EXHIBIT 10.2
SUPPLEMENTAL INDENTURE NO. 3
between
PAGE FUNDING LLC
Issuer
UBS REAL ESTATE SECURITIES INC.
Noteholder
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
Trustee
relating to the
VARIABLE FUNDING NOTE
Originally dated as of June 30, 2004
This Supplement dated as of August 31, 2005
SUPPLEMENTAL INDENTURE NO. 3
SUPPLEMENTAL INDENTURE No. 3 (this "Supplemental Indenture"), dated as
of August 31, 2005, among Page Funding, LLC (the "Issuer") and ▇▇▇▇▇ Fargo Bank,
National Association (the "TRUSTEE"), as Trustee, amending that certain
Indenture dated as of June 30, 2004 (the "INDENTURE"), among the Issuer, UBS
Real Estate Securities Inc. (the "NOTEHOLDER") and the Trustee.
WHEREAS, pursuant to Section 9.2(a) of the Indenture and on the terms
and conditions set forth herein, the Issuer and the Trustee desire to amend the
Indenture as provided herein and the Noteholder desires to evidence its consent
to this Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, the Issuer and the Trustee hereby agree as follows:
Section 1. DEFINED TERMS. As used in this Supplemental Indenture
capitalized terms have the same meanings assigned thereto in the Indenture.
Section 2. AMENDMENT TO COVER PAGE. The first line of the cover page to
the Indenture is hereby amended by deleting "$100,000,000" and replacing it with
"$200,000,000".
Section 3. AMENDMENT TO SECTION ANNEX A-1. Annex A-1 is hereby deleted
and replaced with Exhibit A attached hereto. Upon the effectiveness of this
Supplemental Indenture, the Issuer shall, concurrently with the cancellation and
return of the outstanding Variable Funding Note, issue a new Variable Funding
Note in the form of Annex A-1 as amended by this Supplemental Indenture, which
Variable Funding Note shall be the "Note" for all purposes of the Indenture on
and after the effectiveness of this Supplemental Indenture.
Section 4. EFFECTIVENESS. This Supplemental Indenture shall be
effective from and after the date hereof.
Section 5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND THIS SUPPLEMENTAL INDENTURE AND ALL MATTERS
ARISING OUT OF OR RELATING IN ANY WAY TO THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
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Section 6. SEVERABILITY; COUNTERPARTS. This Supplemental Indenture may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Supplemental Indenture which are prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7. CAPTIONS. The captions in this Supplemental Indenture are
for convenience of reference only and shall not define or limit any of the terms
or provisions hereof.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Supplemental Indenture as of the date first written above.
PAGE FUNDING, LLC
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely in its capacity as
Trustee
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
CONSENTED TO BY:
UBS REAL ESTATE SECURITIES INC.,
as Noteholder
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
By: ______________________________________________
Name: ______________________________________________
Title: ______________________________________________
EXHIBIT A
SECOND AMENDED AND RESTATED
VARIABLE FUNDING NOTE
REGISTERED up to $200,000,000
No. A-1
SEE REVERSE FOR CERTAIN CONDITIONS
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR "BLUE SKY" LAWS.
THE HOLDER HEREOF, BY PURCHASING THE NOTE, AGREES FOR THE BENEFIT OF THE ISSUER
THAT IT IS AN INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D PROMULGATED UNDER THE
SECURITIES ACT AND THAT SUCH NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR
TRANSFERRED ONLY TO (1) THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE) OR AN
AFFILIATE OF THE ISSUER, (2) A PERSON THE TRANSFEROR REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (3) IN A TRANSACTION
OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION, IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
JURISDICTION; PROVIDED, THAT THE TRUSTEE OR THE ISSUER MAY REQUIRE AN OPINION OF
COUNSEL TO THE EFFECT THAT SUCH TRANSFER MAY BE EFFECTED WITHOUT REGISTRATION
UNDER THE SECURITIES ACT, WHICH OPINION OF COUNSEL, IF SO REQUIRED, SHALL BE
ADDRESSED TO THE ISSUER AND THE TRUSTEE AND SHALL BE SECURED AT THE EXPENSE OF
THE HOLDER.
TRANSFERS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE
INDENTURE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.5 OF THE INDENTURE, THIS
NOTE MAY BE TRANSFERRED, SOLD, OR PLEDGED, IN WHOLE BUT NOT IN PART, ONLY TO (I)
THE ISSUER OR AN AFFILIATE OF THE ISSUER OR (II)(A) AN INSTITUTIONAL ACCREDITED
INVESTOR THAT EXECUTES A CERTIFICATE, SUBSTANTIALLY IN THE FORM SPECIFIED IN THE
INDENTURE, TO THE EFFECT THAT IT IS AN INSTITUTIONAL ACCREDITED INVESTOR ACTING
FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF OTHERS) OR AS A FIDUCIARY OR
AGENT FOR OTHERS (WHICH OTHERS ALSO ARE INSTITUTIONAL ACCREDITED INVESTORS
UNLESS THE HOLDER IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) OR (B) SO LONG AS
THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT,
TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES AFTER DUE INQUIRY IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A), ACTING FOR ITS OWN
ACCOUNT, OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS ALSO ARE QUALIFIED
INSTITUTIONAL BUYERS) TO WHOM NOTICE IS GIVEN THAT THE SALE, PLEDGE, OR TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, UNLESS SUCH SALE, PLEDGE, OR OTHER
TRANSFER IS OTHERWISE MADE IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AND SUBJECT TO
INCREASES AND DECREASES AS SET FORTH HEREIN AND IN THE INDENTURE. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE
AMOUNT SHOWN ON THE FACE HEREOF.
PAGE FUNDING LLC
SECOND AMENDED AND RESTATED
VARIABLE FUNDING NOTE
PAGE FUNDING LLC, a Delaware limited liability company (herein referred
to as the "ISSUER"), for value received, hereby promises to pay to UBS REAL
ESTATE SECURITIES INC., a Delaware corporation (the "NOTEHOLDER"), or its
registered assigns, the principal sum of up to TWO HUNDRED MILLION DOLLARS
($200,000,000.00) or, if less, the aggregate unpaid principal amount outstanding
hereunder (whether or not shown on the schedule attached hereto (or such
electronic counterpart maintained by the Trustee)), which amount shall be
payable in the amounts and at the times set forth in Section 2.8(b) of the
Indenture. The Issuer will pay interest on Advances under this Note at the Note
Interest Rate. Such interest on Advances shall be due and payable on each
Settlement Date until the principal of this Note is paid or made available for
payment, to the extent funds will be available from the Collection Account
processed from and including the preceding Settlement Date to but excluding each
such Settlement Date in respect of (a) an amount equal to interest accrued for
the related Interest Period, which will be equal to the sum of the products, for
each day during the related Interest Period, of (i) the Note Interest Rate for
such date during the Interest Period and (ii) the Aggregate Principal Balance as
of the close of business on such date divided by 360, plus (b) an amount equal
to the amount of any accrued and unpaid Note Interest Carryover Shortfall with
respect to prior Interest Periods, with interest on the amount of such Note
Interest Carryover Shortfall at the Note Interest Rate for the first Business
Day of the related Interest Period. Prior to the Scheduled Maturity Date and
unless an Event of Default or a Funding Termination Event specified in clauses
(i) through (iii) of the definition thereof shall have occurred, the Issuer
shall only be required to make interest payments on the Invested Amount of the
Note to the holder hereof; provided that the Issuer may, at its option, prepay
the Invested Amount of the Note, in whole or in part, at any time and without
premium or penalty pursuant to Section 10.1 of the Indenture. Following the
occurrence of an Event of Default or a Funding Termination Event specified in
clauses (i) through (iii) of the definition thereof, the Noteholder may declare
the Invested Amount of this Note to be immediately due and payable at par,
together with accrued interest thereon, in accordance with Section 5.2 of the
Indenture. Principal of and interest on this Note shall be paid in the manner
specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. This Note does not represent an
interest in, or an obligation of, the Servicer or any affiliate of the Servicer
other than the Issuer.
This Note amends and restates the Variable Funding Note, dated as of
June 29, 2005 (the "Original Note"), and is not a novation of the Original Note.
All terms of this Note that are governed by the Indenture, are as set forth
therein.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note. Although a summary of certain provisions of the
Indenture are set forth below and on the reverse hereof and made a part hereof,
this Note does not purport to summarize the Indenture and reference is made to
the Indenture for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of the Servicer and the Trustee. A copy of the Indenture may be
requested from the Trustee by writing to the Trustee at: ▇▇▇▇▇ Fargo Bank,
National Association, ▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Services -- Asset Backed Administration. To
the extent not defined herein, the capitalized terms used herein have the
meanings ascribed to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
[Signature page follows.]
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
Date: August 31, 2005 PAGE FUNDING LLC
By:
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Name:
------------------------------------
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Note issued under the within-mentioned Indenture.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, not in its
individual capacity, but
solely as Trustee
By:
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Authorized Signature
REVERSE OF THE NOTE
This Note is the duly authorized Note of the Issuer, designated as its
Second Amended and Restated Variable Funding Note (herein called the "NOTE"),
issued under (i) the Indenture dated as of June 30, 2004 (such Indenture, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof, is herein called the "INDENTURE"), among the
Issuer, UBS Real Estate Securities Inc. (the "NOTEHOLDER"), and ▇▇▇▇▇ Fargo
Bank, National Association, a national banking association, as trustee (the
"TRUSTEE", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights and obligations thereunder of the
Issuer, the Trustee and the Note Purchaser. The Note is subject to all terms of
the Indenture. All terms used in this Note that are defined in the Indenture, as
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, shall have the meanings assigned to them in or pursuant to
the Indenture, as so amended, supplemented or otherwise modified.
"SETTLEMENT DATE" means, with respect to each Accrual Period, the 15th
day of the following calendar month, or if such day is not a Business Day, the
immediately following Business Day, commencing on August 16, 2004.
As described above, the entire unpaid principal amount of this Note
shall be due and payable on the Final Scheduled Settlement Date. Notwithstanding
the foregoing, if an Event of Default or a Funding Termination Event specified
in clauses (i) through (iii) of the definition thereof shall have occurred and
be continuing then, in certain circumstances, principal on the Note may be paid
earlier, as described in the Indenture.
Payments of interest on this Note due and payable on each Settlement
Date, together with the installment of principal then due, if any, and any
payments of principal made on any Business Day in respect of any prepayments, to
the extent not in full payment of this Note, shall be made by wire transfer to
the Holder of record of this Note (or any predecessor Note) on the Note Register
as of the close of business on each Record Date. Any reduction in the principal
amount of this Note (or any predecessor Note) effected by any payments made on
any date shall be binding upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted thereon. Final payment of principal (together with
any accrued and unpaid interest) on this Note will be paid to the Noteholder
only upon presentation and surrender of this Note at the Corporate Trust Office
for cancellation by the Trustee.
The Issuer shall pay interest on overdue installments of interest at
the Note Interest Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Note of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
The Noteholder, by acceptance of the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Trustee or the Issuer on the Note or under the Indenture or any
certificate or other writing delivered in connection therewith, against (i) the
Issuer or the Trustee in its individual capacity, (ii) any owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director or employee of the Issuer or the Trustee in its individual capacity,
any holder of a beneficial interest in the Issuer or the Trustee or of any
successor or assign of the Issuer or the Trustee in its individual capacity,
except (a) as any such Person may have expressly agreed (it being understood
that the Trustee has no such obligations in its individual capacity) and (b) any
such partner, owner or beneficiary shall be fully liable, to the extent provided
by applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note, subject to Section 6.7 of the Indenture.
The Noteholder, by acceptance of the Note, covenants and agrees that by
accepting the benefits of the Indenture that such Noteholder will not institute
against the Issuer, or join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States Federal or state bankruptcy or similar law in connection
with any obligations relating to the Note, the Indenture or the Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name the Note (as of the day of determination or as of such
other date as may be specified in the Indenture) is registered as the owner
hereof for all purposes, whether or not the Note be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
It is the intent of the Issuer and the Noteholder that, for Federal,
state and local income and franchise tax purposes, the Note will evidence
indebtedness of the Issuer secured by the Collateral. The Noteholder, by the
acceptance of the Note, agrees to treat the Note for Federal, state and local
income and franchise tax purposes as indebtedness of the Issuer.
The Indenture permits in certain circumstances, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Holder of the Note under the
Indenture at any time by the Issuer with the consent of the Holder of the Note.
The Indenture also contains provisions permitting the Holder of the Note to
waive compliance by the Issuer with certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of the Note (or
any predecessor Note) shall be conclusive and binding upon such Holder and upon
all future Holders of the Note and of the Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon the Note.
The Indenture also permits the Trustee to amend or waive certain terms
and conditions set forth in the Indenture without the consent of the Holder of
the Note.
The term "ISSUER" as used in this Note includes any successor to the
Issuer under the Indenture.
The Note is issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations set forth therein.
The Note and the Indenture shall be construed in accordance with the
law of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
and thereunder shall be determined in accordance with such law.
No reference herein to the Indenture and no provision of the Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on the Note at
the times, place, and rate, and in the coin or currency herein prescribed,
subject to any duty of the Issuer to deduct or withhold any amounts as required
by law, including any applicable U.S. withholding taxes.
INCREASES AND DECREASES
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Note
Unpaid Principal Interest Interest Period
Date Amount Increase Decrease Total Rate (if applicable) Notation Made By
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
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_________(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints______________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated:
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*Signature:
Guaranteed:
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*/ NOTE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatsoever.