EXHIBIT 10.3
SUPPLEMENTAL INDENTURE NO. 2
SUPPLEMENTAL INDENTURE No. 2 (this "Supplemental Indenture"), dated as of
June 29, 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 of Granting Clause. The "Granting Clause" of the
Indenture is hereby amended as follows:
(A) The words "Lockbox Account" in clause (h) of the Granting Clause
are hereby deleted and replaced with the words "Lockbox Accounts".
(B) Clause (m) of the Granting Clause (as reflected in the Indenture
immediately prior to this Supplemental Indenture) shall be clause (n) upon
the effectiveness of this Supplemental Indenture; and
(C) Clause (m) of the Granting Clause (as reflected in the Indenture
upon the effectiveness of this Supplemental Indenture) shall read as
follows:
"(m) each TFC/MFN Assignment; and".
Section 3. Amendment of Section 3.10(a)(vii). Section 3.10(a)(vii) of the
Indenture is hereby deleted in its entirety and replaced with the following:
"(vii) the Issuer shall have given the Noteholder written notice of such
consolidation or merger at least 10 Business Days prior to the consummation of
such action and shall have received the prior written approval of the Noteholder
to such consolidation or merger and the Issuer or the Person (if other than the
Issuer) formed by or surviving such consolidation or merger has a net worth,
immediately after such consolidation or merger, that is (a) greater than zero
and (b) not less than the net worth of the Issuer immediately prior to giving
effect to such consolidation or merger."
-1-
Section 4. Amendment of Section 5.1(a)(xi). Section 5.1(a)(xi) of the
Indenture is hereby deleted in its entirety and replaced with the following:
"(xi) a notice of termination with respect to any Lockbox Agreement
shall have been delivered, or a termination of any Lockbox Agreement shall
have otherwise occurred, and a replacement Lockbox Bank acceptable to the
Noteholder shall not have executed a Lockbox Agreement in form and
substance satisfactory to the Noteholder within 30 days of such notice;"
Section 5. Amendment of Section 5.4(iii). Section 5.4(iii) of the Indenture
is hereby amended by deleting the words "Issuer Secured Parties" and replacing
such words with "Noteholder."
Section 6. Amendment of Article V. Article V of the Indenture is hereby
amended by adding the following Section 5.17 to such Article:
"Section 5.17. Consequences of TFC Funding Termination Event. Upon a
responsible officer of the Issuer having notice or actual knowledge
thereof, the Issuer agrees to give the Trustee, the Noteholder and the
Rating Agencies prompt written notice of any TFC Funding Termination Event.
Upon the occurrence and continuation of a TFC Funding Termination Event,
the Noteholder may terminate CPS and TFC as the Servicer and subservicer,
respectively, of the TFC Receivables, and direct the Trustee to sell the
TFC Receivables or any portion thereof or rights or interest therein, at
one or more public or private sales (including, without limitation, the
sale of the TFC Receivables in connection with a securitization thereof)
called and conducted in any manner permitted by applicable law. The
proceeds of any such sale shall be applied first, to cure any Borrowing
Base Deficiency, second, to reimburse the Trustee for any amounts to which
it is entitled under this Indenture, and, third, any remaining amounts
shall be distributed to CPS. Upon the occurrence of a TFC Funding
Termination Event, no future Advance may be made with respect to a TFC
Receivable or a Clean-up Call Receivable."
Section 7. Amendment of Section 6.10(c). Section 6.10(c) of the Indenture
is hereby amended by deleting the word "invest" and replacing such word with
"vest".
Section 8. Amendment of Section 8.2 . Section 8.2 of the Indenture is
hereby amended by adding the following new clause (c):
(c) The Trustee shall, upon the order of the Noteholder, release such
portion of the Trust Estate as may be specified by such Noteholder in writing,
and shall thereafter execute and deliver such instruments prepared by the
Servicer as may be necessary to release the lien of the Trustee in such assets
of the Trust Estate upon the conditions precedent set forth in such order.
Section 9. 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, upon 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.
-2-
Section 10. Effectiveness. This Supplemental Indenture shall be effective
from and after the date hereof.
Section 11. 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).
Section 12. 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 13. 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
-3-
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Supplemental Indenture as of the date first written above.
PAGE FUNDING, LLC
By: /s/
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely in its
capacity as Trustee
By: /s/
CONSENTED TO BY:
UBS REAL ESTATE SECURITIES INC.,
as Noteholder
By: /s/
-4-