
Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.



     The Indenture Trustee shall upon receipt of an Issuer Order authenticate and deliver Class A
Notes for original issue in an aggregate amount equal to the Initial Class A Principal Balance,
Class B Notes for original issue in an aggregate amount equal to the Initial Class B Principal
Balance, Class C Notes for original issue in an aggregate amount equal to the Initial Class C
Principal Balance, Class D Notes for original issue in an aggregate amount equal to the Initial
Class D Principal Balance, Class E Notes for original issue in an aggregate amount equal to the
Initial Class E Principal Balance and Class F Notes for original issue in an aggregate amount equal
to the Initial Class F Principal Balance.



     Each Note shall be dated the date of its authentication. The Notes shall be issued as
registered Notes in the minimum initial denominations of $250,000 (provided that the Class E Notes
will be issued in minimum initial denominations of $1,000,000) and in integral multiples
of $1,000 in excess thereof; provided that one Note of each Class may be issued in a different
denomination.



     No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose, unless there appears on such Note a certificate of authentication substantially in the
form provided for herein executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the
only evidence, that such Note has been duly authenticated and delivered hereunder.



     Section 2.03. Opinions of Counsel.



     On the Closing Date, the Indenture Trustee shall have received: (i) an Opinion of Counsel,
with respect to securities law matters; (ii) an Opinion of Counsel, with respect to the tax status
of the arrangement created by this Indenture and the tax treatment of the Class A Notes, the Class
B Notes, the Class C Notes, the Class D Notes and the Class E Notes; and (iii) an Opinion of
Counsel to the Issuer, with respect to the due authorization, valid execution and delivery of this
Indenture and with respect to its binding effect on the Issuer.



9









 





ARTICLE III

COVENANTS




     Section 3.01. Collection of Payments on Loans; Trust Accounts.



     The Servicer shall establish with the Indenture Trustee and cause to be maintained each of the
Trust Accounts specified in Section 7.01 of the Sale and Servicing Agreement. The Indenture
Trustee shall ensure that each of the Trust Accounts is established and maintained as an Eligible
Deposit Account with a Qualified Institution. If any institution with which any of the Trust
Accounts established pursuant to Section 7.01(a) of the Sale and Servicing Agreement are
established ceases to be a Qualified Institution, the Servicer, or if the Servicer fails to do so,
the Indenture Trustee (as the case may be) shall within ten Business Days establish a replacement
account at a Qualified Institution after notice of such event. The Indenture Trustee shall make
all payments of principal of and interest on the Notes, subject to Section 3.03 and as
provided in Section 3.05 herein from moneys on deposit in the Note Distribution Account.



     Section 3.02. Maintenance of Office or Agency.



     The Issuer will maintain with the Indenture Trustee an office or agency where, subject to
satisfaction of conditions set forth herein, Notes may be surrendered for registration of transfer
or exchange, and where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee to serve as
its agent for the foregoing purposes. The Issuer will give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such office or agency. If at
any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Indenture Trustee, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders, notices and demands.



     Section 3.03. Money for Payments To Be Held in Trust; Paying Agent.



     The Issuer hereby appoints the Indenture Trustee as Paying Agent for the payment of principal
and interest on the Notes. As provided in Section 3.01, all payments of amounts due and
payable with respect to any Notes that are to be made from amounts withdrawn from the Note
Distribution Account pursuant to Section 3.05 shall be made on behalf of the Issuer by the
Indenture Trustee or by another Paying Agent, and no amounts so withdrawn from the Note
Distribution Account for payments of Notes shall be paid over to the Issuer except as provided in
this Section 3.03. The Issuer shall have for so long as any Notes are listed on the Irish
Stock Exchange, a Paying Agent for the payment of principal and interest on such Notes in Ireland
and where notices and demands to or upon the Issuer in respect of such Notes or this Indenture may
be served and where such securities may be surrendered for registration of transfer or exchange.
The Issuer hereby appoints Custom House Administration and Listing Services, Ltd. as Paying Agent
for the payment of principal and interest with respect to only those securities listed on the Irish
Stock Exchange.



     The Issuer may at any time and from time to time vary or terminate the appointment of any such
agent or appoint any additional agents for any or all of such purposes; provided that (A) no Paying
Agent shall be appointed in a jurisdiction that subjects payments on the Notes to



10









 




withholding tax
and (B) so long as any Notes are listed on the Irish Stock Exchange and the rules of such exchange
so require, the Issuer will maintain in Ireland a Paying Agent and an office or agency where
notices and demands to or upon the Issuer in respect of such securities and this Indenture may be
served and where such Notes may be surrendered for registration of transfer or exchange. The
Issuer shall give prompt written notice to the Indenture Trustee, the Rating Agencies and the
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.




     On or before the Business Day immediately preceding each Payment Date and the Repurchase Date,
the Issuer shall deposit or cause to be deposited in the Note Distribution Account from amounts
(except in the case of the Repurchase Date) on deposit in the Principal and Interest Account an
aggregate sum sufficient to pay the amounts then becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless the Paying Agent is the Indenture Trustee)
shall promptly notify the Indenture Trustee in writing of its action or failure so to act.



     The Issuer will cause each Paying Agent other than the Indenture Trustee to execute and
deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the
Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so agrees), subject
to the provisions of this Section 3.03, that such Paying Agent will:




     (i) hold all sums held by it for the payment of amounts due with respect to the Notes
in trust for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and pay such sums to such Persons
as herein provided;




     (ii) give the Indenture Trustee notice of any default by the Issuer in the making of
any payment required to be made with respect to the Notes;




     (iii) at any time during the continuance of any such default, upon the written request
of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust
by such Paying Agent;




     (iv) immediately resign as Paying Agent and forthwith pay to the Indenture Trustee all
sums held by it in trust for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of its appointment; and




     (v) comply with all requirements of the Code with respect to the withholding from any
payments made by it on any Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in connection therewith.



     The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the
Indenture Trustee all sums held in trust by such Paying
Agent, such sums to be held by the
Indenture Trustee upon the same trusts as those upon which the sums were held by such Paying



11









 




Agent;
and upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.




     Subject to applicable laws with respect to escheat of funds, any money held by the Indenture
Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for two years after such amount has become due and payable shall be discharged
from such trust and be paid to the Issuer on an Issuer Order; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only
to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee or
such Paying Agent with respect to such trust money shall thereupon cease; provided that the
Indenture Trustee or such Paying Agent, before being required to make any such repayment, shall at
the expense and direction of the Issuer cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at the
expense and direction of the Issuer, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to Holders whose Notes have been
called but have not been surrendered for repurchase or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying
Agent, at the last address of record for each such Holder).



     Section 3.04. Existence; Separate Legal Existence.



     (a) The Issuer will keep in full effect its existence, rights and franchises as a statutory
trust under the laws of the State of Delaware (unless it becomes, or any successor Issuer hereunder
is or becomes, organized under the laws of any other state or of the United States, in which case
the Issuer will keep in full effect its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the other Transaction Documents, the Indenture
Collateral and each other instrument or agreement included in the Indenture Collateral.



     (b) The Issuer shall:




     (i) Maintain its own deposit account or accounts, separate from those of any Affiliate,
with commercial banking institutions and in accordance with the terms of this Indenture.
The funds of the Issuer will not be diverted to any other Person or for other than
authorized uses of the Issuer.




     (ii) Ensure that it is at all times in compliance with Section 4.01 of the Trust
Agreement.




     (iii) Ensure that, to the extent that it jointly contracts with any of its members or
Affiliates to do business with vendors or service providers or to share overhead expenses,
the costs incurred in so doing shall be allocated fairly among such entities, and each such
entity shall bear its fair share of such costs. To the extent that the Issuer contracts or
does business with vendors or service providers when the goods and services



12









 







provided are
partially for the benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the goods and services are
provided, and each such entity shall bear its fair share of such costs. All material
transactions between Issuer and any of its Affiliates shall be only on an arm’s length
basis.




     (iv) Conduct its affairs strictly in accordance with its organizational documents and
observe all necessary, appropriate and customary statutory trust formalities, including, but
not limited to, holding all regular and special board of trustees meetings appropriate to
authorize all statutory trust action, keeping separate and accurate minutes of its meetings,
passing all resolutions or consents necessary to authorize actions taken or to be taken, and
maintaining accurate and separate books, records and accounts, including, but not limited
to, payroll and intercompany transaction accounts.



     Section 3.05. Payment of Principal and Interest.



     The Issuer will duly and punctually pay the principal of and interest on the Notes in
accordance with the terms of such Notes, this Indenture and the Sale and Servicing Agreement. The
Issuer will cause to be distributed all amounts on deposit in the Note Distribution Account on a
Payment Date deposited therein pursuant to the Sale and Servicing Agreement for the
benefit of the Notes, to the applicable Noteholders. Amounts properly withheld under the Code
or any applicable state law by any Person from a payment to any Noteholder of interest and/or
principal shall be considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.



     Section 3.06. Protection of Indenture Collateral.



     (a) The Issuer intends the security interest Granted pursuant to this Indenture in favor of
the Indenture Trustee on behalf of the Noteholders to be prior to all other liens in respect of the
Indenture Collateral, and the Issuer shall take or shall cause the Servicer to take all actions
necessary to obtain and maintain, for the benefit of the Indenture Trustee on behalf of the
Noteholders, a first lien on and a first priority, perfected security interest in the Indenture
Collateral. In connection therewith, pursuant to Section 2.07 of the Sale and Servicing Agreement,
the Issuer shall cause to be delivered into the possession of the Indenture Trustee as pledgee
hereunder, indorsed in blank, any “instruments” (within the meaning of the UCC), not constituting
part of chattel paper, evidencing any Loan which is part of the Indenture Collateral and all other
portions of the Loan Files. The Indenture Trustee acknowledges and agrees that (i) it holds the
Loan Assets delivered to it under the Loan Sale Agreement for the benefit of the Trust Depositor,
(ii) it holds the Loan Assets delivered to it under the Sale and Servicing Agreement for the
benefit of the Issuer, and (iii) it holds the Indenture Collateral delivered to it pursuant to this
Indenture for the benefit of the Noteholders. The Indenture Trustee agrees to maintain continuous
possession of such delivered instruments and the Loan Files as pledgee hereunder until this
Indenture shall have terminated in accordance with its terms or until, pursuant to the terms hereof
or of the Sale and Servicing Agreement, the Indenture Trustee is otherwise authorized to release
such instrument from the Indenture Collateral. The Servicer, on behalf of the Issuer, will from
time to time prepare (or shall cause to be prepared), execute and deliver all such supplements and
amendments hereto and all such financing statements,



13









 




continuation statements, instruments of
further assurance and other instruments, and will take such other action necessary or advisable to:





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




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




     (iii) enforce any of the Loans transferred to the Issuer as and to the extent
commercially reasonable and in accordance with the Sale and Servicing Agreement; or




     (iv) preserve and defend title to the Indenture Collateral and the rights of the
Indenture Trustee, the Noteholders in such Indenture Collateral against the claims of all
persons and parties.



     Except as otherwise provided in or permitted by the Sale and Servicing Agreement or this
Indenture, the Indenture Trustee shall not remove any portion of the Indenture Collateral that
consists of money or is evidenced by an instrument, certificate or other writing from the
jurisdiction in which it was held at the date of the most recent Opinion of Counsel delivered
pursuant to Section 3.07 (or from the jurisdiction in which it was held as described in the
Opinion of Counsel delivered at the Closing Date pursuant to Section 3.07(a), if no Opinion
of Counsel has yet been delivered pursuant to Section 3.07(b)) unless the Indenture Trustee
shall have first received an Opinion of Counsel to the effect that the lien and security interest
created by this Indenture with respect to such property will continue to be maintained after giving
effect to such action or actions.



     The Issuer hereby designates the Indenture Trustee its agent and attorney–in–fact to execute
any financing statement, continuation statement or other instrument required to be executed
pursuant to this Section 3.06.



     Section 3.07. Opinions as to Indenture Collateral.



     (a) On or before the Closing Date, the Issuer shall furnish to the Indenture Trustee an
Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken
with respect to the delivery of the Underlying Notes (or, in the case of Noteless Loans, a copy of
the applicable Loan Register certified by a Responsible Officer of the Servicer) and any other
requisite documents, and with respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make effective the lien and security
interest of this Indenture and reciting the details of such action, or stating that, in the opinion
of such counsel, no such action is necessary to make such lien and security interest effective.



     (b) On or before March 31 in each calendar year, beginning in 2008, the Servicer on behalf of
the Issuer will furnish to the Indenture Trustee an Opinion of Counsel at the expense of the Issuer
either stating that, in the opinion of such counsel, such action has been taken with respect to any
other requisite documents and with respect to the execution and filing of any financing statements
and continuation statements as is necessary to maintain the perfection of the lien and security
interest created by this Indenture and reciting the details of such action or



14









 




stating that in the
opinion of such counsel no such action is necessary to maintain the perfection of such lien and
security interest. Such Opinion of Counsel shall also describe any other requisite documents and
the execution and filing of any financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the lien and security interest of this Indenture
until December 31 in the following calendar year.




     Section 3.08. Furnishing of Rule 144A Information.



     The Issuer will furnish, upon the written request of any Noteholder or of any owner of a
beneficial interest therein, such information as is specified in paragraph (d)(4) of Rule 144A
under the Securities Act (i) to such Noteholder or beneficial owner, (ii) to a prospective
purchaser of such Note or interest therein who is a Qualified Institutional Buyer and a Qualified
Purchaser designated by such Noteholder or beneficial owner, or (iii) to the Indenture Trustee for
delivery to such Noteholder, beneficial owner or prospective purchaser, in order to permit
compliance by such Noteholder or beneficial owner with Rule 144A in connection with the resale of
such Note or beneficial interest therein by such Noteholder or beneficial owner in reliance on Rule
144A unless, at the time of such request, the Issuer is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, or exempt from reporting pursuant to
Rule 12g3-2(b) under the Exchange Act.



     Section 3.09. Performance of Obligations; Sale and Servicing Agreement.



     (a) The Issuer will punctually perform and observe all of its obligations and agreements
contained in this Indenture, the Transaction Documents and in the instruments and agreements
included in the Indenture Collateral.



     (b) The Issuer may contract with other Persons to assist it in performing its duties under
this Indenture, the Transaction Documents and in the instruments and agreements included in the
Indenture Collateral, and any performance of such duties by a Person identified to the Indenture
Trustee in an Officer’s Certificate of the Issuer shall be deemed to be action taken by the Issuer.
Initially, the Issuer has contracted with the Servicer to assist the Issuer in performing its
duties under this Indenture, the Transaction Documents and in the instruments and agreements
included in the Indenture Collateral.



     (c) The Issuer will not take any action or permit any action to be taken by others which would
release any Person from any of such Person’s covenants or obligations under any of the documents
relating to the Loans or under any instrument included in the Indenture Collateral, or which would
result in the amendment, hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any of the documents relating to the Loans or any such instrument,
except such actions as the Servicer is expressly permitted to take in the Transaction Documents.



     (d) If the Issuer shall have knowledge of the occurrence of a Servicer Default, the Issuer
shall promptly notify in writing the Indenture Trustee and the Rating Agencies thereof, and shall
specify in such notice the action, if any, the Issuer is taking in respect of such Servicer
Default. If such Servicer Default arises from the failure of the Servicer to perform any of its
duties or obligations under the Sale and Servicing Agreement with respect to the Loans, the Issuer
may remedy such failure. So long as any such Servicer Default shall be continuing, the



15









 




Indenture
Trustee may exercise its remedies set forth in Section 8.03 of the Sale and Servicing Agreement.
Unless granted or permitted by the Holders of the Notes to the extent provided above, the Issuer
may not waive any such Servicer Default or terminate the rights and powers of the Servicer under
the Sale and Servicing Agreement.




     Section 3.10. Negative Covenants.



     So long as any Notes are Outstanding, the Issuer shall not:




     (i) except as expressly permitted by this Indenture or any other Transaction Document,
sell, transfer, exchange or otherwise dispose of the Indenture Collateral, unless directed
to do so by the Indenture Trustee;




     (ii) claim any credit on, or make any deduction from the principal or interest payable
in respect of, the Notes (other than amounts properly withheld from such
payments under the Code or applicable state law) or assert any claim against any
present or former Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Indenture Collateral;




     (iii) permit the validity or effectiveness of this Indenture to be impaired, or permit
the lien of this Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture except as may be expressly permitted hereby,
permit any lien, charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture or any other Transaction Document) to be created on
or extend to or otherwise arise upon or burden the Indenture Collateral or any part thereof
or any interest therein or the proceeds thereof or permit the lien of this Indenture not to
constitute a valid first priority security interest in the Indenture Collateral;




     (iv) except as contemplated in the Transaction Documents, dissolve or liquidate in
whole or in part;




     (v) enter into any agreement which does not contain non-petition and limited recourse
provisions substantially to the effect of Section 11.15 hereof and will not consent
to any amendment or waiver of such provisions;




     (vi) create any subsidiaries; or




     (vii) make any payment or distribution with respect to the Certificates other than as
permitted under this Indenture and the other Transaction Documents.



     Section 3.11. Annual Statement as to Compliance.



     The Issuer will deliver to the Indenture Trustee and the Rating Agencies within 90 days after
the end of each calendar year (beginning with the calendar year ending 2007), an Officer’s
Certificate stating, as to the Person signing such Officer’s Certificate, that:



16









 






     (i) a review of the activities of the Issuer during such year and of its performance
under this Indenture has been made under such Person’s supervision or direction; and




     (ii) to the best of such Person’s knowledge, based on such review, the Issuer has
complied with all conditions and covenants under this Indenture throughout such year, or, if
there has been such a default in its compliance with any such condition or covenant,
specifying each such default known to such Person and the nature and status thereof.



     Section 3.12. [Reserved].

Section 3.13. Representations and Warranties Concerning the Loans.



     The Issuer has pledged to the Indenture Trustee for the benefit of the Noteholders all of its
rights under the Loan Sale Agreement and the Sale and Servicing Agreement and the Indenture Trustee
has the benefit of the representations and warranties made by the Originator and the Trust
Depositor in such documents concerning the Loans transferred into the Loan Assets and the right to
enforce any remedy against the Originator and the Trust Depositor provided in the Loan Sale
Agreement and the Sale and Servicing Agreement, to the same extent as though such representations
and warranties were made directly to the Indenture Trustee.



     Section 3.14. Indenture Trustee’s Review of Loan Files.



     The Indenture Trustee agrees, for the benefit of the Noteholders, to review the Loan Files as
provided in Section 2.09 of the Sale and Servicing Agreement.



     Section 3.15. Indenture Collateral; Related Documents.



     (a) When instructed to do so by the Issuer or the Servicer, the Indenture Trustee shall
execute instruments to release property from the lien of this Indenture, or convey the Indenture
Trustee’s interest in the same, in a manner and under circumstances which are not inconsistent with
the provisions of this Indenture or the Sale and Servicing Agreement. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article III shall be bound to
ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys.



     (b) In order to facilitate the servicing of the Loans, the Indenture Trustee and the Issuer
authorize the Servicer in the name and on behalf of the Indenture Trustee and the Issuer, to
perform its respective duties and obligations under the Sale and Servicing Agreement and the
Indenture Trustee agrees to perform its obligations thereunder in accordance with the terms
thereof.



     (c) The Indenture Trustee shall, at such time as there are no Notes Outstanding release all of
the Indenture Collateral to the Issuer (other than any cash held for the payment of the Notes
pursuant to Section 3.03 or 4.06), subject, however, to the rights of the Indenture
Trustee under Section 6.07.



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     Section 3.16. Amendments to Sale and Servicing Agreement.



     The Indenture Trustee may enter into any amendment or supplement to the Sale and Servicing
Agreement only in accordance with Section 13.01 of the Sale and Servicing Agreement. The Indenture
Trustee may, in its reasonable discretion, decline to enter into or consent to any such supplement
or amendment if its own rights, duties or immunities shall be adversely affected in any material
respect.



     Section 3.17. Servicer as Agent and Bailee of Indenture Trustee.



     (a) Solely for purposes of perfection under Section 9–313 of the UCC or other similar
applicable law, rule or regulation of the state in which such property is held by the Servicer, the
Indenture Trustee hereby acknowledges that the Servicer is acting as agent and bailee of the
Indenture Trustee in holding amounts on deposit in the Principal and Interest Accounts pursuant to
Section 7.01 of the Sale and Servicing Agreement, and the Indenture Trustee hereby acknowledges
that the Servicer is acting as its agent and bailee of the Indenture Trustee in holding any
documents released to the Servicer pursuant to the Sale and Servicing Agreement as well as any
other items constituting a part of the Indenture Collateral which from time to time come into the
possession of the Servicer. It is intended that, by the Servicer’s execution and delivery of the
Sale and Servicing Agreement, the Indenture Trustee, as a secured party, will be deemed to have
possession of such documents, such moneys and such other items for purposes of Section 9–313 of the
UCC of the state in which such property is held by the Servicer.



     (b) Solely for purposes of perfection under Section 9–313 of the UCC or other similar
applicable law, rule or regulation of the state in which such property is held by the Indenture
Trustee, if the transfer of the Loans and the other assets in the Indenture Collateral by the Trust
Depositor to the Issuer is deemed to be a loan, the Indenture Trustee hereby acknowledges it is
acting as agent and bailee of the Issuer in holding items constituting a part of the Indenture
Collateral which from time to time come into the possession of the Indenture Trustee.



     Section 3.18. Investment Company Act.



     The Issuer shall not and none of the Issuer or the Indenture Trustee shall take any action
that would cause the Issuer to be required to register as an “investment company” under the 1940
Act (or any successor or amendatory statute).



     Section 3.19. Issuer May Consolidate, etc., Only on Certain Terms.



     (a) The Issuer shall not consolidate or merge with or into any other Person, unless:




     (i) the Person (if other than the Issuer) formed by or surviving such consolidation or
merger shall be a Person organized and existing under the laws of the United States or any
state or the District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of and interest on all
Notes and the performance or observance of every agreement and covenant of this Indenture,
the Trust Certificates and each other Transaction Document on the part of the Issuer to be
performed or observed, all as provided herein and therein;



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     (ii) prior written notice of such merger or consolidation has been given to the Rating
Agencies and each Rating Agency has notified the Issuer, the Trust Depositor and the
Indenture Trustee in writing that such transaction will not have a Ratings Effect;




     (iii) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing;




     (iv) the Issuer shall have received an Opinion of Counsel (and shall have delivered
copies thereof to the Indenture Trustee) to the effect that such transaction will not have
any material adverse tax consequence to the Issuer and any Securityholder;




     (v) any action that is necessary to maintain the lien and security interest created by
this Indenture shall have been taken; and




     (vi) the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate
and an Opinion of Counsel each stating that such consolidation or merger and such
supplemental indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been complied with.



     (b) Except as otherwise permitted hereunder or under the Transaction Documents, the Issuer
shall not convey or transfer all or substantially all of its properties or assets, including those
included in the Indenture Collateral, to any Person, unless:




     (i) the Person that acquires by conveyance or transfer the properties and assets of the
Issuer the conveyance or transfer of which is hereby restricted shall be a United States
citizen or a Person organized and existing under the laws of the United States or any state,
expressly assumes, by an indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form and substance reasonably satisfactory to the Indenture Trustee,
the due and punctual payment of the principal of and interest on all Notes and the amounts
payable under each other Transaction Document, and the performance or observance of every
agreement and covenant of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein, expressly agrees by means of such supplemental indenture
that all right, title and interest so conveyed or transferred shall be subject and
subordinate to the rights of the Holders of the Notes, unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend and hold harmless the Issuer
against and from any loss, liability or expense arising under or related to this Indenture
and the Notes;




     (ii) prior written notice of such transaction has been given to the Rating Agencies and
each Rating Agency has notified the Issuer, the Trust Depositor and the Indenture Trustee in
writing that such transaction will not have a Ratings Effect;




     (iii) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing;




     (iv) the Issuer shall have received an Opinion of Counsel (and shall have delivered
copies thereof to the Indenture Trustee) to the effect that such transaction will



19









 







not have
any material adverse tax consequence to the Issuer, any Noteholder and any
Certificateholder;




     (v) any action that is necessary to maintain the lien and security interest created by
this Indenture shall have been taken; and




     (vi) the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate
and an Opinion of Counsel each stating that such conveyance or transfer and such
supplemental indenture comply with this Article III and that all conditions
precedent herein provided for relating to such transaction have been complied with.



     Section 3.20. Successor or Transferee.



     (a) Upon any consolidation or merger of the Issuer in accordance with Section 3.19(a),
the Person formed by or surviving such consolidation or merger (if other than the Issuer) shall
succeed to, and be substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such Person had been named as the Issuer herein.



     (b) Upon a conveyance or transfer of all or substantially all of the assets and properties of
the Issuer pursuant to Section 3.19(b), the Issuer will be released from every covenant and
agreement of this Indenture to be observed or performed on the part of the Issuer with respect to
the Notes immediately upon the delivery of written notice to the Indenture Trustee stating that the
Issuer is to be so released.



     Section 3.21. No Other Business.



     The Issuer shall not engage in any business or activity other than as permitted by the Trust
Agreement.



     Section 3.22. No Borrowing.



     The Issuer shall not issue, incur, assume, guarantee or otherwise become liable, directly or
indirectly, for any indebtedness except for the Notes and any other indebtedness permitted by the
Transaction Documents. The proceeds from the initial sale of the Notes and the Trust Certificates
shall be used exclusively to fund the Issuer’s purchase of the Loans and other assets specified in
the Sale and Servicing Agreement, to fund the Reserve Fund and to pay the transactional expenses of
the Issuer.



     Section 3.23. Guarantees, Loans, Advances and Other Liabilities.



     Except as contemplated by this Indenture or the other Transaction Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another’s payment or performance on any obligation or capability of
so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire
(or agree contingently to do so) any stock, obligations, assets or securities of, or any other
interest in, or make any capital contribution to, any other Person.



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     Section 3.24. Capital Expenditures.



     The Issuer shall not make any expenditure (by long–term or operating lease or otherwise) for
capital assets (either realty or personalty).



     Section 3.25. Representations and Warranties of the Issuer.



     The Issuer represents and warrants as of the date hereof and as of any Transfer Date as
follows:



     (a) Power and Authority. It has full power, authority and legal right to execute,
deliver and perform its obligations as Issuer under this Indenture and the Notes (the foregoing
documents, the “Issuer Documents”) and under each of the other Transaction Documents to
which the Issuer is a party.



     (b) Due Authorization and Binding Obligation. The execution and delivery of the
Issuer Documents and the Transaction Documents to which the Issuer is a party, and the consummation
of the transactions provided for therein have been duly authorized by all necessary action on its
part. Each of the Issuer Documents and the other Transaction Documents to which the Issuer is a
party constitutes the legal, valid and binding obligation of the Issuer and is enforceable in
accordance with its terms, except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors’ rights generally and by the
availability of equitable remedies.



     (c) No Conflict. The execution and delivery of the Issuer Documents and the other
Transaction Documents to which the Issuer is a party, the performance of the transactions
contemplated thereby and the fulfillment of the terms thereof will not conflict with, result in any
breach of any of the material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Issuer is a party or by which it or any of its property is
bound.



     (d) No Violation. The execution and delivery of the Issuer Documents and the other
Transaction Documents to which the Issuer is a party, the performance of the transactions
contemplated thereby and the fulfillment of the terms thereof will not conflict with or violate, in
any material respect, any Applicable Law.



     (e) All Consents Required. All approvals, authorizations, consents, orders or other
actions of any Person or any Governmental Authority required in connection with the execution and
delivery of the Issuer Documents and the other Transaction Documents to which the Issuer is a
party, the performance of the transactions contemplated thereby and the fulfillment of the terms
thereof have been obtained.



     (f) No Proceedings. No litigation or administrative proceeding of or before any
court, tribunal or governmental body is currently pending, or to the knowledge of the Issuer,
threatened, against the Issuer or any of its respective properties or with respect to the Issuer
Documents or any other Transaction Document to which the Issuer is a party that, if adversely
determined, would have a material adverse effect on the business, properties, assets or condition



21









 




(financial or otherwise) of the Issuer or the transactions contemplated by the Issuer Documents or
any of the other Transaction Documents to which the Issuer is a party.




     (g) Organization and Good Standing. The Issuer is a statutory trust duly organized,
validly existing and in good standing under the laws of Delaware and has the requisite power to own
its assets and to transact the business in which it is currently engaged, and had at all relevant
times, and now has, all necessary power, authority and legal right under its organizational
documents and under Applicable Law to acquire, own and pledge the Indenture Collateral.



     (h) 1940 Act. The Issuer is not an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.



     (i) Location. The Issuer is located (within the meaning of Article 9 of the UCC) in
Delaware. The Issuer agrees that it will not change its location (within the meaning of Article 9
of the UCC) without at least 30 days prior written notice to the Originator, the Servicer, the
Indenture Trustee and the Rating Agencies.



     (j) Security Interest in Indenture Collateral.




     (i) This Indenture creates a valid, continuing and enforceable security interest (as
defined in the applicable UCC) in the Indenture Collateral in favor of the Indenture
Trustee, which security interest is prior to all other Liens (except for Permitted Liens),
and is enforceable as such against creditors of and purchasers from the Issuer;




     (ii) such Indenture Collateral constitutes a “general intangible,” an “instrument,” an
“account,” “investment property,” and/or “chattel paper,” within the meaning of the
applicable UCC;




     (iii) the Issuer owns and has good and marketable title to such Indenture Collateral
free and clear of any Lien (other than Permitted Liens), claim or encumbrance of any Person;




     (iv) the Issuer has received all consents and approvals required by the terms of the
Indenture Collateral to the pledge of the Indenture Collateral hereunder to the Indenture
Trustee;




     (v) the Issuer has caused the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under Applicable Law in order to
perfect the security interest in such Indenture Collateral granted to the Indenture Trustee
under this Indenture;




     (vi) other than the security interest granted by the Issuer pursuant to this Indenture,
the Issuer has not pledged, assigned, sold, granted a security interest in or otherwise
conveyed any of such Indenture Collateral. The Issuer has not authorized the
filing of and is not aware of any financing statements against the Issuer that include
a description of collateral covering such Indenture Collateral other than any financing
statement (A) relating to the security interest granted by the Issuer under this Indenture,



22









 







or (B) that has been terminated. The Issuer is not aware of the filing of any judgment or
tax Lien filings against the Issuer;




     (vii) all original executed copies of each Underlying Note that constitute or evidence
the Indenture Collateral have been delivered to and to the knowledge of the Issuer are in
the possession of the Indenture Trustee;




     (viii) the Issuer has received a written acknowledgment from the Indenture Trustee that
the Indenture Trustee or its bailee is holding the Underlying Notes that constitute or
evidence the Indenture Collateral solely on behalf of and for the benefit of the
Securityholders; and




     (ix) none of the Underlying Notes that constitute or evidence the Indenture Collateral
has any marks or notations indicating that they have been pledged, assigned or otherwise
conveyed to any Person other than the Issuer and the Indenture Trustee.



     The representations and warranties in Section 3.25(j) shall survive the termination of
this Agreement and such representations and warranties may not be waived by any party hereto and
shall be deemed re-made as of each Subsequent Transfer Date with respect to any Substitute Loan.



     Section 3.26. Restricted Payments.



     The Issuer shall not, directly or indirectly, (i) pay any dividend or make any distribution
(by reduction of capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of the Issuer, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership or equity interest or security or (iii)
set aside or otherwise segregate any amounts for any such purpose; provided that the Issuer may
make, or cause to be made, (w) distributions to the Owner Trustee, the Trust Company and the
Certificateholders as contemplated by, and to the extent funds are available for such purpose under
the Trust Agreement and the Sale and Servicing Agreement, (x) payment to the Servicer and/or Trust
Depositor pursuant to the terms of the Sale and Servicing Agreement or the other Transaction
Documents and (y) payments to the Indenture Trustee pursuant to terms of the Sale and Servicing
Agreement. The Issuer will not, directly or indirectly, make payments to or distributions from the
Note Distribution Account except in accordance with this Indenture and the Transaction Documents.



     Section 3.27. Notice of Events of Default.



     The Issuer shall give the Indenture Trustee and the Rating Agencies prompt written notice of
each Event of Default hereunder and under the Trust Agreement and of each Servicer Default under
the Sale and Servicing Agreement and of any event of default of any Transaction
Document and of any other amendment or waiver of any Transaction Document.




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     Section 3.28. Further Instruments and Acts.



     Upon request of the Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.



     Section 3.29. Statements to Noteholders.



     The Indenture Trustee shall forward by electronic mail to each Noteholder the statements
delivered to it pursuant to Article IX of the Sale and Servicing Agreement except for the
Monthly Report. On each Payment Date, the Indenture Trustee may make available to the Noteholders,
the parties to the Transaction Documents and the Rating Agencies, via the Indenture Trustee’s
Internet website, each Monthly Report and, with the consent or at the direction of the Trust
Depositor, such other information regarding the Notes and/or the Loans as the Indenture Trustee may
have in its possession, but only with the use of a password provided by the Indenture Trustee;
provided that the Indenture Trustee shall have no obligation to provide such information described
in this Section 3.29 until it has received the requisite information from the Trust
Depositor or the Servicer. The Indenture Trustee will make no representation or warranties as to
the accuracy or completeness of such documents and will assume no responsibility therefor.



     The Indenture Trustee’s Internet website shall be initially located at “www.CTSLink.com” or at
such other address as shall be specified by the Indenture Trustee from time to time in writing to
the Noteholders, the parties to the Transaction Documents and the Rating Agencies. In connection
with providing access to the Indenture Trustee’s Internet website, the Indenture Trustee may (other
than with respect to the parties to the Transaction Documents and the Rating Agencies) require
registration and the acceptance of a disclaimer. The Indenture Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.



     Section 3.30. Grant of Substitute Loans.



     In consideration of the delivery on each Subsequent Transfer Date pursuant to and in
accordance with the terms of Section 2.04 of the Sale and Servicing Agreement, the Issuer grants to
the Indenture Trustee a security interest in all of its right, title and interest in the Loans
transferred on such Subsequent Transfer Date and simultaneously with the transfer of the Substitute
Loans to the extent of the availability thereof, the Issuer will cause the related Loan File to be
delivered to the Indenture Trustee.



     Section 3.31. Determination of LIBOR; Note Interest Rate; Interest Distributable.



     Until the Outstanding Principal Balance of each Class of Notes has been reduced to zero, the
Indenture Trustee shall determine LIBOR for each Interest Accrual Period as provided in Section
7.06 of the Sale and Servicing Agreement, and based upon such determination of LIBOR, the Trustee
shall calculate the Class A Note Interest Rate, the Class B Note Interest Rate, the Class C Note
Interest Rate, the Class D Note Interest Rate and the Class E Note Interest Rate for such Interest
Accrual Period, and shall inform the Issuer, the Trust Depositor and the Servicer at their
respective email addresses given to the Indenture Trustee in writing thereof.



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Any such determination by the Indenture Trustee of the amount of interest distributable on the
Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes shall
be binding on the parties absent manifest error.




     Section 3.32. [Reserved]



     Section 3.33. Payments from Obligor Lock–Boxes and Obligor Lock–Box Accounts.



     The Issuer agrees not to make, or permit to be made, any change, in the direction of, or
instructions with respect to, any payments to be made by an Obligor Lock–Box Bank from any Obligor
Lock–Box or any Obligor Lock–Box Account in any manner that would diminish, impair, delay or
otherwise adversely effect the timing or receipt of such payments by the Lock–Box Bank or to change
the name in which an Obligor Lock-Box or Obligor Lock-Box Account is maintained without the prior
written consent of the Indenture Trustee and with the consent of the Majority Noteholders. The
Issuer further agrees to provide the Indenture Trustee promptly, but in no case later than one
Business Day after the Issuer’s receipt, any notice it receives that an Obligor is changing the
direction of or instructions with respect to any payments from any Obligor Lock–Box or any Obligor
Lock–Box Account or the name in which an Obligor Lock-Box or Obligor Lock-Box Account is
maintained.



     Section 3.34. Maintenance of Listing.



     So long as any of the Listed Notes remain Outstanding, the Issuer shall use all commercially
reasonable efforts to maintain the listing of such Listed Notes on the Irish Stock Exchange. If,
despite such efforts, such listing cannot be maintained, the Issuer shall instead use reasonable
efforts to promptly obtain and thereafter maintain a listing of such Listed Notes on any other
stock exchange located within a member country of the European Union.



ARTICLE IV

THE NOTES; SATISFACTION AND DISCHARGE OF INDENTURE




     Section 4.01. The Notes.



     Certain of the Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes and the
Class E Notes shall be registered initially in the name of Cede & Co. Beneficial Owners will hold
interests in the Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes and the
Class E Notes through the book–entry facilities of DTC (a) other than the Class E Notes, in minimum
denominations of $250,000 and (b) in the case of the Class E Notes, in minimum denominations of
$1,000,000 and, in each case, in integral multiples of $1,000 in excess thereof. Subject to
Sections 4.02(b), (p), (q) and (r), 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
issued in such names and denominations as may be set forth on an Issuer Order delivered to the
Indenture Trustee.



     The Notes shall, on original issue, be executed on behalf of the Issuer by the Owner Trustee,
not in its individual capacity but solely as Owner Trustee, authenticated by the Note Registrar and
delivered by the Indenture Trustee to or upon the order of the Issuer.



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     Section 4.02. Registration of Transfer and Exchange of Notes.



     (a) The Indenture Trustee shall cause to be kept a Note Register (the “Note Register”)
in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers and exchanges of Notes as herein
provided. The Indenture Trustee shall be “Note Registrar” for the purpose of registering Notes and
transfers of Notes as herein provided. The Note Register shall contain the name, remittance
instructions, Class of each Noteholder, as well as the Series and the number in the Series.



     (b) Each Class of Notes (other than the Class E Notes) shall be issued in minimum
denominations of $250,000 (provided that the Class E Notes shall be issued in minimum denominations
of $1,000,000) initial principal amount and integral multiples of $1,000 in excess thereof, except
that one Note of each Class may be in a different denomination so that the sum of the denominations
of all outstanding Notes of such Class shall equal the applicable Initial Class A Principal
Balance, the Initial Class B Principal Balance, the Initial Class C Principal Balance, the Initial
Class D Principal Balance, the Initial Class E Principal Balance and the Initial Class F Principal
Balance, respectively. On the Closing Date, the Indenture Trustee will execute and authenticate
(i) one or more Global Notes and/or (ii) Individual Notes all in an aggregate principal amount that
shall equal the applicable Initial Class A Principal Balance, the applicable Initial Class B
Principal Balance, the applicable Initial Class C Principal Balance, the applicable Initial Class D
Principal Balance, the applicable Initial Class E Principal Balance and the applicable Initial
Class F Principal Balance.



     (c) The Global Notes (i) shall be delivered by the Issuer to DTC or, pursuant to DTC’s
instructions, shall be delivered by the Issuer on behalf of DTC to and deposited with the DTC
Custodian, and in each case shall be registered in the name of Cede & Co. and (ii) with respect to
the Rule 144A Global Notes, shall bear a legend substantially to the following effect:




“Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation
(“DTC”), to the Note Registrar or its agent for registration
of transfer, exchange or payment, and any Note issued is registered
in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede
& Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.”



     The Global Notes may be deposited with such other depository as the Issuer may from time to
time designate, and shall bear such legend as may be appropriate; provided that such successor
depository maintains a book–entry system that qualifies to be treated as “registered form” under
Section 163(f)(3) of the Code.



     The Issuer and the Indenture Trustee are hereby authorized to execute and deliver a Letter of
Representations with DTC relating to the Notes.



26









 





     (d) With respect to Notes registered in the Note Register in the name of Cede & Co., as
nominee of DTC, the Issuer, the Servicer, the Owner Trustee (as such and in its individual
capacity) and the Indenture Trustee shall have no responsibility or obligation to Direct or
Indirect Participants or Beneficial Owners for which DTC holds Notes from time to time as a
depository. Without limiting the immediately preceding sentence, the Issuer, the Servicer, the
Owner Trustee, (as such and in its individual capacity), and the Indenture Trustee shall have no
responsibility or obligation with respect to (a) the accuracy of the records of DTC, Cede & Co., or
any Direct or Indirect Participant with respect to the ownership interest in the Notes, (b) the
delivery to any Direct or Indirect Participant or any other Person, other than a registered Holder
of a Note, (c) the payment to any Direct or Indirect Participant or any other Person, other than a
registered Holder of a Note as shown in the Note Register, of any amount with respect to any
distribution of principal or interest on the Notes or (d) the making of book–entry transfers among
Participants of DTC with respect to Notes registered in the Note Register in the name of the
nominee of DTC. No Person other than a registered Holder of a Note as shown in the Note Register
shall receive a Note evidencing such Note.



     (e) Upon delivery by DTC to the Indenture Trustee of written notice to the effect that DTC has
determined to substitute a new nominee in place of Cede & Co., and subject to the provisions hereof
with respect to the payment of distributions by the mailing of checks or drafts to the registered
Holders of Notes appearing as registered Owners in the Note Register on a Record Date, the name
“Cede & Co.” in this Indenture shall refer to such new nominee of DTC.



     (f) In the event that (i) DTC or the Servicer advises the Indenture Trustee in writing that
DTC is no longer willing or able to discharge properly its responsibilities as nominee and
depository with respect to the Global Notes and the Servicer is unable to locate a qualified
successor or (ii) the Servicer at its sole option elects to terminate the book–entry system through
DTC, the Global Notes shall no longer be restricted to being registered in the Note Register in the
name of Cede & Co. (or a successor nominee) as nominee of DTC. At that time, the Servicer may
determine that the Global Notes shall be registered in the name of and deposited with a successor
depository operating a global book–entry system, as may be acceptable to the Servicer, or such
depository’s agent or designee but, if the Servicer does not select such alternative global
book–entry system, then upon surrender to the Note Registrar of the Global Notes by DTC,
accompanied by the registration instructions from DTC for registration, the Indenture Trustee shall
at the Servicer’s expense authenticate Individual Notes. Neither the Servicer nor the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions. Upon the issuance of Individual
Notes, the Indenture Trustee, the Note Registrar, the Servicer, any Paying Agent and the Issuer
shall recognize the Holders of the Individual Notes as Noteholders hereunder.



     (g) Notwithstanding any other provision of this Agreement to the contrary, so long as any
Global Notes are registered in the name of Cede & Co., as nominee of DTC, all distributions of
principal and interest on such Global Notes and all notices with respect to such Global Notes shall
be made and given, respectively, in the manner provided in the Letter of Representations.



     (h) Subject to the preceding paragraphs, upon surrender for registration of transfer of any
Note at the office of the Note Registrar and, upon satisfaction of the conditions set forth below,
the Issuer shall execute in the name of the designated transferee or transferees, a new Note or
Notes of the same aggregate Percentage Interest and dated the date of authentication by



27









 







the Indenture Trustee. The Note Registrar shall notify the Servicer and the Indenture Trustee
of any such transfer.



     (i) At the option of the Noteholders, Notes may be exchanged for other Notes in authorized
denominations of a like Class, upon surrender of the Notes to be exchanged at such office.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute the Notes which the
Noteholder making the exchange is entitled to receive. Every Note presented or surrendered for
transfer or exchange shall be accompanied by wiring instructions, if applicable, in the form of
Exhibit C. The preceding provisions of this section notwithstanding, the Issuer shall not
be required to make and the Note Registrar shall not register transfers or exchanges of Notes
called for repurchase.



     (j) No service charge shall be made for any transfer or exchange of Notes, but prior to
transfer the Note Registrar may require payment by the transferor of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer or exchange of
Notes.



     All Notes surrendered for payment, transfer and exchange or repurchase shall be marked
canceled by the Note Registrar and retained for one year and destroyed thereafter.



     (k) By acceptance of an Individual Note, whether upon original issuance or subsequent
transfer, each holder of such a Note acknowledges the restrictions on the transfer of such Note set
forth in the Securities Legend and agrees that it will transfer such a Note only as provided
herein. In addition to the provisions of Section 4.02(m) and (n) the following
restrictions shall apply with respect to the transfer and registration of transfer of an Individual
Note to a transferee that takes delivery in the form of an Individual Note:




     (i) The Note Registrar shall register the transfer of an Individual Note if the
requested transfer is being made to a transferee who has provided the Note Registrar with a
Rule 144A Certification or to a transferee who is an Affiliate of the Originator in a
transfer which otherwise complies with Section 4.02(s); or




     (ii) The Note Registrar shall register the transfer of any Individual Note if (I) such
transfer is made to a transferee who is an Affiliate of the Originator and such transfer
otherwise complies with Section 4.02(s), or (II) (x) the transferor has advised the
Note Registrar in writing that the Note is being transferred to a Person that is both an
Institutional Accredited Investor and a Qualified Purchaser; and (y) prior to the transfer
the transferee furnishes to the Note Registrar a Transferee Letter; provided that if based
upon an Opinion of Counsel to the effect that the delivery of (x) and (y) above are not
sufficient to confirm that the proposed transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the Securities
Act and other applicable laws, the Note Registrar may as a condition of the registration of
any such transfer require the transferor to furnish other certifications, legal opinions or
other information prior to registering the transfer of an Individual Note.



     (l) Subject to Section 4.02(n), so long as a Global Note remains outstanding and is
held by or on behalf of DTC, transfers of beneficial interests in the Global Note, or transfers by
holders of Individual Notes to transferees that take delivery in the form of beneficial interests
in



28









 







the Global Note, may be made only in accordance with this Section 4.02(l) and in
accordance with the rules of DTC.




     (i) Rule 144A Global Note to Regulation S Global Note During the Distribution
Compliance Period. If, during the Distribution Compliance Period, a Beneficial Owner of
an interest in a Rule 144A Global Note wishes at any time to transfer its beneficial
interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Global Note, such Beneficial Owner may,
in addition to complying with all applicable rules and procedures of DTC and Clearstream or
Euroclear applicable to transfers by their respective participants (the “Applicable
Procedures”), transfer or cause the transfer of such beneficial interest for an
equivalent beneficial interest in the Regulation S Global Note only upon compliance with the
provisions of this Section 4.02(l)(i). Upon receipt by the Note Registrar at its
Corporate Trust Office of (1) written instructions given in accordance with the Applicable
Procedures from a DTC Participant directing the Note Registrar to credit or cause to be
credited to another specified DTC Participant’s account a beneficial interest in the
Regulation S Global Note in an amount equal to the denomination of the beneficial interest
in the Rule 144A Global Note to be transferred, (2) a written order given in accordance with
the Applicable Procedures containing information regarding the account of the DTC
Participant (and the Euroclear or Clearstream account, as the case may be) to be credited
with, and the account of the DTC Participant to be debited for, such beneficial interest,
and (3) a certificate in the form of Exhibit E hereto given by the Beneficial Owner
that is transferring such interest, the Note Registrar shall instruct DTC to reduce the
denomination of the Rule 144A Global Note by the denomination of the beneficial interest in
the Rule 144A Global Note to be so transferred and, concurrently with such reduction, to
increase the denomination of the Regulation S Global Note by the denomination of the
beneficial interest in the Rule 144A Global Note to be so transferred, and to credit or
cause to be credited to the account of the Person specified in such instructions (who shall
be a DTC Participant acting for or on behalf of Euroclear or Clearstream, or both, as the
case may be) a beneficial interest in the Regulation S Global Note having a denomination
equal to the amount by which the denomination of the Rule 144A Global Note was reduced upon
such transfer.




     (ii) Rule 144A Global Note to Regulation S Global Note After the Distribution
Compliance Period. If, after the Distribution Compliance Period, a Beneficial Owner of
an interest in a Rule 144A Global Note wishes at any time to transfer its beneficial
interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Global Note, such holder may, in
addition to complying with all Applicable Procedures, transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in a Regulation S Global Note only
upon compliance with the provisions of this Section 4.02(l)(ii). Upon receipt by
the Note Registrar at its Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from a DTC Participant directing the Note
Registrar to credit or cause to be credited to another specified DTC Participant’s account a
beneficial interest in the Regulation S Global Note in an amount equal to the denomination
of the beneficial interest in the Rule 144A Global Note to be transferred, (2) a written
order given in accordance with the Applicable Procedures



29









 






containing information regarding the account of the DTC Participant (and, in the case
of a transfer pursuant to and in accordance with Regulation S, the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the DTC Participant to
be debited for, such beneficial interest, and (3) a certificate in the form of Exhibit
F hereto given by the Beneficial Owner that is transferring such interest, the Note
Registrar shall instruct DTC to reduce the denomination of the Rule 144A Global Note by the
aggregate denomination of the beneficial interest in the Rule 144A Global Note to be so
transferred and, concurrently with such reduction, to increase the denomination of the
Regulation S Global Note by the aggregate denomination of the beneficial interest in the
Rule 144A Global Note to be so transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions (who shall be a DTC Participant acting
for or on behalf of Euroclear or Clearstream, or both, as the case may be) a beneficial
interest in the Regulation S Global Note having a denomination equal to the amount by which
the denomination of the Rule 144A Global Note was reduced upon such transfer.




     (iii) Regulation S Global Note to Rule 144A Global Note. If the Beneficial
Owner of an interest in a Regulation S Global Note wishes at any time to transfer its
beneficial interest in such Regulation S Global Note to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Rule 144A Global Note, such holder may,
in addition to complying with all Applicable Procedures, transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in the Rule 144A Global Note
only upon compliance with the provisions of this Section 4.02(l)(iii). Upon receipt
by the Note Registrar at its Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from a DTC Participant directing the Note
Registrar to credit or cause to be credited to another specified DTC Participant’s account a
beneficial interest in the Rule 144A Global Note in an amount equal to the denomination of
the beneficial interest in the Regulation S Global Note to be transferred, (2) a written
order given in accordance with the Applicable Procedures containing information regarding
the account of the DTC Participant to be credited with, and the account of the DTC
Participant (or, if such account is held for Euroclear or Clearstream, the Euroclear or
Clearstream account, as the case may be) to be debited for such beneficial interest, and (3)
with respect to a transfer of a beneficial interest in the Regulation S Global Note for a
beneficial interest in the related Rule 144A Global Note (i) during the Distribution
Compliance Period, a certificate in the form of Exhibit G hereto given by the
Beneficial Owner that is transferring such interest, or (ii) after the Distribution
Compliance Period, a Rule 144A Certification from the transferee of such interest to the
effect that such transferee is a Qualified Institutional Buyer and a Qualified Purchaser,
the Note Registrar shall instruct DTC to reduce the denomination of the Regulation S Global
Note by the denomination of the beneficial interest in the Regulation S Global Note to be
transferred and, concurrently with such reduction, to increase the denomination of the Rule
144A Global Note by the aggregate denomination of the beneficial interest in the Regulation
S Global Note to be so transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions (who shall be a DTC Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a beneficial interest in
the Rule 144A Global Note having a denomination



30









 






equal to the amount by which the denomination of the Regulation S Global Note was
reduced upon such transfer.




     (iv) Transfers Within Regulation S Global Notes During Distribution Compliance
Period. If, during the Distribution Compliance Period, the Beneficial Owner of an
interest in a Regulation S Global Note wishes at any time to transfer its beneficial
interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in
the form of a Regulation S Global Note, such Beneficial Owner may transfer or cause the
transfer of such beneficial interest for an equivalent beneficial interest in such
Regulation S Global Note only upon compliance with the provisions of this Section
4.02(l)(iv) and all Applicable Procedures. Upon receipt by the Note Registrar at its
Corporate Trust Office of (1) written instructions given in accordance with the Applicable
Procedures from a DTC Participant directing the Note Registrar to credit or cause to be
credited to another specified DTC Participant’s account a beneficial interest in such
Regulation S Global Note in an amount equal to the denomination of the beneficial interest
to be transferred, (2) a written order given in accordance with the Applicable Procedures
containing information regarding the account of the DTC Participant to be credited with, and
the account of the DTC Participant (or, if such account is held for Euroclear or
Clearstream, the Euroclear or Clearstream account, as the case may be) to be debited for,
such beneficial interest and (3) a certificate in the form of Exhibit H hereto given
by the Beneficial Owner that is transferring such interest, the Note Registrar shall
instruct DTC to credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a DTC Participant acting for or on behalf of Euroclear or
Clearstream, or both, as the case may be) a beneficial interest in the Regulation S Global
Note having a denomination equal to the amount specified in such instructions by which the
account to be debited was reduced upon such transfer. The Note Registrar shall not be
required to monitor compliance by Beneficial Owners of the provisions of this Section
4.02(l)(iv).



     (m) Transfers of Interests in Global Notes to Individual Notes. Any and all transfers
from a Global Note to a transferee wishing to take delivery in the form of an Individual Note will
require the transferee to take delivery subject to the restrictions on the transfer of such
Individual Note described on the face of such Note, and such transferee agrees that it will
transfer such Individual Note only as provided therein and herein. No such transfer shall be made
and the Note Registrar shall not register any such transfer unless such transfer is made in
accordance with this Section 4.02(m) or is made to an Affiliate of the Originator in a
transfer which otherwise complies with Section 4.02(s).




     (i) Transfers of a beneficial interest in a Global Note to a Person who is both an
Institutional Accredited Investor and a Qualified Purchaser will require delivery of such
Note to the transferee in the form of an Individual Note and the Note Registrar shall
register such transfer only if prior to the transfer such transferee furnishes to the Note
Registrar (1) a Transferee Letter to the effect that the transfer is being made to an
Institutional Accredited Investor who is a Qualified Purchaser in accordance with an
applicable exemption under the Securities Act, and (2) an Opinion of Counsel acceptable to
the Indenture Trustee that such transfer is in compliance with the Securities Act.



31









 






     (ii) Transfers of a beneficial interest in a Global Note to a Qualified Institutional
Buyer who is a Qualified Purchaser or a Regulation S Investor wishing to take delivery in
the form of an Individual Note will be registered by the Note Registrar only upon compliance
with the provisions of Section 4.02(l) and if the Note Registrar is provided with a
Rule 144A Certification or a Regulation S Transfer Certificate, as applicable.




     (iii) Notwithstanding the foregoing, no transfer of a beneficial interest in a
Regulation S Global Note to an Individual Note pursuant to subparagraph 4.02(m)(ii) above
shall be made prior to the expiration of the Distribution Compliance Period and compliance
with the certification requirements of Rule 903(b)(3)(ii)(B) under the Securities Act. Upon
acceptance for exchange or transfer of a beneficial interest in a Global Note for an
Individual Note, as provided herein, the Note Registrar shall endorse on the schedule
affixed to the related Global Note Registrar (or on a continuation of such schedule affixed
to such Global Note Registrar and made a part thereof) an appropriate notation evidencing
the date of such exchange or transfer and a decrease in the denomination of such Global Note
Registrar equal to the denomination of such Individual Note Registrar issued in exchange
therefor or upon transfer thereof. Unless determined otherwise by the Company in accordance
with applicable law, an Individual Note Registrar issued upon transfer of or exchange for a
beneficial interest in the Global Note Registrar shall bear the Securities Legend.



     (n) Transfers of Individual Notes to the Global Notes. If a Holder of an Individual
Note wishes at any time to transfer such Note to a Person who wishes to take delivery thereof in
the form of a beneficial interest in the related Regulation S Global Note or the related Rule 144A
Global Note, such transfer may be effected only in accordance with the Applicable Procedures, and
this Section 4.02(n). Upon receipt by the Note Registrar at the Corporate Trust Office of
(1) the Individual Note to be transferred with an instrument of assignment and transfer, (2)
written instructions given in accordance with the Applicable Procedures from a DTC Participant
directing the Note Registrar to credit or cause to be credited to another specified DTC
Participant’s account a beneficial interest in such Regulation S Global Note or such Rule 144A
Global Note, as the case may be, in an amount equal to the denomination of the Individual Note to
be so transferred, (3) a written order given in accordance with the Applicable Procedures
containing information regarding the account of the DTC Participant (and, in the case of any
transfer pursuant to Regulation S, the Euroclear or Clearstream account, as the case may be) to be
credited with such beneficial interest, and (4) (x) if delivery is to be taken in the form of a
beneficial interest in the Regulation S Global Note, a certificate in the form of Exhibit H
hereto, given by the Beneficial Owner that is transferring such interest, if delivery is to be
taken in the form of a beneficial interest in the Regulation S Global Note or (y) a Transferee
Letter from the transferee of such interest to the effect that such transferee is a Qualified
Institutional Buyer who is a Qualified Purchaser, if delivery is to be taken in the form of a
beneficial interest in the Rule 144A Global Note, the Note Registrar shall cancel such Individual
Note, execute and deliver a new Individual Note for that portion, if any, of the denomination of
the Individual Note not so transferred, registered in the name of the Holder, and the Note
Registrar shall instruct DTC to increase the denomination of the Regulation S Global Note or the
Rule 144A Global Note, as the case may be, by the denomination of the Individual Note to be so
transferred, and to credit or cause to be credited to the account of the Person specified in such
instructions (who, in the case



32









 







of any increase in the Regulation S Global Note during the Distribution Compliance Period,
shall be a DTC Participant acting for or on behalf of Euroclear or Clearstream, or both, as the
case may be) a corresponding denomination of the Rule 144A Global Note or the Regulation S Global
Note, as the case may be.



     It is the intent of the foregoing that under no circumstances may an Institutional Accredited
Investor that is not a Qualified Institutional Buyer take delivery in the form of a beneficial
interest in a Global Note.



     (o) An exchange of a beneficial interest in a Global Note for an Individual Note or Notes, an
exchange of an Individual Note or Notes for a beneficial interest in a Global Note and an exchange
of an Individual Note or Notes for another Individual Note or Notes (in each case, whether or not
such exchange is made in anticipation of subsequent transfer, and in the case of the Global Notes,
so long as the Global Notes remain outstanding and are held by or on behalf of DTC), may be made
only in accordance with this Section 4.02 and in accordance with the rules of DTC and
Applicable Procedures.



     (p) (i) Upon acceptance for exchange or transfer of an Individual Note for a beneficial
interest in the Global Note as provided herein, the Note Registrar shall cancel such Individual
Note and shall (or shall request DTC to) endorse on the schedule affixed to the applicable Global
Note (or on a continuation of such schedule affixed to the Global Note and made a part thereof) an
appropriate notation evidencing the date of such exchange or transfer and an increase in the Note
balance of the Global Note equal to the Note balance of such Individual Note exchanged or
transferred therefor.




     (ii) Upon acceptance for exchange or transfer of a beneficial interest in the Global
Note for an Individual Note as provided herein, the Note Registrar shall (or shall request
DTC to) endorse on the schedule affixed to the Global Note (or on a continuation of such
schedule affixed to the Global Note and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the Note balance of the
Global Note equal to the Note balance of such Individual Note issued in exchange therefor or
upon transfer thereof.



     (q) The Securities Legend shall be placed on any Individual Note issued in exchange for or
upon transfer of another Individual Note or of a beneficial interest in the Global Note.



     (r) Subject to the restrictions on transfer and exchange set forth in this Section
4.02, the holder of any Individual Note may transfer or exchange the same in whole or in part
(in an initial Note balance equal to the minimum authorized denomination of $250,000 (or, in the
case of a Class E Note, in an initial Note balance equal to the minimum authorized denomination of
$1,000,000) or any integral multiple of $1,000 in excess thereof) by surrendering such Note at the
Corporate Trust Office, or at the office of any transfer agent, together with an executed
instrument of assignment and transfer satisfactory in form and substance to the Note Registrar in
the case of transfer and a written request for exchange in the case of exchange. The holder of a
beneficial interest in a Global Note may, subject to the rules and procedures of DTC, cause DTC (or
its nominee) to notify the Note Registrar in writing of a request for transfer or exchange of such
beneficial interest for an Individual Note or Notes. Following a proper request for transfer or
exchange, the Note Registrar shall, within five Business Days of such request made at such



33









 







Corporate Trust Office, cause the Indenture Trustee to authenticate and the Note Registrar to
deliver at such Corporate Trust Office, to the transferee (in the case of transfer) or holder (in
the case of exchange) or send by first class mail at the risk of the transferee (in the case of
transfer) or holder (in the case of exchange) to such address as the transferee or holder, as
applicable, may request, an Individual Note or Notes, as the case may require, for a like aggregate
Percentage Interest and in such authorized denomination or denominations as may be requested. The
presentation for transfer or exchange of any Individual Note shall not be valid unless made at the
Corporate Trust Office by the registered holder in person, or by a duly authorized
attorney–in–fact.



     (s) No transfer of any Note shall be made unless such transfer is exempt from the registration
requirements of the Securities Act and any applicable state securities laws or is made in
accordance with said Act and laws. No transfer of any Note shall be made if such transfer would
require the Issuer to register as an “investment company” under the 1940 Act. In the event of any
such transfer, unless such transfer is made in reliance upon Rule 144A under the Securities Act or
Regulation S under the Securities Act or is a transfer of the Class F Note to an Affiliate of the
Originator, (i) the Indenture Trustee may require a written Opinion of Counsel acceptable to and in
form and substance reasonably satisfactory to the Indenture Trustee that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis therefor, from said Act
and laws or is being made pursuant to said Act and laws, which Opinion of Counsel shall not be an
expense of the Indenture Trustee, the Issuer, or the Servicer and (ii) the Indenture Trustee shall
require the transferee to execute a Transferee Letter or the transferee is to execute the
applicable certification in the event of a transfer pursuant to Regulation S certifying to the
Issuer and the Indenture Trustee the facts surrounding such transfer, which Transferee Letter or
certification shall not be an expense of the Indenture Trustee, the Issuer or the Servicer. The
Holder of a Note desiring to effect such transfer shall, and by accepting a Note and the benefits
of this Indenture does hereby agree to, indemnify the Indenture Trustee, the Issuer, the Servicer
and the Initial Purchasers against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws. None of the Issuer, the Indenture
Trustee, the Servicer, the Trust Depositor or the Initial Purchasers intends or is obligated to
register or qualify any Note under the Securities Act or any state securities laws.



     (t) No Class E Note or Class F Note may be acquired or owned by any Person that is classified
for U.S. federal income tax purposes as a partnership, subchapter S corporation or grantor trust
unless (A) none of the direct or indirect beneficial owners of any interest in such Person have or
ever will have more than 50% of the value of its interest in such Person attributable to the
interest of such Person in any Class E Note, Class F Note or other interest (direct or indirect) in
the Issuer, and (B) it is not and will not be a principal purpose of the arrangement involving the
investment of such Person in any Class E Note or Class F Note to permit any partnership to satisfy
the 100 partner limitation of Treas. Reg. § 1.7704-1(h)(1)(ii);



     (u) No Class E Note or Class F Note (or interest therein) may be acquired, and no Holder of a
Class E Note or Class F Note may sell, transfer, assign, participate, pledge or otherwise dispose
of any Class E Note or Class F Note (or interest therein) or cause any Class E Note or Class F Note
(or interest therein) to be marketed, on or through (i) an “established securities market” within
the meaning of Section 7704(b) of the Code, including, without



34









 







limitation, an interdealer quotation system that regularly disseminates firm buy or sell
quotations or (ii) a “secondary market (or the substantial equivalent thereof)” within the meaning
of Section 7704(b)(2) of the Code, including a market wherein any Class E Note or Class F Note (or
interest therein) is regularly quoted by any person making a market in such interests and a market
wherein any person regularly makes available bid or offer quotes with respect to any Class E Note
or Class F Note (or interest therein) and stands ready to effect buy or sell transactions at the
quoted prices for itself or on behalf of others.



     (v) No Holder of a Class E Note or Class F Note may transfer its interest in any Class E Note
or Class F Note in an amount less than the minimum denomination of such Class E Note or Class F
Note, as the case may be.



     (w) Notwithstanding any other provision of this Agreement to the contrary, on the Closing
Date, the Indenture Trustee shall authenticate in the name of, and deliver to, the Trust Depositor,
the Class F Note in the form of a single Individual Note in an aggregate principal amount equal to
the Initial Class F Principal Balance. The Holder of the Class F Note shall initially be the Trust
Depositor. No transfer, sale, pledge or other disposition of one or more Class F Notes (a
“Transfer”) shall be made unless simultaneously with the Transfer (1) a proportionate
amount of Trust Certificates are Transferred so that the ratio of the Percentage Interest of the
Trust Certificates so Transferred to all Trust Certificates and the ratio of the Percentage
Interest of the Class F Notes so Transferred to all Class F Notes are equal, (2) the Transfers of
the Trust Certificates and Class F Notes referred to herein are made to the same Person, and (3)
the Percentage Interest of the Trust Certificates and Class F Notes, respectively, so transferred
is no less than ten (10%) percent.



     (x) The Class E Notes and the Class F Notes may only be owned by United States Persons (as
defined in Section 7701(a)(30) of the Code).



     (y) No Class A Note, Class B Note, Class C Note or Class D Note may be acquired directly or
indirectly, by, for, on behalf of or with any assets of an employee benefit plan as defined in
Section 3(3) of ERISA that is subject to Title I of ERISA, any plan to which Section 4975 of the
Code applies (collectively, a “Plan”) or any other plan or arrangement subject to any other
applicable law similar to ERISA or Section 4975 of the Code (“Similar Law”) unless it
represents or is deemed to represent that its acquisition and holding of the Class A Note, Class B
Note, Class C Note or Class D Note will not constitute or result in a non-exempt prohibited
transaction under part 4 of Title I of ERISA or Section 4975 of the Code or a violation of Similar
Law. No Class E Note or Class F Note may be acquired directly or indirectly, by, for, on behalf of
or with any assets of any Plan. Further, no Class E Note or Class F Note may be acquired directly
or indirectly, by, for, on behalf of or with any assets of any plan that is not subject to Title I
of ERISA or Section 4975 of the Code unless it represents or is deemed to represent that its
acquisition and holding of the Class E Note or Class F Note will not constitute or result in a
violation of Similar Law. In the case of an Individual Note, such representation shall be made in
a certification from the transferee to the Indenture Trustee; in the case of a Note other than an
Individual Note, the transferee shall be deemed to have made such representation.



35









 





     Section 4.03. Mutilated, Destroyed, Lost or Stolen Notes.



     Subject to UCC § 8–405, if (i) any mutilated Note is surrendered to the Indenture Trustee, or
the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of
any Note, and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be
required by it to hold the Issuer and the Indenture Trustee harmless, then, in the absence of
notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired
by a protected purchaser, the Issuer shall execute, and upon its request the Indenture Trustee
shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Note, a replacement Note; provided that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall be due and payable, or shall
have been called for repurchase, instead of issuing a replacement Note, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable or upon the Repurchase Date without surrender
thereof. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen
Note pursuant to the proviso to the preceding sentence, a protected purchaser of the original Note
in lieu of which such replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such
payment) from the Person to whom it was delivered or any Person taking such replacement Note from
such Person to whom such replacement Note was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture
Trustee in connection therewith.



     Upon the issuance of any replacement Note under this Section 4.03, the Issuer may
require the payment by the Holder of such Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Indenture Trustee) connected therewith.



     Every replacement Note issued pursuant to this Section 4.03 in replacement of any
mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual
obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.



     The provisions of this Section 4.03 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes.



     Section 4.04. Payment of Principal and Interest; Defaulted Interest.



     (a) The Notes shall accrue interest during each Interest Accrual Period on the basis of the
actual number of days elapsed during such Interest Accrual Period and a year assumed to consist of
360 days. Any installment of interest or principal, if any, payable on any Note which is
punctually paid or duly provided for by the Issuer on the applicable Payment Date shall be paid to
the Person in whose name such Note is registered on the Record Date, by check mailed first–class,
postage prepaid, to such Person’s address as it appears on the Note Register on such Record Date,
except that, unless Global Notes have been issued pursuant to Section 4.02, with respect to
Notes registered on the Record Date in the name of the nominee of DTC (initially,



36









 







such nominee to be Cede & Co.), such payment will be made by wire transfer in immediately
available funds to the account designated by such Person and except for the final installment of
principal payable with respect to such Note on a Payment Date or on the applicable Expected
Maturity Date and except for the Repurchase Price for any Note called for repurchase pursuant to
Section 10.01(a) which shall be payable as provided below. The funds represented by any
such checks returned undelivered shall be held in accordance with Section 3.03.



     (b) The principal of each Note shall be payable in installments on each Payment Date as
provided in the Sale and Servicing Agreement. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid, on the date on
which an Event of Default shall have occurred and be continuing, if the Indenture Trustee with the
consent of the Majority Noteholders have declared the Notes to be immediately due and payable in
the manner provided in Section 5.02. All principal payments among the Classes of Notes
shall be made in the order and priorities set forth herein and in the Sale and Servicing Agreement,
and all principal payments on the Notes of the same Class shall be made pro rata to the Noteholders
of such Class. The Indenture Trustee shall notify the Person in whose name a Note is registered at
the close of business on the Record Date preceding the Payment Date on which the Issuer expects
that the final installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Payment Date and shall specify that
such final installment will be payable only upon presentation and surrender of such Note and shall
specify the place where such Note may be presented and surrendered for payment of such installment.
Notices in connection with a repurchase of Notes shall be mailed to Noteholders as provided in
Section 10.02.



     (c) For so long as the Notes of any Class are listed on the Irish Stock Exchange and the rules
of such exchange shall so require, the Issuer will have a paying agent and transfer agent for such
securities in Ireland, and payments on and transfers or exchanges of interests in such Notes
(including partial interests therein) may be effected through such paying and transfer agent (or
any other paying and transfer agent); provided that all transfers and exchanges must be effected in
accordance with this Indenture. In addition, for so long as the Notes of any Class are listed on
the Irish Stock Exchange and the rules of such exchange shall so require, in the case of a transfer
or exchange of a physical instrument representing such security, a holder thereof may obtain a new
physical instrument from the paying agent and transfer agent in Ireland in accordance with this
Indenture.



     Section 4.05. Tax Treatment.



     (a) The Issuer has entered into this Indenture, and the Notes will be issued, with the
intention that, for federal, state and local income, business and franchise tax purposes, (i) the
Notes (other than the Class F Note) will qualify as indebtedness secured by the Indenture
Collateral and (ii) the Issuer shall not be treated as an association, taxable mortgage pool or
publicly traded partnership taxable as a corporation. The Issuer, by entering into this Indenture,
and each Noteholder (other than any Class F Noteholder), by the acceptance of any such Note (and
each beneficial owner of a Note, by its acceptance of an interest in the applicable Note), agree to
treat such Notes for federal, state and local income and franchise tax purposes as indebtedness of
the Issuer. Each Holder of such Note (other than any Class F Noteholder) agrees that it will cause
any beneficial owner of such Note acquiring an interest in a Note through it to comply with this
Indenture as to treatment of indebtedness under applicable tax law, as described



37









 







in this Section 4.05. The parties hereto agree that they shall not cause or permit
the making, as applicable, of any election under Treasury Regulation Section 301.7701–3 whereby the
Issuer or any portion thereof would be treated as a corporation for federal income tax purposes
and, except as required by the terms of this Indenture or Applicable Law, shall not file tax
returns or obtain any federal employer identification number for the Issuer, but shall treat the
Issuer as a security device or disregarded entity for federal income tax purposes. The provisions
of this Indenture shall be construed in furtherance of the foregoing intended tax treatment.



     (b) It is the intent of the Trust Depositor, the Servicer, the Class F Noteholders and the
Certificateholder that, (i) in the event that the Trust Certificate and the Class F Notes are owned
by a single Holder, for federal income tax purposes, the Issuer will be treated as a division of
such Holder, and such Holder, by acceptance of the Trust Certificate and the Class F Notes, agrees
to take no action inconsistent with such treatment and (ii) in the event that the Trust
Certificates and/or the Class F Notes are owned by more than one Holder, for federal income tax
purposes, the Issuer will be treated as a partnership, the partners of which are the
Certificateholders and the Class F Noteholders, and each Certificateholder and Class F Noteholder,
by acceptance of a Trust Certificate and a Class F Notes, respectively, agrees to treat the Trust
Certificate and the Class F Notes as equity and to take no action inconsistent with such treatment.



     Section 4.06. Satisfaction and Discharge of Indenture.



     This Indenture shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated, destroyed, lost or
stolen Notes, (iii) rights of Noteholders to receive payments of principal thereof and interest
thereon, (iv) Sections 3.03, 3.04, 3.06, 3.10, 3.19,
3.21, 3.22, 4.05, 6.07, 11.15 and the second sentence of
11.16, (v) the rights, obligations and immunities of the Indenture Trustee hereunder
(including the rights of the Indenture Trustee under Section 6.07 and the obligations of
the Indenture Trustee under Section 4.07) and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable
to all or any of them, and the Indenture Trustee, on written demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to the Notes, when:




     (A) either




(1) all Notes of such Series theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been replaced or paid
as provided in Section 4.03 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the Issuer
and thereafter repaid to the Issuer or discharged from such trust, as provided in
Section 3.03) have been delivered to the Indenture Trustee for cancellation;
or




(2) all Notes not theretofore delivered to the Indenture Trustee for cancellation




(i) have become due and payable, or



38









 






     (ii) are to be called for repurchase within one year under arrangements satisfactory to
the Indenture Trustee for the giving of notice of repurchase by the Indenture Trustee in the
name, and at the expense, of the Issuer,




and the Issuer, in the case of clauses (2)(i) or (ii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee cash or
direct obligations of or obligations guaranteed by the United States of America
(which will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Indenture Trustee for cancellation when
due to the Final Maturity Date therefor or Repurchase Date (if Notes shall have been
called for repurchase pursuant to Section 10.01), as the case may be; and




     (B) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate
meeting the applicable requirements of Section 11.01 and, subject to
Section 11.01, stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture with respect to the
Notes have been complied with.



     Section 4.07. Application of Trust Money.



     All moneys deposited with the Indenture Trustee pursuant to Section 4.06 hereof shall
be held in trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of Notes for the payment or repurchase of which such moneys have been
deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.



     Section 4.08. Repayment of Moneys Held by Paying Agent.



     In connection with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under the provisions of
this Indenture with respect to such Notes shall, upon demand of the Issuer, be paid to the
Indenture Trustee to be held and applied according to Section 3.05 and thereupon such
Paying Agent shall be released from all further liability with respect to such moneys.



ARTICLE V

EVENTS OF DEFAULT; REMEDIES




     Section 5.01. Events of Default.



     Any one of the following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any administrative or governmental
body) shall constitute an Event of Default:



39









 






     (i) a failure to pay any accrued interest on any Payment Date and such failure
continues unremedied for two Business Days;




     (ii) failure to reduce the Outstanding Principal Balance of the Class A Notes, the
Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes to zero by the
Final Maturity Date;




     (iii) failure to pay the Repurchase Price to the Noteholders on the Repurchase Date in
the event of an Optional Repurchase pursuant to Section 10.01 unless such Optional
Repurchase has been withdrawn in accordance with Section 10.01;




     (iv) failure on the part of the Originator to make any payment or deposit required
under the Sale and Servicing Agreement within two Business Days after the date the payment
or deposit is required to be made;




     (v) there occurs a default in the observance or performance in any material respect of
any covenant or agreement of the Originator, the Trust Depositor or the Issuer made in the
Sale and Servicing Agreement or this Indenture, or any representation or warranty of the
Originator, the Trust Depositor or the Issuer made in the Sale and Servicing Agreement or
this Indenture proving to have been incorrect in any material respect as of the time when
the same shall have been made and such default or incorrect representation or warranty has a
material adverse effect on the rights of the Noteholders, and such default shall continue or
not be cured, or the circumstance or condition in respect of which such representation or
warranty was incorrect shall not have been eliminated or otherwise cured, for a period of 30
days (if such failure can be remedied) after the first to occur of (i) actual knowledge
thereof by a Responsible Officer of the Originator or the Trust Depositor or (ii) the
delivery to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee,
by any Noteholder, a written notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such notice is a notice of default
hereunder;




     (vi) either the Issuer or the Loan Pool is required to be registered as an “investment
company” under the 1940 Act;




     (vii) there occurs the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Trust Depositor, the Issuer or any
substantial part of the Indenture Collateral in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Trust Depositor, the Issuer or for any substantial part of either Indenture
Collateral, or ordering the winding–up or liquidation of the Trust Depositor’s or the
Issuer’s affairs, and such decree or order shall remain unstayed and in effect for a period
of 30 consecutive days;




     (viii) there occurs the commencement by the Trust Depositor or the Issuer of a
voluntary case under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by the Trust Depositor or the Issuer to the
entry of an order for relief in an involuntary case under any such law, or the



40









 






consent by the Trust Depositor or the Issuer to the appointment or taking possession by
a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Trust Depositor or the Issuer or for any substantial part of the assets of the Indenture
Collateral, or the making by the Trust Depositor or the Issuer of any general assignment for
the benefit of creditors, or the failure by the Trust Depositor or the Issuer generally to
pay its debts as such debts become due, or the taking of any action by the Trust Depositor
or the Issuer in furtherance of any of the foregoing; or




     (ix) the Indenture Trustee, on behalf of the Noteholders, shall fail to have a valid
and perfected first priority security interest in the Indenture Collateral, except as
otherwise expressly permitted to be released in accordance with the applicable Transaction
Document and such failure to have a perfected first priority security interest shall have a
material adverse effect on the Noteholders.



     The Issuer shall deliver to the Indenture Trustee and the Rating Agencies, within two Business
Days after the occurrence thereof, written notice in the form of an Officer’s Certificate of any
Default, its status and what action the Issuer is taking or proposes to take with respect thereto.



     Section 5.02. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default should occur and be continuing, (other than an Event of Default
specified in Section 5.01(vii) or 5.01(viii)), then and in every such case the
Indenture Trustee may, and shall at the direction of the Majority Noteholders, declare the Notes to
be immediately due and payable, by a notice in writing to the Issuer and the Rating Agencies (and
to the Indenture Trustee if given by Noteholders), and upon any such declaration the unpaid
principal amount of such Notes, together with accrued and unpaid interest thereon through the date
of acceleration, shall become immediately due and payable. If an Event of Default specified in
Section 5.01(vii) or Section 5.01(viii) occurs, the unpaid principal amount of the
Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.



     At any time after such declaration of acceleration of maturity has been made and before a
judgment or decree for payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, the Majority Noteholders, by written notice to the
Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences if:




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




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




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



41









 






     (B) all Events of Default, other than the nonpayment of the principal of the
Notes that has become due solely by such acceleration, have been cured or waived as
provided in Section 5.12.



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



     Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee.



     (a) The Issuer covenants that if (i) default is made in the payment of any interest on any
Note when the same becomes due and payable, and such default continues for a period of five
Business Days, or (ii) default is made in the payment of the principal of or any installment of the
principal of any Note when the same becomes due and payable, and such default continues for a
period of two Business Days, the Issuer will, upon demand of the Indenture Trustee, pay to it, for
the benefit of the Noteholders, the whole amount then due and payable on the Notes for principal
and interest, with interest upon the overdue principal, and in addition thereto such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and
counsel.



     (b) In case the Issuer shall fail forthwith to pay such amounts upon such demand, the
Indenture Trustee, in its own name and as trustee of an express trust, with the consent of the
Majority Noteholders and subject to the provisions of Section 11.17 hereof may institute a
Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to
judgment or final decree, and may enforce the same against the Issuer or other obligor upon the
Notes and collect in the manner provided by law out of the Indenture Collateral, wherever situated,
the moneys adjudged or decreed to be payable.



     (c) If an Event of Default occurs and is continuing, the Indenture Trustee subject to the
provisions of Section 11.17 hereof may, as more particularly provided in Section
5.04, in its discretion, proceed to protect and enforce its rights and the rights of the
Noteholders and by such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture Trustee by this
Indenture or by law.



     (d) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes
or any Person having or claiming an ownership interest in the Indenture Collateral, Proceedings
under Title 11 of the United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken
possession of the Issuer or its property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other obligor upon the Notes, or to the
creditors or property of the Issuer or such other obligor, the Indenture Trustee, irrespective of
whether the principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture



42









 







Trustee shall have made any demand pursuant to the provisions of this Section 5.03,
shall be entitled and empowered, by intervention in such Proceedings or otherwise:




     (i) to file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture Trustee (including
any claim for reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement
of all reasonable expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;




     (ii) unless prohibited by applicable law and regulations, to vote on behalf of the
Holders of Notes in any election of a trustee, a standby trustee or Person performing
similar functions in any such Proceedings;




     (iii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute all amounts received with respect to the claims of the
Noteholders and of the Indenture Trustee on their behalf;




     (iv) to file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Indenture Trustee or the Noteholders allowed in
any judicial proceedings relative to the Issuer, its creditors and its property; and




     (v) to participate as a member, voting or otherwise, of any official committee of
creditors appointed in such matter;


and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding
is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee, and, in
the event that the Indenture Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result
of negligence or bad faith.




     (e) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize
or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar Person.



     (f) All rights of action and of asserting claims under this Indenture, or under any of the
Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the
production thereof in any trial or other Proceedings relative thereto, and any such action or



43









 







proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the Holders of the
Notes.



     (g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving
the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a
party), the Indenture Trustee shall be held to represent all the Holders of the Notes, and it shall
not be necessary to make any Noteholder a party to any such Proceedings.



     (h) Notwithstanding anything to the contrary contained in this Indenture (including, without
limitation, Sections 5.04(a), 5.10 and 5.11), if the Issuer fails to
perform its obligations under Section 10.01 when and as due, the Indenture Trustee shall,
at the direction of the Noteholders evidencing 66 2/3% of the aggregate Outstanding Principal
Balance of each Class of Offered Notes (each acting as a separate Class), proceed to protect and
enforce its rights and the rights of the Noteholders by such appropriate proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such rights, whether for
specific performance of any covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy or legal or equitable right vested
in the Indenture Trustee by this Indenture or by law.



     Section 5.04. Remedies; Priorities.



     (a) If an Event of Default shall have occurred and be continuing, subject to the provisions of
Section 11.17 hereof, the Indenture Trustee may do one or more of the following (subject to
Section 5.05 and Section 5.15):




     (i) institute Proceedings in its own name and as trustee of an express trust for the
collection of all amounts then payable on the Notes or under this Indenture with respect
thereto, whether by declaration or otherwise, and all amounts payable under the Sale and
Servicing Agreement, enforce any judgment obtained, and collect from the Issuer and any
other obligor upon such Notes moneys adjudged due;




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




     (iii) exercise any remedies of a secured party under the UCC and take any other
appropriate action to protect and enforce the rights and remedies of the Indenture Trustee
and the Holders of the Notes; and




     (iv) sell the Indenture Collateral or any portion thereof or rights or interest
therein;


provided that the Indenture Trustee may not sell or otherwise liquidate the Indenture Collateral
following an Event of Default, unless (A) (i) prior to the payment in full of each Class of Offered
Notes, the Noteholders evidencing 100% of the aggregate Outstanding Principal Balance of all
Classes of Offered Notes consent thereto, (ii) from and after the payment in full of each Class of


44









 






Offered Notes, the Class F Noteholders evidencing 100% of the aggregate Outstanding Principal
Balance of the Class F Notes consents thereto, (B) the proceeds of such sale or liquidation
distributable to the Noteholders are sufficient to discharge in full all amounts then due and
unpaid upon the Notes for principal and interest, or (C) the Indenture Trustee determines that the
Loans will not continue to provide sufficient funds for the payment of principal of and interest on
the Notes, in accordance with their respective terms as they would have become due if the Notes had
not been declared due and payable, and the Indenture Trustee obtains the consent of (i) prior to
the payment in full of each Class of Offered Notes, the Noteholders evidencing 66 2/3% of the
aggregate Outstanding Principal Balance of each Class of Offered Notes (each acting as a separate
Class), and (ii) from and after the payment in full of each Class of Offered Notes, the Class F
Noteholders evidencing 66 2/3% of the aggregate Outstanding Principal Balance of the Class F Notes.
In determining such sufficiency or insufficiency with respect to clauses (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such proposed action and
as to the sufficiency of the Indenture Collateral for such purpose. Notwithstanding the foregoing,
so long as a Servicer Default has not occurred, any Sale of the Indenture Collateral shall be made
subject to the continued servicing of the Loans by the Servicer as provided in the Sale and
Servicing Agreement.




     (b) If the Indenture Trustee collects any money or property pursuant to this Article V, it
shall pay out the money or property as set forth in Section 7.05 of the Sale and Servicing
Agreement.



     The Indenture Trustee may fix a record date and Payment Date for any payment to Noteholders
pursuant to this Section 5.04. At least five days before such record date, the Issuer
shall mail to each Noteholder and the Indenture Trustee a notice that states the record date, the
Payment Date and the amount to be paid.



     Section 5.05. Optional Preservation of the Indenture Collateral.



     If the Notes have been declared to be due and payable under Section 5.02 following an
Event of Default and such declaration and its consequences have not been rescinded and annulled,
the Indenture Trustee may, but need not, elect to maintain possession of the Indenture Collateral.
It is the desire of the parties hereto and the Noteholders that there be at all times sufficient
funds for the payment of principal of and interest on the Notes and other obligations of the Issuer
and the Indenture Trustee shall take such desire into account when determining whether or not to
maintain possession of the Indenture Collateral. In determining whether to maintain possession of
the Indenture Collateral, the Indenture Trustee may, but need not, obtain and rely upon an opinion
of an Independent investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Indenture Collateral for such
purpose.



     Section 5.06. Limitation of Suits.



     No Holder of any Note shall have any right to institute any Proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless and subject to the provisions of Section 11.17 hereof:



45









 






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




     (ii) (A) prior to the payment in full of the Offered Notes, the Noteholders evidencing
25% of the aggregate Outstanding Principal Balance of all Classes of Offered Notes have made
written request to the Indenture Trustee to institute such Proceeding in respect of such
Event of Default in its own name as Indenture Trustee hereunder and (B) from and after the
payment in full of the Offered Notes, the Class F Noteholders evidencing 25% of the
aggregate Outstanding Principal Balance of the Class F Notes have made written request to
the Indenture Trustee to institute such proceeding in respect of such Event of Default in
its own name as Indenture Trustee hereunder;




     (iii) such Holder or Holders have offered to the Indenture Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in complying with such request;




     (iv) the Indenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute such Proceedings; and




     (v) (A) prior to the payment in full of the Offered Notes, no direction inconsistent
with such written request has been given to the Indenture Trustee during such 60 day period
by the Holders of a majority of the Outstanding Principal Balance of the Offered Notes and
(B) from and after payment in full of the Offered Notes, no direction inconsistent with such
written request has been given to the Indenture Trustee during such 60 day period by the
Holders of a majority of the Outstanding Principal Balance of the Class F Notes.


It is understood and intended that no one or more Holders of Notes shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders of Notes or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture, except in the
manner herein provided.




     In the event the Indenture Trustee shall receive conflicting or inconsistent requests and
indemnity from two or more groups of Holders of Notes, each representing less than a majority of
the Aggregate Outstanding Principal Balance, the Indenture Trustee in its sole discretion may
determine what action, if any, shall be taken, notwithstanding any other provisions of this
Indenture.



     Section 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest.



     Notwithstanding any other provisions in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of the principal of and interest, if
any, on such Note on or after the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of repurchase, on or after the Repurchase Date) and such right shall not
be impaired without the consent of such Holder.



46









 





     Section 5.08. Restoration of Rights and Remedies.



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



     Section 5.09. Rights and Remedies Cumulative.



     No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.



     Section 5.10. Delay or Omission Not a Waiver.



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



     Section 5.11. Control by Noteholders.



     The Majority Noteholders shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the
Notes or exercising any trust or power conferred on the Indenture Trustee; provided that:




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




     (ii) subject to the express terms of Section 5.04, any direction to the
Indenture Trustee to sell or liquidate the Indenture Collateral shall be by Holders of the
Notes representing (A) prior to the payment in full of the Offered Notes, 100% of the
aggregate Outstanding Principal Balance of all Classes of Offered Notes and (B) from and
after the payment in full of each Class of Offered Notes, 100% of the aggregate Outstanding
Principal Balance of the Class F Notes;




     (iii) if the conditions set forth in Section 5.05 have been satisfied and the
Indenture Trustee elects to retain the Indenture Collateral pursuant to such Section, then
any direction to the Indenture Trustee to sell or liquidate the Indenture Collateral shall
be of no force and effect unless (A) prior to the payment in full of each Class of Offered



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Notes, the Noteholders evidencing 100% of the aggregate Outstanding Principal Balance
of each Class of Offered Notes consent thereto and (B) from and after the payment in full of
each Class of Offered Notes, the Class F Noteholders evidencing 100% of the aggregate
Outstanding Principal Balance of the Class F Notes consents thereto; and




     (iv) the Indenture Trustee may take any other action deemed proper by the Indenture
Trustee that is not inconsistent with such direction.



     Notwithstanding the rights of Noteholders set forth in this Section 5.11, subject to
Section 6.01, the Indenture Trustee need not take any action that it determines might
involve it in liability or might materially adversely affect the rights of any Noteholders not
consenting to such action.



     Section 5.12. Waiver of Past Defaults.



     Prior to the declaration of the acceleration of the maturity of the Notes as provided in
Section 5.02, the Majority Noteholders may waive any past Event of Default and its
consequences except an Event of Default with respect to payment of principal of or interest on any
of the Notes or in respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the Holder of each Note. In the case of any such waiver, the Issuer, the
Indenture Trustee and the Noteholders shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or other Event of
Default or impair any right consequent thereto.



     Upon any such waiver, any Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Event of Default or impair any right consequent thereto.



     Section 5.13. Undertaking for Costs.



     All parties to this Indenture agree, and each Holder of any Note by such Holder’s acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the
Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against
any party litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.13 shall not
apply to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any
Noteholder, or group of Noteholders, in each case holding in the aggregate more than 25% of the
Aggregate Outstanding Principal Balance or (c) any suit instituted by any Noteholder for the
enforcement of the payment of principal of or interest on any Note on or after the respective due
dates expressed in such Note and in this Indenture.



     Section 5.14. Waiver of Stay or Extension Laws.



     The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead or in any manner whatsoever, claim or take the benefit or advantage of, any



48









 







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



     Section 5.15. Sale of Indenture Collateral.



     (a) The power to effect any sale or other disposition (a “Sale”) of any portion of a
Indenture Collateral pursuant to Section 5.04 is expressly subject to the provisions of
Section 5.05 and this Section 5.15. The power to effect any such Sale shall not be
exhausted by any one or more Sales as to any portion of the Indenture Collateral remaining unsold,
but shall continue unimpaired until the entire Indenture Collateral shall have been sold or all
amounts payable on the Notes and under this Indenture shall have been paid. The Indenture Trustee
hereby expressly waives its right to any amount fixed by law as compensation for any Sale.



     (b) The Indenture Trustee shall not in any private Sale sell the Indenture Collateral, or any
portion thereof, unless the Holders of 100% of the aggregate Outstanding Principal Balance of each
Class of Offered Notes consent to or direct the Indenture Trustee to make such Sale and:




     (i) the proceeds of such Sale would be not less than the entire amount which would be
payable to the Noteholders under the Notes in full payment thereof on the Payment Date next
succeeding the date of such Sale, or




     (ii) the Indenture Trustee determines, in its sole discretion, that the conditions for
retention of the Indenture Collateral set forth in Section 5.05 cannot be satisfied
(in making any such determination, the Indenture Trustee may rely upon an opinion of an
Independent investment banking or accounting firm obtained and delivered as provided in
Section 5.05, and the Majority Noteholders consent to such Sale, which consent will
not be unreasonably withheld).



     (c) In connection with a Sale of all or any portion of the Indenture Collateral:




     (i) any Holder or Holders of Notes may bid for and purchase the property offered for
Sale, and upon compliance with the terms of Sale may hold, retain and possess and dispose of
such property, without further accountability, and may, in paying the purchase money
therefor, deliver any Notes or claims for interest thereon in lieu of cash up to the amount
which shall, upon distribution of the net proceeds of such Sale, be payable thereon, and
such Notes, in case the amounts so payable thereon shall be less than the amount due
thereon, shall be returned to the Holders thereof after being appropriately stamped to show
such partial payment;




     (ii) the Indenture Trustee may bid for and acquire the property offered for Sale in
connection with any Sale thereof, and, subject to any requirements of, and to the extent
permitted by, Applicable Law in connection therewith, may purchase all or any portion of the
Indenture Collateral in a private sale, and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting the gross Sale price against the sum of (A)



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the amount which would be distributable to the Holders of the Notes as a result of such
Sale in accordance with Section 5.04(b) on the Payment Date next succeeding the date
of such Sale and (B) the expenses of the Sale and of any Proceedings in connection therewith
which are reimbursable to it, without being required to produce the Notes in order to
complete any such Sale or in order for the net Sale price to be credited against such Notes,
and any property so acquired by the Indenture Trustee shall be held and dealt with by it in
accordance with the provisions of this Indenture;




     (iii) the Indenture Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Indenture Collateral in
connection with a Sale thereof;




     (iv) the Indenture Trustee is hereby irrevocably appointed the agent and
attorney–in–fact of the Issuer to transfer and convey its interest in any portion of the
Indenture Collateral in connection with a Sale thereof, and to take all action necessary to
effect such Sale; and




     (v) no purchaser or transferee at such a Sale shall be bound to ascertain the Indenture
Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.



     Section 5.16. Action on Notes.



     The Indenture Trustee’s right to seek and recover judgment on the Notes or under this
Indenture shall not be affected by the seeking, obtaining or application of any other relief under
or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by
the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon
any portion of the Indenture Collateral or upon any of the assets of the Issuer. Any money or
property collected by the Indenture Trustee shall be applied in accordance with Section
5.04(b).



     Section 5.17. Performance and Enforcement of Certain Obligations.



     (a) Promptly following a request from the Indenture Trustee to do so, the Issuer shall take
all such lawful action as the Indenture Trustee may request to compel or secure the performance and
observance by the Trust Depositor and the Servicer, as applicable, of each of their obligations to
the Issuer under or in connection with the Transaction Documents, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under or in connection
with the Transaction Documents to the extent and in the manner directed by the Indenture Trustee,
including the transmission of notices of default on the part of the Trust Depositor or the Servicer
thereunder and the institution of legal or administrative actions or proceedings to compel or
secure performance by the Trust Depositor or the Servicer of each of their obligations under the
Transaction Documents.



     (b) If a Servicer Default has occurred and is continuing, the Indenture Trustee, at the
direction (which direction shall be in writing or by telephone (confirmed in writing promptly
thereafter)) of (i) prior to the payment in full of each Class of Offered Notes, the Noteholders



50









 







evidencing 66 2/3% of the aggregate Outstanding Principal Balance of each Class of Offered
Notes (each acting as a separate Class) consents thereto and (ii) from and after the payment in
full of each Class of Offered Notes, the Class F Noteholders evidencing 66 2/3% of the aggregate
Outstanding Principal Balance of the Class F Notes consents thereto, shall exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Servicer under or in connection
with the Sale and Servicing Agreement, including the right or power to take any action to compel or
secure performance or observance by the Servicer, of its obligations to the Issuer thereunder and
to give any consent, request, notice, direction, approval, extension or waiver under the Sale and
Servicing Agreement, and any right of the Issuer to take such action shall not be suspended.



ARTICLE VI

THE INDENTURE TRUSTEE




     Section 6.01. Duties of Indenture Trustee.



     (a) If an Event of Default has occurred and is continuing, the Indenture Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs with respect to the Indenture Collateral.



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




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




     (ii) in the absence of bad faith on its part, the Indenture Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to
the requirements of this Indenture; however, the Indenture Trustee shall examine the
certificates and opinions to determine whether or not they conform to the requirements of
this Indenture.



     (c) The Indenture Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:




     (i) this paragraph does not limit the effect of paragraph (b) of this
Section 6.01;




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




     (iii) the Indenture Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant to
Section 5.11.



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     (d) Every provision of this Indenture that in any way relates to the Indenture Trustee is
subject to paragraphs (a), (b), (c), (d) and (g) of this
Section 6.01.



     (e) The Indenture Trustee shall not be liable for interest on any money received by it except
as the Indenture Trustee may agree in writing with the Issuer.



     (f) Money held in trust by the Indenture Trustee need not be segregated from other funds
except to the extent required by law or the terms of this Indenture or the Sale and Servicing
Agreement.



     (g) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture, to expend or risk its own funds or otherwise incur financial
liability or to honor the request or direction of any of the Noteholders pursuant to this
Indenture, unless the Noteholders shall have offered to the Indenture Trustee reasonable security
or indemnity against the costs, expenses, and liabilities that might be incurred by it in
compliance with the request or direction.



     (h) Every provision of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee shall be subject to the provisions of this
Section 6.01.



     (i) The Indenture Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer assigned to and working in the Indenture Trustee’s Corporate Trust Office has
actual knowledge thereof.



     Section 6.02. Rights of Indenture Trustee.



     (a) The Indenture Trustee may rely on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Indenture Trustee need not investigate any fact
or matter stated in the document.



     (b) Before the Indenture Trustee acts or refrains from acting, it may require an Officer’s
Certificate, or, with respect to legal matters, an Opinion of Counsel. The Indenture Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s
Certificate or Opinion of Counsel.



     (c) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or a custodian or nominee,
and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of,
or for the supervision of, any such agent, attorney, custodian or nominee appointed with due care
by it hereunder.



     (d) The Indenture Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers; provided that the
Indenture Trustee’s conduct does not constitute willful misconduct, negligence or bad faith.



     (e) The Indenture Trustee may consult with counsel, and the advice or opinion of counsel with
respect to legal matters relating to this Indenture and the Notes shall be full and



52









 







complete authorization and protection from liability in respect to any action taken, omitted
or suffered by it hereunder in good faith and in accordance with the advice or opinion of such
counsel.



     (f) The Indenture Trustee shall not be bound to make any investigation into the performance of
the Issuer or the Servicer under this Indenture or any other Transaction Document or into the
matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other document, but the Indenture Trustee, in its
discretion, may make any further inquiry or investigation into those matters that it deems
appropriate, and if the Indenture Trustee determines to inquire further, it shall be entitled to
examine the books, records and premises of the Issuer and the Servicer, personally or by agent or
attorney.



     (g) If the Indenture Trustee is also acting as Paying Agent or as Note Registrar, the rights
and protections afforded to the Indenture Trustee pursuant to the Article shall also be afforded to
it in such additional capacities.



     Section 6.03. Individual Rights of Indenture Trustee.



     The Indenture Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same rights it would
have if it were not Indenture Trustee. Any Note Registrar, co–registrar, Paying Agent or co–paying
agent may do the same with like rights. However, the Indenture Trustee must comply with
Section 6.11.



     Section 6.04. Indenture Trustee’s Disclaimer.



     The Indenture Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Sale and Servicing Agreement, the Trust Agreement or
any other Transaction Document, the validity or sufficiency of any security interest intended to be
created or the characterization of the Notes for tax purposes or the Notes, it shall not be
accountable for the Issuer’s use of the proceeds from the Notes, and it shall not be responsible
for any statement of the Issuer in the Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Indenture Trustee’s certificate of authentication.



     Section 6.05. Notice of Event of Default.



     The Indenture Trustee shall mail to each Noteholder and the Owner Trustee notice of an Event
of Default within 30 days after the Indenture Trustee has actual knowledge thereof in accordance
with Section 6.01. Except in the case of an Event of Default in payment of principal of or
interest on any Note, the Indenture Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice is in the
interests of Noteholders.



     Section 6.06. Reports by Indenture Trustee to Holders and S&P.



     The Indenture Trustee shall deliver to each Noteholder such information as may be required to
enable such Noteholder to prepare its federal and state income tax returns. In



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addition, upon the Issuer’s or a Noteholder’s written request, the Indenture Trustee shall
promptly furnish information reasonably requested by the Issuer or such Noteholder that is
reasonably available to the Indenture Trustee to enable the Issuer or such Noteholder to perform
its federal and state income tax reporting obligations.



     The Indenture Trustee shall not be responsible for any tax reporting, disclosure, record
keeping or list maintenance requirements of the Issuer under Internal Revenue Code sections
6011(a), 6111(d) or 6112, including, but not limited to, the preparation of IRS Form 8886 pursuant
to Treasury Regulations Section 1.6011-4(d) or any successor provision and any required list
maintenance under Treasury Regulations Section 301.6112-1 or any successor provision.



     Upon the written request of S&P, the Indenture Trustee shall promptly furnish such information
as is in the Indenture Trustee’s possession or that is reasonably available to the Indenture
Trustee as S&P shall reasonably request and copies of any reports or notices that the Indenture
Trustee may receive in the course of carrying out its duties hereunder.



     Section 6.07. Compensation and Indemnity.



     The Issuer shall or shall cause the Trust Depositor to pay to the Indenture Trustee on each
Payment Date such reasonable compensation for its services pursuant to a separate agreement between
the Indenture Trustee and the Trust Depositor. The Indenture Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer shall or shall
cause the Trust Depositor to reimburse the Indenture Trustee for all reasonable out–of–pocket
expenses incurred or made by it, including costs of collection, in addition to the compensation for
its services. Such expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Indenture Trustee’s agents, counsel, accountants and experts. The Issuer shall
or shall cause the Trust Depositor to indemnify the Indenture Trustee against any and all loss,
liability or expense (including attorneys’ fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder. The Indenture Trustee
shall notify the Issuer and the Trust Depositor promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Trust Depositor shall
not relieve the Issuer or the Trust Depositor of its obligations hereunder or under the Trust
Agreement. Neither the Issuer nor the Trust Depositor need reimburse any expense or indemnify
against any loss, liability or expense incurred by the Indenture Trustee through the Indenture
Trustee’s own willful misconduct, negligence or bad faith.



     The Indenture Trustee hereby agrees not to cause the filing of a petition in bankruptcy,
insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or
hereafter in effect against the Issuer for the non-payment to the Indenture Trustee of any amounts
provided by this Section 6.07 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 Notes issued under
this Indenture.



     The amounts payable to the Indenture Trustee pursuant to this Section 6.07 shall not,
except as provided by Section 7.05 of the Sale and Servicing Agreement, exceed on any Distribution
Date the limitation on the amount thereof described in such Section 7.05 for such Distribution
Date; provided that (i) the Indenture Trustee shall not institute any proceeding for



54









 







payment of any amount payable hereunder except in connection with an action pursuant to
Section 5.03 or 5.04 for the enforcement of the lien of this Indenture for the
benefit of the Secured Parties and (ii) the Indenture Trustee may only seek to enforce payment of
such amounts in conjunction with the enforcement of the rights of the Secured Parties in the manner
set forth in Section 5.04.



     The Indenture Trustee shall receive amounts pursuant to this Section 6.07 and Section
7.05 of the Sale and Servicing Agreement in accordance with the Priority of Payments, and only to
the extent that the payment thereof would not result in an Event of Default and the failure to pay
such amounts to the Indenture Trustee will not, by itself, constitute an Event of Default. Subject
to Section 6.08, the Indenture Trustee shall continue to serve as Indenture Trustee under
this Indenture notwithstanding the fact that the Indenture Trustee shall not have received amounts
due it hereunder and hereby agrees not to cause the filing of a petition in bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in
effect against the Issuer for the nonpayment to the Indenture Trustee of any amounts provided by
this Section 6.07 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 Notes issued under this
Indenture.



     The Issuer’s payment obligations to the Indenture Trustee pursuant to this Section
6.07 shall survive the discharge of this Indenture. When the Indenture Trustee incurs expenses
after the occurrence of an Event of Default specified in clauses (vii) or (viii) of
the definition of “Event of Default” with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.



     Section 6.08. Replacement of Indenture Trustee.



     No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the successor Indenture
Trustee pursuant to this Section 6.08. The Indenture Trustee may resign at any time by so
notifying the Issuer. The Majority Noteholders or the Issuer, with the written consent of the
Majority Noteholders, may remove the Indenture Trustee by so notifying the Indenture Trustee and
the Rating Agencies in writing and may appoint a successor Indenture Trustee. The Issuer shall
remove the Indenture Trustee if:




     (i) the Indenture Trustee fails to comply with Section 6.11;




     (ii) the Indenture Trustee is adjudged a bankrupt or insolvent;




     (iii) a receiver or other public officer takes charge of the Indenture Trustee or its
property;




     (iv) the Indenture Trustee otherwise becomes incapable of acting; or




     (v) the Indenture Trustee defaults in any of its obligations under the Transaction
Documents and such default is not cured within 30 days after a Responsible Officer of the
Indenture Trustee receives written notice of such default.




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     If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of
Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as
the retiring Indenture Trustee), the Issuer shall promptly appoint a successor Indenture Trustee.



     A successor Indenture Trustee shall deliver a written acceptance of its appointment to the
retiring Indenture Trustee and to the Issuer. Thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. No successor Indenture
Trustee shall accept appointment as provided in this Section 6.08 unless at the time of
such acceptance such Person shall be eligible under the provisions of Section 6.11. The
successor Indenture Trustee shall mail a notice of its succession to the Noteholders. The retiring
Indenture Trustee shall promptly transfer all property (including all Indenture Collateral) held by
it as Indenture Trustee to the successor Indenture Trustee and shall execute and deliver such
instruments and such other documents as may reasonably be required to more fully and certainly vest
and confirm in the successor Indenture Trustee all such rights, powers, duties and obligations.



     If a successor Indenture Trustee does not take office within 60 days after the retiring
Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuer or the Majority
Noteholders, may petition any court of competent jurisdiction for the appointment of a successor
Indenture Trustee.



     If the Indenture Trustee fails to comply with Section 6.11, any Noteholder may
petition any court of competent jurisdiction for the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee.



     Notwithstanding the replacement of the Indenture Trustee pursuant to this Section
6.08, the Issuer’s obligations under Section 6.07 shall continue for the benefit of the
retiring Indenture Trustee.



     Upon acceptance of appointment by a successor Indenture Trustee as provided in this
Section 6.08, the Servicer shall mail notice of such succession hereunder to all Holders of
Notes at their addresses as shown in the Note Register. If the Servicer fails to mail such notice
within ten days after acceptance of appointment by the successor Indenture Trustee, the successor
Indenture Trustee shall cause such notice to be mailed at the expense of the Servicer.



     Section 6.09. Successor Indenture Trustee by Merger.



     If the Indenture Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any further act shall be
the successor Indenture Trustee; provided that such corporation or banking association shall be
otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agencies prior written notice of any such transaction.



     In case at the time such successor or successors by merger, conversion or consolidation to the
Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have
been authenticated but not delivered, any such successor to the Indenture Trustee may



56









 







adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been authenticated, any
successor to the Indenture Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Indenture Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the Notes or in this
Indenture provided that the certificate of the Indenture Trustee shall have.



     Section 6.10. Appointment of Co–Indenture Trustee or Separate Indenture Trustee.



     (a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of
meeting any legal requirement of any jurisdiction in which any part of the Indenture Collateral may
at the time be located, the Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons, to act as a co–trustee or co–trustees, or separate
trustee or separate trustees, of all or any part of the Indenture Collateral, and to vest in such
Person or Persons, in such capacity and for the benefit of the Noteholders, such interest to the
Indenture Collateral, or any part hereof, and, subject to the other provisions of this Section
6.10, such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider
necessary or desirable. No co–trustee or separate trustee hereunder shall be required to meet the
terms of eligibility as a successor Indenture Trustee under Section 6.11 and no notice to
the Noteholders of the appointment of any co–trustee or separate trustee shall be required under
Section 6.08 hereof. No appointment of a co–trustee or a separate trustee shall relieve
the Indenture Trustee of its duties and obligations hereunder.



     (b) Every separate trustee and co–trustee shall, to the extent permitted by law, be appointed
and act subject to the following provisions and conditions:




     (i) all rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by the Indenture
Trustee and such separate trustee or co–trustee jointly (it being understood that such
separate trustee or co–trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Indenture Collateral or any
portion thereof in any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co–trustee, but solely at the direction of the Indenture Trustee;




     (ii) no trustee hereunder shall be personally liable by reason of any act or omission
of any other trustee hereunder; and




     (iii) the Indenture Trustee may at any time accept the resignation of or remove any
separate trustee or co–trustee.



     (c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to
have been given to each of the then separate trustees and co–trustees, as effectively as if given
to each of them. Every instrument appointing any separate trustee or co–trustee shall



57









 







refer to this Indenture and the conditions of this Article VI. Each separate trustee
and co–trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be
filed with the Indenture Trustee.



     (d) Any separate trustee or co–trustee may at any time constitute the Indenture Trustee, its
agent or attorney–in–fact with full power and authority, to the extent not prohibited by law, to do
any lawful act under or in respect of this Indenture on its behalf and in its name. If any
separate trustee or co–trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be exercised by the
Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor
trustee.



     Section 6.11. Eligibility; Disqualification.



     The Indenture Trustee hereunder shall at all times be (i) a national banking association or
banking corporation or trust company organized and doing business under the laws of any state or
the United States, (ii) authorized under such laws to exercise corporate trust powers, (iii) having
a combined capital and surplus of at least $200,000,000, (iv) having unsecured and unguaranteed
long–term debt obligations rated at least “Baa3” by Moody’s, “BBB” by Fitch and “BBB–” by S&P, and
(v) is subject to supervision or examination by federal or state banking authority. If such
banking association publishes reports of condition at least annually, pursuant to Applicable Law or
to the requirements of the aforesaid supervising or examining authority, then for the purposes of
this Section 6.11 its combined capital and surplus shall be deemed to be as set forth in
its most recent report of condition so published. In case at any time the Indenture Trustee shall
cease to be eligible in accordance with the provisions of this Section 6.11, the Indenture
Trustee shall (a) give prompt notice to the Issuer, the Trust Depositor, the Servicer and the
Noteholders that it has so ceased to be eligible to be the Indenture Trustee and (b) resign, upon
the request of the Majority Noteholders in the manner and with the effect specified in Section
6.08.



     Section 6.12. Representations, Warranties and Covenants of Indenture Trustee.



     The Indenture Trustee hereby makes the following representations, warranties and covenants on
which the Issuer, the Trust Depositor, the Servicer and the Noteholders shall rely:



     (a) the Indenture Trustee is a national banking association and trust company duly organized,
validly existing and in good standing under the laws of the United States.



     (b) it satisfies the criteria specified in Section 6.11.



     (c) The Indenture Trustee has full power, authority and legal right to execute, deliver and
perform this Indenture and the other Transaction Documents to which it is a party and shall have
taken all necessary action to authorize the execution, deliver and performance by it of this
Indenture and the other Transaction Documents to which it is a party.



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     (d) The execution, delivery and performance by the Indenture Trustee of this Indenture and the
other Transaction Documents to which it is a party shall not (i) violate any provision of any law
or any order, writ, judgment or decree of any court, arbitrator or governmental authority
applicable to the Indenture Trustee or any of its assets, (ii) violate any provision of the
corporate charter or by–laws of the Indenture Trustee or (iii) violate any provision of, or
constitute, with or without notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Indenture Collateral pursuant to the
provisions of, any mortgage, indenture, contract, agreement or other undertaking to which it is a
party, which violation, default or lien could reasonably be expected to materially and adversely
affect the Indenture Trustee’s performance or ability to perform its duties under this Indenture
and the other Transaction Documents to which it is a party or the transactions contemplated in this
Indenture and the other Transaction Documents to which it is a party.



     (e) The execution, delivery and performance by the Indenture Trustee of this Indenture and the
other Transaction Documents to which it is a party shall not require the authorization, consent or
approval of, the giving of notice to, the filing or registration with or the taking of any other
action in respect of any governmental authority or agency regulating the banking and corporate
trust activities of the Indenture Trustee.



     (f) This Indenture and the other Transaction Documents to which it is a party has been duly
executed and delivered by the Indenture Trustee and constitute the legal, valid and binding
agreements of the Indenture Trustee, enforceable in accordance with their respective terms, subject
to the effect of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating
to or affecting creditors’ rights generally or the application of equitable principles in any
proceeding, whether at law or in equity. The Indenture Trustee hereby agrees and covenants that it
will not at any time in the future, deny that this Indenture and the other Transaction Documents to
which it is a party constitute the legal, valid and binding agreement of the Indenture Trustee.



     (g) The Indenture Trustee shall not take any action, or fail to take any action, if such
action or failure to take action will materially interfere with the enforcement of any rights of
the Noteholders under this Indenture or the other Transaction Documents.



     Section 6.13. Directions to Indenture Trustee.



     The Indenture Trustee is hereby directed:




     (i) to accept a collateral assignment of the Loans and hold the assets of the Indenture
Collateral as security for the Noteholders;




     (ii) to authenticate and deliver the Notes substantially in the form prescribed by
Exhibit A in accordance with the terms of this Indenture;




     (iii) to execute and deliver the Transaction Documents to which it is a party; and




     (iv) to take all other actions as shall be required to be taken by the terms of this
Indenture.



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     Section 6.14. Conflicts.



     If a Default occurs and is continuing and the Indenture Trustee is deemed to have a
“conflicting interest” (as defined in the TIA) as a result of acting as trustee for the Offered
Notes on the one hand and the Class F Notes on the other hand, the Issuer shall appoint a successor
Indenture Trustee for the Offered Notes and a successor for the Class F Notes so that there will be
separate Indenture Trustees for the Offered Notes on the one hand, and for the Class F Notes on the
other hand. No such event shall alter the voting rights of the Noteholders under this Indenture or
under any of the other Transaction Documents.



ARTICLE VII



NOTEHOLDERS’ LISTS AND REPORTS




     Section 7.01. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders.



     The Issuer will furnish or cause to be furnished to the Indenture Trustee (a) within one day
after each Record Date, a list, in such form as the Indenture Trustee may reasonably require, of
the names and addresses of the Holders of Notes as of such Record Date and (b) at such other times
as the Indenture Trustee may reasonably request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not more than ten days
prior to the time such list is furnished; provided that so long as the Indenture Trustee is the
Note Registrar, no such list shall be required to be furnished.



     Section 7.02. Preservation of Information; Communications to Noteholders.



     (a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable,
the names and addresses of the Holders of Notes contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.01 and the names and addresses of Holders of
Notes received by the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee
may destroy any list furnished to it as provided in such Section 7.01 upon receipt of a new
list so furnished.



     (b) Noteholders may communicate pursuant to TIA § 312(b) with other Noteholders with respect
to their rights under this Indenture or under the Notes.



     (c) The Issuer, the Indenture Trustee and the Note Registrar shall have the protection of TIA
§ 312(c).



     (d) The Indenture Trustee shall furnish to the Noteholders promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Indenture Trustee under the
Transaction Documents.



     Section 7.03. Fiscal Year.



     Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on December 31
of each year.



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     Section 7.04. Reports to Irish Stock Exchange, Etc.



     In the event of a change in the Indenture Trustee, any paying agent or any transfer agent in
Ireland, the Issuer will cause notification thereof to be published in the Irish Stock Exchange’s
Daily Official List or as otherwise required by the rules of the Irish Stock Exchange.



ARTICLE VIII



TRUST ACCOUNTS, DISBURSEMENTS AND RELEASES




     Section 8.01. Collection of Money.



     Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or
delivery of, and shall receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or receivable by the
Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any Event of Default occurs in the making of any payment or performance under any
agreement or instrument that is part of the Indenture Collateral, the Indenture Trustee may take
such action as may be appropriate to enforce such payment or performance, including the institution
and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article V.



     Section 8.02. Trust Accounts.



     (a) On or prior to the Closing Date, the Servicer shall establish and maintain, in the name of
the Indenture Trustee, for the benefit of the Noteholders and the Certificateholder, the Trust
Accounts (other than the Principal and Interest Accounts which shall be in the name of the
Servicer) as provided in Section 7.01 of the Sale and Servicing Agreement.



     (b) All funds required to be deposited in the Principal and Interest Account with respect to
the preceding Due Period will be deposited in the Principal and Interest Account as provided in
Section 7.01 of the Sale and Servicing Agreement. On or before each Determination Date, the
Collections with respect to the preceding Due Period will be transferred from the Principal and
Interest Account to the Note Distribution Account as provided in Section 7.05 of the Sale and
Servicing Agreement.



     (c) On each Payment Date, the Indenture Trustee shall distribute all amounts on deposit in the
Note Distribution Account to Noteholders in respect of each Class of Notes and to the Paying Agent
under the Trust Agreement, for distribution to the Holders of the Trust Certificates in accordance
with the provisions of Section 7.05 of the Sale and Servicing Agreement.



     (d) All moneys deposited from time to time in the Note Distribution Account pursuant to the
Sale and Servicing Agreement and all deposits therein pursuant to this Indenture are for the
benefit of the Noteholders and all investments made with such moneys including all income or other
gain from such investments are for the benefit of the Noteholders as provided by the Sale and
Servicing Agreement.



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     (e) The proceeds of any purchase or sale of the assets of the Issuer described in Section
10.01 hereof shall be deposited in the Note Distribution Account.



     The Indenture Trustee shall invest any funds in the Note Distribution Account as provided in
the Sale and Servicing Agreement.



     Section 8.03. Opinion of Counsel.



     Except for releases or conveyances required or permitted by the Sale and Servicing Agreement
and the other Transaction Documents, the Indenture Trustee shall receive at least two Business
Days’ notice when requested by the Issuer to take any action pursuant to Section 8.05(a),
accompanied by copies of any instruments to be executed, and the Indenture Trustee shall also
require, as a condition to such action, an Opinion of Counsel, in form and substance satisfactory
to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required
to complete the same, and concluding that all conditions precedent to the taking of such action
have been complied with and such action will not materially and adversely impair the security for
the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture;
provided that such Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Indenture Collateral. Counsel rendering any such opinion may rely as to factual
matters, without independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such action.



     Section 8.04. Termination Upon Distribution to Noteholders.



     Subject to Section 4.06, this Indenture and the respective obligations and
responsibilities of the Issuer and the Indenture Trustee created hereby shall terminate upon the
distribution to the Noteholders and the Indenture Trustee of all amounts required to be distributed
pursuant to Article III and the Sale and Servicing Agreement.



     Section 8.05. Release of Indenture Collateral.



     (a) Subject to the payment of its fees and reasonable expenses, the Indenture Trustee may, and
when required by the provisions of this Indenture shall, execute instruments to release property
from the lien of this Indenture, or convey the Indenture Trustee’s interest in the same, in a
manner and under circumstances that are not inconsistent with the provisions of this Indenture,
Section 5.08 of the Sale and Servicing Agreement and the other Transaction Documents. No party
relying upon an instrument executed by the Indenture Trustee as provided in Article IV hereunder
shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any
conditions precedent, or see to the application of any moneys.



     (b) The Indenture Trustee shall, at such time as (i) there are no Notes Outstanding and (ii)
all sums due the Indenture Trustee pursuant to this Indenture have been paid, release any remaining
portion of the Indenture Collateral that secured the Notes from the lien of this Indenture. The
Indenture Trustee shall release property from the lien of this Indenture pursuant to this
Section 8.05(b) only upon receipt of a request from the Issuer accompanied by an Officer’s
Certificate and an Opinion of Counsel stating that all conditions precedent to such release have
been satisfied.



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     Section 8.06. Surrender of Notes Upon Final Payment.



     By acceptance of any Note, the Holder thereof agrees to surrender such Note to the Indenture
Trustee promptly, prior to such Noteholder’s receipt of the final payment thereon.



ARTICLE IX



SUPPLEMENTAL INDENTURES




     Section 9.01. Supplemental Indentures Without Consent of Noteholders.



     (a) Without the consent of the Holders of any Notes but with the prior notice to the Rating
Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and
from time to time, may enter into one or more indentures supplemental, in form satisfactory to the
Indenture Trustee, for any of the following purposes; provided that the Issuer shall only enter
into a supplemental indenture hereunder in compliance with Section 4.01(d) of the Trust Agreement:




     (i) to correct or amplify the description of any property at any time subject to the
lien of this Indenture, or better to assure, convey and confirm unto the Indenture Trustee
any property subject or required to be subjected to the lien of this Indenture, or to
subject to the lien of this Indenture additional property;




     (ii) to evidence the succession, in compliance with the applicable provisions hereof,
of another person to the Issuer, and the assumption by any such successor of the covenants
of the Issuer herein and in the Notes contained;




     (iii) to add to the covenants of the Issuer, for the benefit of the Holders of the
Notes, or to surrender any right or power herein conferred upon the Issuer;




     (iv) to convey, transfer, assign, mortgage or pledge any property to or with the
Indenture Trustee;




     (v) to cure any ambiguity or to correct or supplement any provision herein or in any
supplemental indenture that may be inconsistent with any other provision herein or in any
supplemental indenture or to make any modification that is of a formal, minor or technical
nature with respect to matters or questions arising under this Indenture or in any
supplemental indenture; provided that such action shall not as evidenced by an Opinion of
Counsel delivered to the Indenture Trustee, adversely affect the interests of the
Noteholders in any material respect;




     (vi) to evidence and provide for the acceptance of the appointment hereunder by a
successor trustee with respect to the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Article VI;




     (vii) to add to the conditions, limitations and restrictions on the authorized amount,
terms and purposes of the issuance, authentication and delivery of any Class of



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Notes, as herein set forth, additional conditions, limitations and restrictions
thereafter to be observed;




     (viii) to modify the restrictions on and procedures for resales and other transfers of
the Notes to reflect any changes in Applicable Law or regulations (or the interpretation
thereof);




     (ix) to enable the Issuer or the Indenture Trustee to rely upon the exemption from
registration under the Securities Act or the 1940 Act or to remove restrictions on resale or
transfer to the extent required hereunder;




     (x) to conform this Indenture to the Offering Memorandum;




     (xi) to make such amendments to this Indenture or the Notes (other than an amendment of
the type described in Section 9.02(i)-(viii)) as the Issuer and the Indenture
Trustee, in their reasonable discretion, may deem necessary or advisable in order for the
Listed Notes to qualify for or maintain their listing on the Irish Stock Exchange; and




     (xii) to evidence or implement any change to this Indenture required by regulations or
guidelines enacted to support the USA PATRIOT Act.



     The Indenture Trustee is hereby authorized to join in the execution of any such supplemental
indenture and to make any further appropriate agreements and stipulations that may be therein
contained.



     (b) The Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, also
without the consent of any of the Holders of the Notes but with prior notice to the Rating
Agencies, enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or
of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided
that such action shall not, as evidenced by an Opinion of Counsel, (i) adversely affect in any
material respect the interest of any Noteholder or (ii) cause the Issuer to be subject to an entity
level tax or be classified as a taxable mortgage pool within the meaning of Section 7701(i) of the
Code.



     (c) Notwithstanding any provision contained herein to the contrary, prior to entering into any
supplemental indenture pursuant to Section 9.01, the Issuer and Indenture Trustee shall
obtain written confirmation from each of Moody’s and S&P that entry by the Issuer and Indenture
Trustee into such supplemental indenture satisfies the Moody’s Rating Condition and S&P Rating
Condition, respectively.



     Section 9.02. Supplemental Indentures With Consent of Noteholders.



     The Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may, with prior
notice to the Rating Agencies and with the consent of the Majority Noteholders by act of such
Holders, enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or
of modifying in any manner the rights of the Holders of the Notes under this



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Indenture; provided that (x) that the Issuer shall only enter into a supplemental indenture
hereunder in compliance with Section 4.01(c) of the Trust Agreement, and (y) no such supplemental
indenture shall, without the consent of the Holder of each Note affected thereby:




     (i) change the date of payment of any installment of principal of or interest on any
Note, or reduce the principal amount thereof, the interest rate thereon or the Repurchase
Price with respect thereto, change the provisions of this Indenture relating to the
application of collections on, or the proceeds of the sale of the Indenture Collateral to
payment of principal of or interest on the Notes, or change any place of payment where, or
the coin or currency in which, principal or interest on any such Note is payable, or impair
the right to institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the respective due dates
thereof;




     (ii) reduce the percentage of the Outstanding Principal Balance, of the Notes, the
consent of the Holders of which is required for any such supplemental indenture, or the
consent of the Holders of which is required for any waiver of compliance with any provision
of this Indenture or defaults hereunder and their consequences provided for in this
Indenture;




     (iii) modify or alter the provisions of the proviso to the definition of the term
“Outstanding” or modify or alter the exception in the definition of the term “Holder”;




     (iv) reduce the percentage of the Aggregate Outstanding Principal Balance required to
direct the Indenture Trustee to direct the Issuer to sell or liquidate the Indenture
Collateral pursuant to Section 5.04;




     (v) modify any provision of this Section 9.02 except to increase any percentage
specified herein or to provide that certain additional provisions of this Indenture or the
Transaction Documents cannot be modified or waived without the consent of the Holder of each
Note affected thereby; or




     (vi) permit the creation of any lien ranking prior to or on a parity with the lien of
this Indenture with respect to any part of the Indenture Collateral or, except as otherwise
permitted or contemplated herein, terminate the lien of this Indenture on any property at
any time subject hereto or deprive any Noteholder of the security provided by the lien of
this Indenture; and provided further that such action shall not, as evidenced by an Opinion
of Counsel, cause the Issuer to be subject to an entity level tax or be classified as a
publicly traded partnership within the meaning of Section 7704(b) of the Code or a taxable
mortgage pool within the meaning of Section 7701(i) of the Code.



     The Indenture Trustee may in its discretion determine whether or not any Notes would be
affected by any supplemental indenture and any such determination shall be conclusive upon the
Holders of all Notes, whether theretofore or thereafter authenticated and delivered hereunder. The
Indenture Trustee shall not be liable for any such determination made in good faith.



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     It shall not be necessary for any Act of Noteholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.



     Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental
indenture pursuant to this Section 9.02, the Indenture Trustee shall mail to the Holders of
the Notes to which such amendment or supplemental indenture relates a copy of such supplemental
Indenture or a notice setting forth in general terms the substance of such supplemental indenture.
Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture.



     Notwithstanding any provision contained herein to the contrary, prior to entering into any
supplemental indenture pursuant to Section 9.02, the Issuer and Indenture Trustee shall
obtain written confirmation from Moody’s and (solely with respect to modifications referenced in
clauses (i) – (iv) above) S&P that entry by the Issuer and Indenture Trustee into such supplemental
indenture satisfies the Moody’s Rating Condition and the S&P Rating Condition, respectively.



     Section 9.03. Execution of Supplemental Indentures.



     In executing, or permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created by this
Indenture, the Indenture Trustee shall be entitled to receive, and subject to Sections 6.01
and 6.02, shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Indenture Trustee’s own rights, duties, liabilities or immunities under this
Indenture or otherwise. The Indenture Trustee shall provide copies of each supplemental indenture
to the Rating Agencies.



     Section 9.04. Effect of Supplemental Indenture.



     Upon the execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the
Issuer and the Noteholders shall thereafter be determined, exercised and enforced hereunder subject
in all respects to such modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.



     Section 9.05. Reference in Notes to Supplemental Indentures.



     Notes authenticated and delivered after the execution of any supplemental indenture pursuant
to this Article IX may, and if required by the Indenture Trustee shall, bear a notation in form
approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If
the Issuer or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the
opinion of the Indenture Trustee and the Issuer, to any such supplemental



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indenture may be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.



ARTICLE X



OPTIONAL REPURCHASE OF NOTES




     Section 10.01. Optional Repurchase.



     At any time during the Call Period, the Issuer may repurchase the Notes in whole, but not in
part, at the direction of the Holders of
662/3% of the Outstanding Principal Balance of the Class F
Notes pursuant to Section 10.01 of the Sale and Servicing Agreement, on any Payment Date on which
the Holders of 662/3% of the Outstanding Principal Balance of the Class F Notes provides notice to
the Issuer and the Indenture Trustee of the election to cause the Issuer to repurchase the Notes.
The Holders of 662/3% of the Outstanding Principal Balance of the Class F Notes may exercise the
option to cause the Issuer to repurchase Notes pursuant to Section 10.01 of the Sale and Servicing
Agreement by directing the Issuer to deposit in full in the Note Distribution Account an amount
equal to the Repurchase Price by no later than 12:00p.m. (New York City time) on the Repurchase
Date. If the Notes are to be repurchased pursuant to this Section 10.01, the Issuer shall
furnish the Indenture Trustee and the Rating Agencies notice of such repurchase no later than ten
days prior to the proposed Repurchase Date and the Issuer shall deposit with the Indenture Trustee
in the Note Distribution Account the Repurchase Price of the Notes to be repurchased on the
Repurchase Date, and all such Notes shall be due and payable on the Repurchase Date upon the
furnishing of a notice complying with Section 10.05 to each Holder of Notes. The Holders
of at least 662/3% of the Outstanding Principal Balance of the Class F Notes may withdraw any notice
of repurchase or specify a new Repurchase Date at any time prior to the proposed Repurchase Date
set forth in any prior notice of repurchase by providing written notice to the Indenture Trustee,
the Owner Trustee and the Rating Agencies by no later than the second Business Day preceding such
Repurchase Date.



     Section 10.02. Notes Payable on Repurchase Date.



     (a) The Notes to be repurchased shall, following notice of an Optional Repurchase of the
Offered Notes as required by Section 10.05, and unless the Issuer has provided written
notice to the Indenture Trustee of its election to withdraw such notice of repurchase, on the
Repurchase Date become due and payable at the Repurchase Price and (unless the Issuer shall default
in the payment of the Repurchase Price) no interest shall accrue on the Repurchase Price for any
period after the date to which accrued interest is calculated for purposes of calculating the
Repurchase Price. Following the repurchase in whole of the Offered Notes, the Class F Notes will
be repurchased in whole whether or not any amounts are available to the Issuer for distribution to
the Holders of the Class F Notes in connection with such repurchase. On the Repurchase Date, upon
deposit in full by the Issuer in the Note Distribution Account of an amount equal to the Repurchase
Price, the Indenture Collateral (other than the Trust Accounts) shall cease to constitute assets of
the Issuer and the Noteholders shall have no interest therein nor any claim to any distributions in
respect of the Indenture Collateral other than the Trust Accounts).



     (b) The portion of the Repurchase Price payable in respect of principal of the Offered Notes
will be distributed as set forth under clause Ninth of Section 7.05(b) of the Sale and Servicing
Agreement and all other amounts payable will be distributed as set forth under such



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Section 7.05(b). On and after the Repurchase Date, all payments of principal and interest in
respect of the Loans shall be solely for the account of the Servicer.



     Section 10.03. [Reserved]



     Section 10.04. [Reserved]



     Section 10.05.  Form of Repurchase Notice by Indenture Trustee.



     (a) Notice of an Optional Repurchase of the Offered Notes under Section 10.01 shall be
given by the Indenture Trustee by facsimile, overnight courier or first-class mail, postage
prepaid, transmitted or mailed prior to the applicable Repurchase Date to each Holder of Notes, as
of the close of business on the Record Date preceding the applicable Repurchase Date, at such
Holder’s address appearing in the Note Register. In addition, for so long as any Offered Notes are
listed on the Irish Stock Exchange and so long as the rules of such exchange so require, notice of
an Optional Repurchase will also be given by the Indenture Trustee to the Ireland Paying Agent for
delivery to the Irish Stock Exchange.



     (b) All notices of repurchase shall state:




     (i) the Repurchase Date;




     (ii) the Repurchase Price;




     (iii) that the Record Date otherwise applicable to such Repurchase Date is not
applicable and that payments shall be made only upon presentation and surrender of such
Notes and the place where such Notes are to be surrendered for payment of the Repurchase
Price (which shall be the office or agency of the Issuer to be maintained as provided in
Section 3.02); and




     (iv) that interest on the Notes shall cease to accrue on the Repurchase Date.



     (c) Notice of repurchase of the Notes shall be given by the Indenture Trustee in the name and
at the expense of the Issuer. Failure to give notice of repurchase, or any defect therein, to any
Holder of any Note shall not impair or affect the validity of the repurchase of any other Note.



ARTICLE XI



MISCELLANEOUS




     Section 11.01. Compliance Certificates and Opinions, etc.



     (a) Upon any application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee an
Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, and, if required, an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to which the



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furnishing of such documents is specifically required by any provision of this Indenture, no
additional certificate or opinion need be furnished.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:




     (i) a statement that each signatory of such certificate or opinion has read or has
caused to be read such covenant or condition and the definitions herein relating thereto;




     (ii) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (iii) a statement that, in the opinion of each such signatory, such signatory has made
such examination or investigation as is necessary to enable such signatory to express an
informed opinion as to whether or not such covenant or condition has been complied with;




     (iv) a statement as to whether, in the opinion of each such signatory, such condition
or covenant has been complied with; and




     (v) if the signer of such Trust Certificate or Opinion is required to be Independent,
the Statement required by the definition of the term “Independent”.



     (b) (i) Prior to the deposit of any Indenture Collateral or other property or securities with
the Indenture Trustee that is to be made the basis for the release of any property or securities
subject to the lien of this Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an
Officer’s Certificate certifying or stating the opinion of each person signing such certificate as
to the estimated fair value (within 90 days of such deposit) to the Issuer of the Indenture
Collateral or other property or securities to be so deposited.




     (ii) Subject to clause (iii), whenever any property or securities are to be
released from the lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer’s Certificate certifying or stating the opinion of each person signing
such certificate as to the estimated fair value (within 90 days of such release) of the
property or securities proposed to be released and stating that in the opinion of such
person the proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.




     (iii) Notwithstanding any provision of this Indenture, the Issuer may, without
compliance with the requirements of the other provisions of this Section 11.01, (A)
collect, sell or otherwise dispose of Loans and Indenture Collateral as and to the extent
permitted or required by the Transaction Documents, or (B) make cash payments out of the
Trust Accounts.



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     Section 11.02. Form of Documents Delivered to Indenture Trustee.



     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows that the certificate or opinion or representations with respect to the matters
upon which the certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers of the Servicer,
the Issuer, the Trust Depositor, or other appropriate Person, stating that the information with
respect to such factual matters is in the possession of the Servicer, the Issuer, the Trust
Depositor or such other Person, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



     Whenever in this Indenture, in connection with any application or certificate or report to the
Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer’s compliance with any term hereof, it is
intended that the truth and accuracy in all material respects, at the time of the granting of such
application or at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions precedent to the right
of the Issuer to have such application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the Indenture Trustee’s right to rely
upon the truth and accuracy of any statement or opinion contained in any such document as provided
in Article VI.



     Section 11.03. Acts of Noteholders.



     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Noteholders in person or by
agents duly appointed in writing; and except as herein otherwise expressly provided such action
shall become effective when such instrument or instruments are delivered to the Indenture Trustee,
and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Noteholders signing such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if
made in the manner provided in this Section 11.03.



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     (b) The fact and date of the execution by any person of any such instrument or writing may be
proved in any manner that the Indenture Trustee deems sufficient.



     (c) The ownership of Notes shall be proved by the Note Register.



     (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Notes shall bind the Holder of every Note issued upon the registration thereof or
in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be
done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.



     Section 11.04. Notices, etc., to Indenture Trustee and Others.



     Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders
or other documents provided or permitted by this Indenture shall be in writing and if such request,
demand, authorization, direction, notice, consent, waiver or act of Noteholders is to be made upon,
given or furnished to or filed with:




     (i) the Indenture Trustee by any Noteholder or by the Issuer shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the
Indenture Trustee and received at the Corporate Trust Office, or




     (ii) the Issuer by the Indenture Trustee or by any Noteholder shall be sufficient for
every purpose hereunder if in writing and mailed first–class, postage prepaid to the Issuer
addressed to: CapitalSource Commercial Loan Trust 2007-1, c/o Wilmington Trust Company, 1100
North Market Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration,
with a copy to CapitalSource Finance LLC at 4445 Willard Avenue, 12th Floor, Chevy Chase,
Maryland 20815, Attention: Securitization Department; Patton Boggs LLP, 2001 Ross Avenue,
Suite 3000, Dallas, Texas 75201, Attention: Jay Baker, or at any other address previously
furnished in writing to the Indenture Trustee by the Issuer, CapitalSource or the Trust
Depositor. The Issuer shall promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee.



     Notices required to be given to the Rating Agencies by the Issuer, the Indenture Trustee or
the Owner Trustee shall be in writing, personally delivered or mailed by certified mail, return
receipt requested, to (i) in the case of S&P, at the following address: Standard and Poor’s
Ratings Services, 55 Water Street, 41st Floor, New York, New York 10007, Attention: Surveillance:
Asset–Backed Services, and via electronic mail to CDO_Surveillance@sandp.com (ii) in the case of
Fitch, at the following address: 55 East Monroe Street, Suite 3500, Chicago, Illinois 60603,
Attention: CDO Surveillance, and (iii) in the case of Moody’s, at the following address: Moody’s
Investors Service, ABS Monitoring Department, 99 Church Street, New York, New York 10007,
cdomonitoring@moodys.com; or as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties; provided that no notice shall be required to be
given to the Rating Agencies until a Class of Notes has been rated by such Rating Agency.



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     Section 11.05. Notices to Noteholders; Waiver.



     Where this Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, by
nationally recognized overnight courier or by first–class, postage prepaid to each Noteholder
affected by such event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor
any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of
such notice with respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.



     Where this Indenture provides for notice in any manner, such notice may be waived in writing
by any Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.



     In case, by reason of the suspension of regular mail service as a result of a strike, work
stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders
when such notice is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.



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



     In addition, for so long as any Class of Notes is listed on the Irish Stock Exchange and the
rules thereof so require, notices to Holders of such Notes will also be given by publication in the
Irish Stock Exchange’s Daily Official List or as otherwise required by the rules of the Irish Stock
Exchange.



     Section 11.06. Alternate Payment and Notice Provisions.



     Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the
Issuer may enter into any agreement with any Holder of a Note providing for a method of payment, or
notice by the Indenture Trustee or any Paying Agent to such Holder, that is different from the
methods provided for in this Indenture for such payments or notices. The Issuer will furnish to
the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments
to be made and notices to be given in accordance with such agreements.



Section 11.07. Effect of Headings.




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



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Section 11.08. Successors and Assigns.




     All covenants and agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co–trustees and agents.



     Section 11.09. Severability.



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



     Section 11.10. Benefits of Indenture.



     Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part of the Indenture
Collateral, any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 11.11. Legal Holidays.



     In any case where the date on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this Indenture) payment need not be made on
such date, but may be made on the next succeeding Business Day with the same force and effect as if
made on the date on which nominally due, and no interest shall accrue for the period from and after
any such nominal date.



     Section 11.12. GOVERNING LAW.



     (a) THIS INDENTURE, EACH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.



     (b) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE. EACH PARTY HERETO (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
INDENTURE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
11.12(b).



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     Section 11.13. Counterparts.



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



     Section 11.14. Issuer Obligation.



     No recourse may be taken, directly or indirectly, with respect to the obligations of the
Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any
certificate or other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee
or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a
beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor
or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any
such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any
unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or
call owing to such entity. For all purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee and the Trust Company shall be subject to,
and entitled to the benefits of, the terms and provisions of the Trust Agreement.



     Section 11.15. No Petition, Limited Recourse.



     (a) The Indenture Trustee, by entering into this Indenture, and each Noteholder, by accepting
a Note, hereby covenant and agree that they will not prior to the date which is one year and one
day or, if longer, the preference period then in effect after payment in full of each Class of
Notes rated by any Rating Agency, institute against the Trust Depositor or the Issuer, or join in
any institution against the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the Transaction Documents.



     (b) Notwithstanding any other provisions of the Notes, this Indenture or any other Transaction
Document, the obligations of the Issuer under the Notes and this Indenture and any other
Transaction Document are limited recourse obligations of the Issuer payable solely from the
Indenture Collateral in accordance with the Priority of Payments and, following realization of the
Indenture Collateral and distribution in accordance with the Priority of Payments, any claims of
the Noteholders and the other Secured Parties, and any other parties to any Transaction Document
shall be extinguished. No recourse shall be had against any officer, administrator, member,
director, employee, security holder or incorporator of the Issuer or their respective successors or
assigns for the payment of any amounts payable under the Notes, this Indenture or any other
Transaction Document. It is understood that the foregoing provisions of this Section
11.15(b) shall not (i) prevent recourse to the Loan Assets for the sums due or to become due
under any security, instrument or agreement which is part of the Loan Assets or (ii) constitute a
waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured



74









 







by this Indenture or payable under any other Transaction Document until such Loan Assets have
been realized and distributed in accordance with the Priority of Payments, whereupon any such
outstanding indebtedness or obligation shall be extinguished.



     Section 11.16. Inspection; Confidentiality.



     The Issuer agrees that, on reasonable prior notice, it will permit any representative of the
Indenture Trustee, during the Issuer’s normal business hours, and in a manner that does not
unreasonably interfere with the Issuer’s normal operations, to examine all the books of account,
records, reports and other papers of the Issuer, to make copies and extracts therefrom, to cause
such books to be audited by Independent certified public accountants, and to discuss the Issuer’s
affairs, finances and accounts with the Issuer’s officers, employees, and Independent certified
public accountants, all at such reasonable times, in such reasonable manner, and as often as may be
reasonably requested. The Indenture Trustee shall and shall cause its representatives, its legal
counsel and its auditors to hold in confidence all such information except to the extent disclosure
may be required by law (and all reasonable applications for confidential treatment are unavailing)
and except to the extent that the Indenture Trustee may reasonably determine that such disclosure
is consistent with its obligations hereunder and under applicable law. Notwithstanding anything to
the contrary contained herein, all parties to which this Indenture relates may disclose to any and
all persons, without limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that are provided to such
investors relating to such tax treatment and tax structure. For purposes of this paragraph, the
terms “tax treatment,” “tax structure,” and “tax analyses” have the meaning given to such terms
under Treasury Regulation section 1.6011-4(c).



     Section 11.17. Limitation of Liability.



     It is expressly understood and agreed by the parties hereto that (a) this Indenture is
executed and delivered by Wilmington Trust Company, not individually or personally but solely as
Owner Trustee on behalf of the Issuer under the Trust Agreement, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of
binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability
on Wilmington Trust Company individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived by the parties to this
Indenture and by any person claiming by, through or under them and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of
the Issuer or be liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaking by the Issuer under this Indenture or any related documents.



     Section 11.18. Disclaimer and Subordination.



     Each Noteholder by accepting a Note acknowledges and agrees that this Indenture and the Notes
represent a debt obligation of the Issuer only and do not represent an interest in any assets
(other than the Indenture Collateral) of the Trust Depositor (including by virtue of any deficiency
claim in respect of obligations not paid or otherwise satisfied from the Trust Estate



75









 







and proceeds thereof). In furtherance of and not in derogation of the foregoing, each
Noteholder by accepting a Note acknowledges and agrees that it shall have no right, title or
interest in or to any assets (or interests therein) (other than the Indenture Collateral) conveyed
or purported to be conveyed by the Trust Depositor to another securitization trust (i.e., other
than the Issuer) or other Person or Persons in connection therewith (whether by way of a sale,
capital contribution or by virtue of the granting of a Lien) (“Other Assets”). To the
extent that, notwithstanding the agreements and provisions contained in the preceding sentences of
this Section 11.18, any Noteholder either (i) asserts an interest in or claim to, or
benefit from, Other Assets, whether asserted against or through the Trust Depositor or any other
Person owned by the Trust Depositor, or (ii) is deemed to have any such interest, claim or benefit
in or from Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of any applicable insolvency laws or otherwise (including without limitation by virtue
of Section 111l(b) of the federal Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy
Code), and whether deemed asserted against or through the Trust Depositor or any other Person owned
by the Trust Depositor, then each Noteholder by accepting a Note further acknowledges and agrees
that any such interest, claim or benefit in or from Other Assets is and shall be expressly
subordinated to the indefeasible payment in full of all obligations and liabilities of the Trust
Depositor which, under the terms of the relevant documents relating to the securitization of such
Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by
such Other Assets (whether or not any such entitlement or security interest is legally perfected or
otherwise entitled to a priority of distribution or application under applicable law, including any
applicable insolvency laws, and whether asserted against the Trust Depositor or any other Person
owned by the Trust Depositor), including, without limitation, the payment of post–petition interest
on such other obligations and liabilities. This subordination agreement shall be deemed a
subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each
Noteholder further acknowledges and agrees that no adequate remedy at law exists for a breach of
this Section 11.18 and that the terms and provisions of this Section 11.18 may be
enforced by an action for specific performance.



[Remainder of Page Intentionally Left Blank]




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     IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all as of the day and year first
above written.



	 	 	 	 	 	 	 
	 	 	CAPITALSOURCE COMMERCIAL LOAN TRUST 2007-1
	 
	 	 	 	 	 	 
	 

	 	By:
	 	WILMINGTON TRUST COMPANY, not in its individual
capacity, but solely as Owner Trustee on behalf
of the Trust	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ MICHELLE C. HARRA	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Michelle C. Harra	 	 
	 

	 	Title:
	 	Financial Services Officer	 	 











H-1









 











     IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all as of the day and year first
above written.



	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as the Indenture
Trustee
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ BENJAMIN J. KRUEGER	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Benjamin J. Krueger	 	 
	 

	 	Title:
	 	Vice President	 	 







H-2