TABLE OF CONTENTS

 

Section				Page
PRELIMINARY STATEMENT				1
GRANTING CLAUSES				1
ARTICLE I Definitions and Interpretation				3
1.1.		Definitions		3
1.2.		Assumptions as to Collateral Interests, Fees, Etc.		46
1.3.		Rules of Construction		48
ARTICLE II The Indenture Issued Notes				48
2.1.		Forms Generally		48
2.2.		Authorized Amount; Applicable Periodic Interest Rate; Stated Maturity Date; Denominations		49
2.3.		Execution, Authentication, Delivery and Dating		50
2.4.		Registration, Transfer and Exchange of Indenture Issued Notes		51
2.5.		Mutilated, Defaced, Destroyed, Lost or Stolen Indenture Issued Notes		60
2.6.		Payment of Principal and Interest; Rights Preserved		61
ARTICLE III Conditions Precedent				66
3.1.		General Provisions		66
3.2.		Security for the Indenture Issued Notes		68
3.3.		Custodianship; Transfer of Collateral Interests and Eligible Investments		70
ARTICLE IV Satisfaction and Discharge				73
4.1.		Satisfaction and Discharge of Indenture		73
4.2.		Application of Trust Money		74
4.3.		Repayment of Funds Held by Note Paying Agent		74
ARTICLE V Events of Default; Remedies				74
5.1.		Events of Default		74
5.2.		Acceleration of Maturity; Rescission and Annulment		76
5.3.		Collection of Indebtedness and Suits for Enforcement by Trustee		77
5.4.		Remedies		79
5.5.		Preservation of Collateral		81
5.6.		Trustee May Enforce Claims Without Possession		83
5.7.		Application of Funds Collected		83
5.8.		Limitation on Suits		83
5.9.		Unconditional Rights of Rated Noteholders to Receive Principal and Interest		84
5.10.		Restoration of Rights and Remedies		84
5.11.		Rights and Remedies Cumulative		84
5.12.		Delay or Omission Not Waiver		84
5.13.		Control by Controlling Class		84
5.14.		Waiver of Past Defaults		85
5.15.		Undertaking for Costs		85
5.16.		Waiver of Stay or Extension Laws		86
5.17.		Sale of Collateral		86
5.18.		Action on the Rated Notes		87

 

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TABLE OF CONTENTS

(continued)

 

Section				Page
ARTICLE VI The Trustee				87
6.1.		Certain Duties and Responsibilities		87
6.2.		Notice of Default		89
6.3.		Certain Rights of Trustee		89
6.4.		Authenticating Agents		91
6.5.		Not Responsible for Recitals or Issuance of Rated Notes		91
6.6.		May Hold Rated Notes		92
6.7.		Funds Held in Trust		92
6.8.		Compensation and Reimbursement		92
6.9.		Corporate Trustee Required; Eligibility		93
6.10.		Resignation and Removal; Appointment of Successor		94
6.11.		Acceptance of Appointment by Successor		95
6.12.		Merger, Conversion, Consolidation or Succession to Business of Trustee		95
6.13.		Co-Trustees		96
6.14.		Certain Duties Related to Delayed Payment of Proceeds; Other Notices		97
6.15.		Representations and Warranties of the Bank		97
6.16.		Exchange Offers, Proposed Amendments etc.		98
6.17.		Fiduciary for Rated Noteholders Only; Agent For Other Secured Parties		98
6.18.		Withholding		98
ARTICLE VII Covenants				99
7.1.		Payment of Principal and Interest		99
7.2.		Maintenance of Office or Agency		99
7.3.		Funds for Rated Note Payments to be Held in Trust		100
7.4.		Existence of Co-Issuers		102
7.5.		Protection of Collateral		102
7.6.		Opinions as to Collateral		104
7.7.		Performance of Obligations		104
7.8.		Negative Covenants		105
7.9.		Statement as to Compliance		106
7.10.		Co-Issuers May Consolidate, Etc., Only on Certain Terms		107
7.11.		Successor Substituted		110
7.12.		No Other Business		110
7.13.		Change or Withdrawal of Rating		110
7.14.		Reporting		111
7.15.		Rated Note Calculation Agent		111
7.16.		Listing		112
7.17.		Amendment of Certain Documents		112
7.18.		Purchase of Collateral; Information Regarding Collateral; Rating Confirmation		112
ARTICLE VIII Supplemental Indentures				113
8.1.		Supplemental Indentures Without Consent of Rated Noteholders		113
8.2.		Supplemental Indentures with Consent of Rated Noteholders		116
8.3.		Execution of Supplemental Indentures		118
8.4.		Effect of Supplemental Indentures		118
8.5.		Reference in Indenture Issued Notes to Supplemental Indentures		119

 

ii

 

TABLE OF CONTENTS

(continued)

 

Section				Page
ARTICLE IX Redemption of Rated Notes				119
9.1.		Redemption of Rated Notes		119
9.2.		Redemption Procedures; Auction		119
9.3.		Record Date; Notice to Trustee of Redemption		121
9.4.		Notice of Redemption		121
9.5.		Notice of Withdrawal		122
9.6.		Rated Notes Payable on Redemption Date		122
9.7.		Special Amortization		123
ARTICLE X Accounts, Accountings and Releases				123
10.1.		Collection of Funds		123
10.2.		General Provisions Applicable to Accounts		124
10.3.		Collateral Account		125
10.4.		Uninvested Proceeds Account		125
10.5.		Collection Account		125
10.6.		Expense Reserve Account		126
10.7.		Interest Reserve Account		127
10.8.		Earn-Out Asset Account		127
10.9.		Payment Account		127
10.10.		Reports by Trustee		128
10.11.		Accountings		129
10.12.		Release of Securities		133
10.13.		Reports by Independent Accountants		134
10.14.		Reports to Rating Agencies		135
10.15.		Tax Matters		135
10.16.		Tax Information		136
10.17.		Interest Advances		136
ARTICLE XI Application of Monies				139
11.1.		Disbursements of Funds from Payment Account; Priority of Payments		139
ARTICLE XII Purchase and Sale of Collateral Interests				151
12.1.		Sale of Collateral Interests		151
12.2.		Portfolio Characteristics		152
12.3.		Conditions Applicable to all Transactions Involving Sale or Grant		156
ARTICLE XIII Secured Parties’ Relations				157
13.1.		Subordination		157
13.2.		Standard of Conduct		159
ARTICLE XIV Miscellaneous				160
14.1.		Form of Documents Delivered to Trustee		160
14.2.		Acts of Rated Noteholders		160
14.3.		Notices, Etc., to Trustee, the Co-Issuers and the Rating Agencies		161
14.4.		Notices and Reports to Rated Noteholders; Waiver		163
14.5.		Effect of Headings and Table of Contents		163
14.6.		Successors and Assigns		163
14.7.		Severability		164
14.8.		Benefits of Indenture		164

 

iii

 

TABLE OF CONTENTS

(continued)

 

Section				Page
14.9.		Governing Law		164
14.10.		Submission to Jurisdiction		164
14.11.		Counterparts		164
14.12.		Waiver of Jury Trial		164
14.13.		Judgment Currency		165
14.14.		Confidential Treatment of Documents		165
ARTICLE XV Assignment of Agreements, Etc.				165
15.1.		Assignment		165
15.2.		No Impairment		166
15.3.		Termination, Etc.		166
15.4.		Issuer Agreements, Etc		166
ARTICLE XVI Hedge Agreements				166
16.1.		Hedge Agreement		166

 

Schedules

 

Schedule A		Schedule of Collateral Interests as of the Closing Date
Schedule B		LIBOR Formula
Schedule C		Moody’s Recovery Rate Matrix
Schedule D		S&P’s Recovery Rate Matrix
Schedule E		Auction Procedures
Schedule F		S&P’s Notching Criteria
Schedule G		S&P’s Types of Asset-Backed Securities ineligible for Notching
Schedule H		S&P’s Industry Classification Groups
Schedule I		S&P’s Shadow Rating Grid
Schedule J-1		Form of S&P’s Representations, Warranties and Covenants for Commercial Mortgage Loans, Subordinate Mortgage Loan Interests And Mezzanine Loans
Schedule J-2		Form of S&P’s Representations, Warranties and Covenants for Credit Lease Loans and Tenant Lease Loan Interests
Exhibits
Exhibit A-1		Form of Regulation S Global Note
Exhibit A-2		Form of Rule 144A Global Note
Exhibit B		Form of Certificated Note
Exhibit C-1		Form of Rule 144A Transfer Certificate
Exhibit C-2		Form of Regulation S Transfer Certificate
Exhibit C-3		Form of Certificated Note Transfer Certificate
Exhibit C-4		Form of ERISA Restriction Certificate
Exhibit D		Form of Funding Certificate
Exhibit E-1		Form of Opinion of Thacher Proffitt & Wood LLP
Exhibit E-2		Form of Opinion of Walkers
Exhibit F		Form of Opinion of Kennedy Covington Lobdell & Hickman, L.L.P.
Exhibit G		Form of Opinion of Thacher Proffitt & Wood LLP
Exhibit H		Rated Noteholder’s Certificate

 

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THIS INDENTURE dated as of June 14, 2005 among:

 

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

 

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

 

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

 

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

 

PRELIMINARY STATEMENT

 

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

 

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

 

GRANTING CLAUSES

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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ARTICLE I

DEFINITIONS AND INTERPRETATION

 

1.1.       DEFINITIONS

 

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

 

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

 

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

 

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

 

Act has the meanings specified in Section 14.2.

 

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

 

3

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

4

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Auction has the meaning specified in Section 9.2.

 

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

 

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

 

Auction Procedures has the meaning specified in Section 9.2.

 

Auction Purchase Agreement has the meaning specified in Schedule E.

 

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

 

5

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

7

 

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

 

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

 

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

 

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

 

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

 

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

 

Class A Note Interest Rate means LIBOR plus 0.35%.

 

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

 

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

 

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

 

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

 

Class B Note Interest Rate means LIBOR plus 0.45%.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Class C Note Interest Rate means LIBOR plus 0.75%.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Class D Note Interest Rate means LIBOR plus 1.60%.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Class E Note Interest Rate means LIBOR plus 1.75%.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Class F Note Interest Rate means 7.00%.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Class G Note Interest Rate means 7.00%.

 

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

 

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

 

Clearing Agency means DTC, Euroclear or Clearstream.

 

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

 

Clearstream means Clearstream Banking, société anonyme.

 

Closing Date means June 14, 2005.

 

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

 

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

 

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

 

Co-Issuers means the Issuer and Co-Issuer.

 

Collateral has the meaning specified in the Granting Clauses.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(8)                       the Weighted Average Life Test is satisfied;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Commission means the United States Securities and Exchange Commission.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Deutsche Bank means Deutsche Bank Securities Inc.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Eligibility Criteria has the meaning specified in Section 12.2.

 

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

 

(i)                                      cash;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Event of Default has the meaning specified in Section 5.1.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

21

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Interest Advance has the meaning specified in Section 10.17.

 

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

 

24

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Irish Listing Agent means NCB Stockbrokers Limited.

 

Irish Paying Agent means NCB Stockbrokers Limited.

 

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

 

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

 

25

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Moody’s Rating		Moody’s Rating Factor
Aaa		1
Aa1		10
Aa2		20
Aa3		40
A1		70
A2		120
A3		180
Baa1		260
Baa2		360
Baa3		610
Ba1		940
Ba2		1,350
Ba3		1,766
B1		2,220
B2		2,720
B3		3,490
Caa1		4,770
Caa2		6,500
Caa3		8,070
Ca or lower		10,000

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Notes means the Rated Notes and the Income Notes.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Participation Interests pari passu participation interests in commercial mortgage loans.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Reference Banks has the meaning specified in Schedule B.

 

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

 

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

 

Regulation S means Regulation S under the Securities Act.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Class		Principal Coverage Test		Interest Coverage Test
Class C		137.00	%	135.00	%
Class D		132.10	%	125.00	%
Class E		119.40	%	118.00	%
Class F		114.90	%	115.00	%
Class G		110.00	%	110.00	%

 

Requisite Noteholders means the Holders of 66 2 / 3 % or more of the then Aggregate Outstanding Amount of (i) the Class A Notes, so long as any Class A Notes remain Outstanding, (ii) thereafter the Class B Notes so long as any Class B Notes remain Outstanding, (iii) thereafter the Class C Notes so long as any Class C Notes remain Outstanding, (iv) thereafter the Class D Notes so long as any Class D Notes remain Outstanding, (v) thereafter the Class E Notes so long as any Class E Notes remain Outstanding, (vi) thereafter the Class F Notes so long as any Class F Notes remain Outstanding and (vii) thereafter the Class G Notes so long as any Class G Notes remain Outstanding.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Second Currency has the meaning specified in Section 14.13.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Specified Currency has the meaning specified in Section 14.13.

 

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

 

Specified Place has the meaning specified in Section 14.13.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Uninvested Proceeds Account has the meaning specified in Section 10.4.

 

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

 

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

 

U.S. Person has the me