The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such Class. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture. (b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series. (c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery. (d) The issuance of each Series of Notes on the Initial Closing Date shall be subject to the satisfaction of the following conditions: (i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes; (ii) receipt by the Indenture Trustee of the Transaction Documents and the Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver; (iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or the Custodian together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series; (iv) receipt by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection of the Indenture Trustee’s security interest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, in a bankruptcy proceeding involving any such Person, (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (z) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and (v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement. (e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions: (i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes; (ii) if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto; (iii) satisfaction of the Rating Condition; (iv) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt for U.S. federal income tax purposes as of the related Series Closing Date, (y) will not cause any of the Issuers of any outstanding Series to be treated as an association, a publicly-traded partnership or a taxable mortgage pool taxable as a corporation and (z) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause any taxable gain or loss to be recognized by any Noteholder of an outstanding Series; (1) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, in a bankruptcy proceeding involving any such Person and (y) relating to the “true sale” or “true contribution” of the Collateral added to the Collateral Pool in connection with the related Series Closing Date and (2) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute debt for U.S. federal income tax purposes; (vi) any applicable Issuer, if it has not previously done so in connection with the issuance of any prior Series, has delivered an Opinion of Counsel or Officer’s Certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and (vii) the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (3) all conditions precedent in this Indenture to such New Issuance have been satisfied.
Appears in 3 contracts
Samples: Master Indenture, Master Indenture (Spirit MTA REIT), Master Indenture (Spirit Realty Capital, Inc.)
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such ClassPool. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or the Custodian a custodian on its behalf together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchasers and their counsel; (B) relating to the perfection and priority of the Indenture Trustee’s security interest, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves such PersonIssuer, the related Issuer Member or STORE Capital; (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (zD) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and(E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;
(vi) any applicable Issuer, if it has not done so for any previously issued Series, has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and
(vii) receipt by the Indenture Trustee of an Officer’s Certificate from the applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above the first Series of Notes shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto;
(iii) thereto and satisfaction of the Rating Conditionany other requirements set forth in such Series Supplement;
(iv) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or a custodian on its behalf together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(v) each Rating Agency then rating any existing Series of Notes shall have confirmed in writing that such issuance will not result in the downgrade, qualification or withdrawal of the higher of (A) the then current rating of such Notes and (B) the rating of such Notes at the time of the original issuance thereof;
(vi) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt at the time of its issuance for U.S. federal income tax purposes as of the related Series Closing Datepurposes, (y) will not cause any of the Issuers of any outstanding Series to be treated as an associationassociation that is taxable as a corporation, a publicly-traded partnership that is taxable as a corporation or a taxable mortgage pool that is taxable as a corporation corporation, for U.S. federal income tax purposes, and (z) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable U.S. federal income tax gain or loss to would be recognized by any Noteholder or any of an the Issuers of any outstanding Series;
(1vii) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchasers; (B) relating to the perfection and priority of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, interest; (xC) (i) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves any such Person Issuer, the related Issuer Member or STORE Capital and (yii) relating if any Collateral is being assigned to the “true sale” or “true contribution” an Issuer by an Affiliate of the Collateral added to the Collateral Pool such Issuer in connection with the issuance of such Series, related Series Closing Date and to true sale matters with respect to such Collateral; (2D) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(viviii) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;
(ix) any applicable Issuer, if it has not previously done so in connection with the issuance of for any prior previously issued Series, has delivered an Opinion of Counsel or Officer’s Certificate a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viix) the Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;
(xi) no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period;
(xii) such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (32) all conditions precedent in this Indenture to such New Issuance execution, authentication and delivery have been satisfied;
(xiii) receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled; and
(xiv) any additional conditions as set forth in the related Series Supplement.
Appears in 2 contracts
Samples: Master Indenture (STORE CAPITAL Corp), Master Indenture (STORE CAPITAL Corp)
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such Class. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or Custodian pursuant to the Custodian terms of the Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchaser and its counsel; (B) relating to the perfection of the Indenture Trustee’s security interest, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves such PersonIssuer, the Support Provider or the Property Manager; (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (zD) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and(E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;
(vi) any applicable Issuer has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special-purpose entity, organized with an Independent Manager; and
(vii) receipt by the Indenture Trustee of an Officer’s Certificate from the applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required receipt by the related Series Supplement, delivery to the Indenture Trustee of the form Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any Series Enhancement and all accompanying agreements with respect theretobreach or waiver;
(iii) satisfaction all Lease Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Custodian pursuant to the terms of Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Rating ConditionNoteholders of all Series;
(iv) each Rating Agency then rating any existing Series of Notes shall have confirmed in writing that such issuance will not result in the downgrade, qualification or withdrawal of the then current rating of any Class of Notes of such Series or any other Series;
(v) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (xA) will not adversely affect the tax characterization of the Class of Notes of any outstanding existing Series that was characterized as debt for U.S. federal income tax purposes as at the time of the related Series Closing Dateits issuance, (yB) will not cause any of the Issuers of any outstanding Series Issuer or Co-Issuer to be treated as an association, a publicly-traded partnership association or a taxable mortgage pool “publicly traded partnership” taxable as a corporation or as a taxable mortgage pool, and (zC) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable gain or loss to would be recognized by any Noteholder Noteholder, any holder of an outstanding SeriesRelated Series Notes or the Co-Issuers without the unanimous consent of the holders of Notes affected thereby;
(1vi) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchaser; (B) relating to the perfection of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves any such Person and Issuer, the Property Manager (y) relating to if the “true sale” or “true contribution” Property Manager is an Affiliate of the Collateral added to Issuer) or the Collateral Pool in connection with Support Provider (if the related Series Closing Date and Support Provider is an Affiliate of the Issuer); (2D) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(vivii) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;
(viii) any applicable Issuer, if it has not previously done so in connection with the issuance of any prior Series, has delivered an Opinion of Counsel or Officer’s Certificate Issuer of such Issuer Series of Notes shall be a solvent, special-purpose entity, organized with an Independent Manager and shall have delivered a certificate to such effect to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viiix) the Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;
(x) no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period;
(xi) either (A) no uncured Event of Default is continuing at the time of such New Issuance and such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default and (2) all conditions precedent to such execution, authentication and delivery have been satisfied or (bB) the proceeds of such New Issuance will be used to redeem the Outstanding all outstanding Notes in full and pay all accrued and unpaid Note Interest, Interest Carry-Forward Amount, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect such outstanding Notes;
(xii) receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such Outstanding Notes, issuance have been fulfilled; and
(2)(axiii) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result any additional conditions as set forth in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (3) all conditions precedent in this Indenture to such New Issuance have been satisfiedrelated Series Supplement.
Appears in 2 contracts
Samples: Master Indenture (American Finance Trust, Inc), Master Indenture (American Finance Trust, Inc)
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such Class. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or Custodian pursuant to the Custodian terms of the Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchaser and its counsel; (B) relating to the perfection of the Indenture Trustee’s security interest, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves such PersonIssuer, the Support Provider or the Property Manager; (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (zD) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and(E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;
(vi) any applicable Issuer has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special-purpose entity, organized with an Independent Manager; and
(vii) receipt by the Indenture Trustee of an Officer’s Certificate from the applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required receipt by the related Series Supplement, delivery to the Indenture Trustee of the form Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any Series Enhancement and all accompanying agreements with respect theretobreach or waiver;
(iii) satisfaction all Lease Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Custodian pursuant to the terms of Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Rating ConditionNoteholders of all Series;
(iv) the Rating Condition is satisfied;
(v) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (xA) will not adversely affect the tax characterization of the Class of Notes of any outstanding existing Series that was characterized as debt for U.S. federal income tax purposes as at the time of the related Series Closing Dateits issuance, (yB) will not cause any of the Issuers of any outstanding Series Issuer or Co-Issuer to be treated classified as an “association” taxable as a corporation, a publicly-“publicly traded partnership partnership” taxable as a corporation or as a taxable mortgage pool that is taxable as a corporation corporation, and (zC) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable gain or loss to would be recognized by any Noteholder Noteholder, any holder of an outstanding SeriesRelated Series Notes or the Co-Issuers without the unanimous consent of the holders of Notes affected thereby;
(1vi) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchaser; (B) relating to the perfection of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves any such Person and Issuer, the Property Manager (y) relating to if the “true sale” or “true contribution” Property Manager is an Affiliate of the Collateral added to Issuer) or the Collateral Pool in connection with Support Provider (if the related Series Closing Date and Support Provider is an Affiliate of the Issuer); (2D) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(vivii) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;
(viii) any applicable Issuer, if it has not previously done so in connection with the issuance of any prior Series, has delivered an Opinion of Counsel or Officer’s Certificate Issuer of such Issuer Series of Notes shall be a solvent, special-purpose entity, organized with an Independent Manager and shall have delivered a certificate to such effect to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viiix) the Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;
(x) no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period;
(xi) either (A) no uncured Event of Default is continuing at the time of such New Issuance and such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default and (2) all conditions precedent to such execution, authentication and delivery have been satisfied or (bB) the proceeds of such New Issuance will be used to redeem the Outstanding all outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect such outstanding Notes;
(xii) receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such Outstanding Notes, issuance have been fulfilled; and
(2)(axiii) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result any additional conditions as set forth in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (3) all conditions precedent in this Indenture to such New Issuance have been satisfiedrelated Series Supplement.
Appears in 1 contract
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such ClassPool. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all SeriesSeries and all amounts owed to the Insurers, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series.
(c) Pursuant to one or more Series Supplements, the applicable Issuers Issuer and any Co-Issuer may, from time to time, direct the Indenture Trustee, on behalf of the Issuer and such IssuersCo-Issuer, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the parties hereto and any applicable Issuers Co-Issuer shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the Issuer and any applicable Issuers Co-Issuer shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date date hereof) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or the Custodian together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection and priority of the Indenture Trustee’s security interest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any such Personthat involves the applicable Originators, the Issuer or Spirit Finance, (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (z) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt of an applicable initial custodial certification, as provided for in the Custodial Agreement;
(ii) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(iiiii) if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto;
(iiiiv) satisfaction of the Rating Condition;
(ivv) receipt by the Indenture Trustee and each Insurer of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt for U.S. federal income tax purposes purposes, as of the related applicable Series Closing Date, (y) will not cause any of the Issuers of any outstanding Series Issuer to be treated as an association, a publicly-traded partnership or a taxable mortgage pool taxable as a corporation corporation, for U.S. federal income tax purposes, and (z) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable U.S. federal income tax gain or loss to would be recognized by any Noteholder of an outstanding Seriesor the Issuer;
(1vi) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee and each Insurer of Opinions of Counsel, (w) relating to the perfection and priority of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Dateinterest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, in a bankruptcy proceeding involving any such Person and that involves the applicable Originators, the Issuer or Spirit Finance, (y) relating to the “true sale” or “true contribution” of the Collateral added to included in the Collateral Pool in connection with (including any Qualified Substitute Mortgage Loans or Qualified Substitute Mortgaged Properties pledged by the applicable Co-Issuer) to the Issuer and the applicable Co-Issuer on the related Series Closing Date and (2z) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any the particular Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes;
(vivii) any receipt by the Indenture Trustee of copies of letters signed by each applicable Issuer, if it Rating Agency confirming that each Class of Notes has not previously done so been given the ratings as indicated in connection with the issuance of any prior Series, related Series Supplement;
(viii) the applicable Co-Issuer has delivered an Opinion of Counsel or Officer’s Certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Co-Issuer is a solvent, special purpose, bankruptcy-remote entity;
(ix) receipt by the Indenture Trustee of the written consent of each of the Insurers to such New Issuance; and
(viix) such issuance shall not result in the Issuers have occurrence of an Event of Default and the Issuer has delivered to the Indenture Trustee and each Insurer an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may shall be entitled to conclusively rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers Issuer reasonably believe believes that (a) no uncured Event of Default is continuing at the time of such New Issuance issuance and that such New Issuance issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (32) all conditions precedent in this Indenture to such New Issuance execution, authentication and delivery have been satisfied.
Appears in 1 contract
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such ClassPool. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all SeriesSeries and all amounts owed to the Insurers, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or the Custodian together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection and priority of the Indenture Trustee’s security interest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves the applicable Originators, such PersonIssuer or Spirit Finance, (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (z) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto;
(iii) satisfaction of the Rating Condition;
(iv) receipt by the Indenture Trustee and each Insurer of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt for U.S. federal income tax purposes as of the related Series Closing Date, (y) will not cause any of the Issuers of any outstanding Series to be treated as an association, a publicly-traded partnership or a taxable mortgage pool taxable as a corporation corporation, for U.S. federal income tax purposes, and (z) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable U.S. federal income tax gain or loss to would be recognized by any Noteholder or any of an the Issuers of any outstanding Series;
(1v) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee and each Insurer of Opinions of Counsel, (w) relating to the perfection and priority of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Dateinterest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves the applicable Originators, any such Person and Issuers or Spirit Finance, (y) relating to the “true sale” or “true contribution” of the Collateral added to included in the Collateral Pool in connection with (including any Qualified Substitute Mortgage Loans or Qualified Substitute Mortgaged Properties pledged by the applicable Issuers) on the related Series Closing Date and (2z) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes;
(vi) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the then-current ratings by such Rating Agencies;
(vii) any applicable Issuer, if it has not previously done so in connection with the issuance of for any prior previously issued Series, has delivered an Opinion of Counsel or Officer’s Certificate certificate of such the Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viiviii) receipt by the Indenture Trustee of the written consent of each of the Insurers to such New Issuance;
(ix) such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee and each Insurer an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (32) all conditions precedent in this Indenture to such New Issuance execution, authentication and delivery have been satisfied.
Appears in 1 contract
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such Class. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or Custodian pursuant to the Custodian terms of the Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchaser and its counsel; (B) relating to the perfection of the Indenture Trustee’s security interest, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves such PersonIssuer, the Support Provider or the Property Manager; (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (zD) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and(E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;
(vi) any applicable Issuer has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special-purpose entity, organized with an Independent Manager; and
(vii) receipt by the Indenture Trustee of an Officer’s Certificate from the applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required receipt by the related Series Supplement, delivery to the Indenture Trustee of the form Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any Series Enhancement and all accompanying agreements with respect theretobreach or waiver;
(iii) satisfaction all Lease Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Custodian pursuant to the terms of Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Rating ConditionNoteholders of all Series;
(iv) each Rating Agency then rating any existing Series of Notes shall have confirmed in writing that such issuance will not result in the downgrade, qualification or withdrawal of the then current rating of any Class of Notes of such Series or any other Series;
(v) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (xA) will not adversely affect the tax characterization of the Class of Notes of any outstanding existing Series that was characterized as debt for U.S. federal income tax purposes as at the time of the related Series Closing Dateits issuance, (yB) will not cause any of the Issuers of any outstanding Series Issuer to be treated as an association, a publicly-traded partnership or a taxable mortgage pool association taxable as a corporation or a “publicly traded partnership”, or cause any Issuer (or any portion therein) to be characterized as a taxable mortgage pool, and (zC) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable gain or loss to would be recognized by any Noteholder or the Issuers without the unanimous consent of an outstanding Seriesthe holders of Notes affected thereby;
(1vi) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchaser; (B) relating to the perfection of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves any such Person and Issuer, the Property Manager (y) relating to if the “true sale” or “true contribution” Property Manager is an Affiliate of the Collateral added to Issuer) or the Collateral Pool in connection with Support Provider (if the related Series Closing Date and Support Provider is an Affiliate of the Issuer); (2D) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(vivii) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;
(viii) any applicable Issuer, if it has not previously done so in connection with the issuance of any prior Series, has delivered an Opinion of Counsel or Officer’s Certificate Issuer of such Issuer Series of Notes shall be a solvent, special-purpose entity, organized with an Independent Manager and shall have delivered a certificate to such effect to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viiix) the Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;
(x) no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period;
(xi) either (A) no uncured Event of Default is continuing at the time of such New Issuance and such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default and (2) all conditions precedent to such execution, authentication and delivery have been satisfied or (bB) the proceeds of such New Issuance will be used to redeem the Outstanding all outstanding Notes in full and pay all accrued and unpaid Note Interest, Interest Carry-Forward Amount, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect such outstanding Notes;
(xii) receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such Outstanding Notes, issuance have been fulfilled; and
(2)(axiii) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result any additional conditions as set forth in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (3) all conditions precedent in this Indenture to such New Issuance have been satisfiedrelated Series Supplement.
Appears in 1 contract
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such ClassPool. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all SeriesSeries and all amounts owed to the Insurers, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or the Custodian together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection and priority of the Indenture Trustee’s security interest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves the applicable Originators, such PersonIssuer or Spirit Finance, (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (z) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto;
(iii) satisfaction of the Rating Condition;
(iv) receipt by the Indenture Trustee and each Insurer of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt for U.S. federal income tax purposes as of the related Series Closing Date, (y) will not cause any of the Issuers of any outstanding Series to be treated as an association, a publicly-traded partnership or a taxable mortgage pool taxable as a corporation corporation, for U.S. federal income tax purposes, and (z) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable U.S. federal income tax gain or loss to would be recognized by any Noteholder or any of an the Issuers of any outstanding Series;
(1v) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee and each Insurer of Opinions of Counsel, (w) relating to the perfection and priority of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Dateinterest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves the applicable Originators, any such Person and Issuers or Spirit Finance, (y) relating to the “true sale” or “true contribution” of the Collateral added to included in the Collateral Pool in connection with (including any Qualified Substitute Mortgage Loans or Qualified Substitute Mortgaged Properties pledged by the applicable Issuers) on the related Series Closing Date and (2z) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes;
(vi) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the then-current ratings by such Rating Agencies;
(vii) any applicable Issuer, if it has not previously done so in connection with the issuance of for any prior previously issued Series, has delivered an Opinion of Counsel or Officer’s Certificate certificate of such the Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity;
(viii) receipt by the Indenture Trustee of the written consent of each of the Insurers to such New Issuance; and
(viiix) such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee and each Insurer an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (32) all conditions precedent in this Indenture to such New Issuance execution, authentication and delivery have been satisfied.
Appears in 1 contract
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such ClassPool. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or Custodian pursuant to the Custodian terms of the Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchasers and their counsel; (B) relating to the perfection and priority of the Indenture Trustee’s security interest, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves such PersonIssuer, the Support Provider or the Property Manager; (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (zD) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and(E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;
(vi) any applicable Issuer has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special-purpose entity, organized with an Independent Manager; and
(vii) receipt by the Indenture Trustee of an Officer’s Certificate from the applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above the first Series of Notes shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required receipt by the related Series Supplement, delivery to the Indenture Trustee of the form Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any Series Enhancement and all accompanying agreements with respect theretobreach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Custodian pursuant to the terms of Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) satisfaction of the Rating Condition;
(ivv) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (xA) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt at the time of its issuance for U.S. federal income tax purposes as of the related Series Closing Datepurposes, (yB) will not cause any of the Issuers of any outstanding Series to be treated as an associationassociation that is taxable as a corporation, a publicly-traded partnership that is taxable as a corporation or a taxable mortgage pool that is taxable as a corporation corporation, for U.S. federal income tax purposes, and (zC) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable U.S. federal income tax gain or loss to would be recognized by any Noteholder or any of an the Issuers of any outstanding Series;
(1vi) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchasers; (B) relating to the perfection and priority of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, interest; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves any such Person and Issuer, the Property Manager (y) relating to if the “true sale” or “true contribution” Property Manager is an Affiliate of the Collateral added to Issuer) or the Collateral Pool in connection with Support Provider (if the related Series Closing Date and Support Provider is an Affiliate of the Issuer); (2D) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(vivii) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;
(viii) any applicable Issuer, if it has not previously done so in connection with the issuance of any prior Series, has delivered an Opinion of Counsel or Officer’s Certificate Issuer of such Issuer Series of Notes shall be a solvent, special-purpose entity, organized with an Independent Manager and shall have delivered a certificate to such effect to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viiix) the Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;
(x) (A) no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period or (B) the proceeds of such issuance will be used to cure each such Early Amortization Period and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Notes and all accrued and unpaid note interest, post-ARD additional interest and deferred post-ARD additional interest with respect to such Notes;
(xi) no uncured Event of Default is continuing at the time of such New Issuance and such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (32) all conditions precedent in this Indenture to such New Issuance execution, authentication and delivery have been satisfied;
(xii) receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled; and
(xiii) any additional conditions as set forth in the related Series Supplement.
Appears in 1 contract
Samples: Master Indenture (Essential Properties Realty Trust, Inc.)
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such ClassPool. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series was issued pursuant to a Series Supplement dated as of the Initial Closing Date shall be Date) was subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or the Custodian a custodian on its behalf together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchasers and their counsel; (B) relating to the perfection and priority of the Indenture Trustee’s security interest, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any that involves such PersonIssuer, the related Issuer Member or STORE Capital; (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (zD) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and(E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;
(vi) any applicable Issuer, if it has not done so for any previously issued Series, has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and
(vii) receipt by the Indenture Trustee of an Officer’s Certificate from the applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above the first Series of Notes shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto;
(iii) thereto and satisfaction of the Rating Conditionany other requirements set forth in such Series Supplement;
(iv) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or a custodian on its behalf together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(v) each Rating Agency then rating any existing Series of Notes shall have confirmed in writing that such issuance will not result in the downgrade, qualification or withdrawal of the higher of (A) the then current rating of such Notes and (B) the rating of such Notes at the time of the original issuance thereof;
(vi) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt at the time of its issuance for U.S. federal income tax purposes as of the related Series Closing Datepurposes, (y) will not cause any of the Issuers of any outstanding Series to be treated as an associationassociation that is taxable as a corporation, a publicly-traded partnership that is taxable as a corporation or a taxable mortgage pool that is taxable as a corporation corporation, for U.S. federal income tax purposes, and (z) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable U.S. federal income tax gain or loss to would be recognized by any Noteholder or any of an the Issuers of any outstanding Series;
(1vii) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchasers; (B) relating to the perfection and priority of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, interest; (xC) (i) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, Issuers in a bankruptcy proceeding involving that involves any such Person Issuer, the related Issuer Member or STORE Capital and (yii) relating if any Collateral is being assigned to the “true sale” or “true contribution” an Issuer by an Affiliate of the Collateral added to the Collateral Pool such Issuer in connection with the issuance of such Series, related Series Closing Date and to true sale matters with respect to such Collateral; (2D) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;
(viviii) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;
(ix) any applicable Issuer, if it has not previously done so in connection with the issuance of for any prior previously issued Series, has delivered an Opinion of Counsel or Officer’s Certificate a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viix) the Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;
(xi) no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period;
(xii) such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (32) all conditions precedent in this Indenture to such New Issuance execution, authentication and delivery have been satisfied;
(xiii) receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled; and
(xiv) any additional conditions as set forth in the related Series Supplement.
Appears in 1 contract
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Issuer Collateral included in the Issuer Collateral Pool with each other Note of such Class. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, Indenture shall evidence a continuing lien on and security interest in the Issuer Collateral Granted hereunder or subsequently included in the Issuer Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.
(c) Pursuant to one or more Series Supplements, the applicable Issuers Issuer may, from time to time, direct the Indenture Trustee, on behalf of such Issuersthe Issuer, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers Issuer shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers Issuer shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each the first Series of Notes on (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an the Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Issuer Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or Custodian pursuant to the Custodian terms of the Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Issuer Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchaser and its counsel; (B) relating to the perfection of the Indenture Trustee’s security interest, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, Issuer in a bankruptcy proceeding involving any such Personthat involves the Issuer, the Issuer Member or the Sponsor; (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (zD) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and(E) all opinions relating to enforceability of the related local Mortgage; and (F) any other opinion required under the related Series Supplement;
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;
(vi) any applicable Issuer has delivered a certificate of the Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that the Issuer is a solvent, special-purpose entity, organized with an Independent Manager; and
(vii) receipt by the Indenture Trustee of an Officer’s Certificate from the Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an the Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required receipt by the related Series Supplement, delivery to the Indenture Trustee of the form Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any Series Enhancement and all accompanying agreements with respect theretobreach or waiver;
(iii) satisfaction all Lease Files with respect to the Issuer Collateral Pool, as set forth herein, shall have been delivered to the Custodian pursuant to the terms of Custody Agreement together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Issuer Collateral for the benefit of the Rating ConditionNoteholders of all Series;
(iv) each Rating Agency then rating any existing Series of Notes shall have confirmed in writing that such issuance will not result in the downgrade, qualification or withdrawal of the then current rating of any Class of Notes of such Series or any other Series;
(v) receipt by the Indenture Trustee of an a Tax Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (xA) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized Notes treated as debt for U.S. federal income tax purposes as of the related Series Closing Datepurposes, (yB) will not cause any of the Issuers of any outstanding Series Issuer not otherwise classified as a corporation for U.S. federal income tax purposes to be treated classified as an associationassociation or a “publicly traded partnership” taxable as a corporation, a publicly-traded partnership and will cause any Issuer, or portions thereof, to be classified as a taxable mortgage pool taxable as a corporation pool, and (zC) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause or constitute an event in which any taxable gain or loss to would be recognized by any Noteholder Noteholder, any holder of an outstanding SeriesNotes or the Issuer without the unanimous consent of the holders of Notes affected thereby;
(1vi) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (wA) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchaser; (B) relating to the perfection of the Indenture Trustee’s security interest in the Issuer Collateral added to the Issuer Collateral Pool in connection with the related Series Closing Date, ; (xC) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, in a bankruptcy proceeding involving any such Person and that involves the Issuer, the Issuer Member or the Sponsor; (yD) relating to the “true sale” or “true contribution” of the Collateral added to the Collateral Pool in connection with the related Series Closing Date and (2) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related local Mortgage; and (F) any other opinion required under the related Series Supplement;
(vivii) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;
(viii) any applicable Issuer, if it has not previously done so in connection with the issuance of any prior Series, has delivered an Opinion of Counsel or Officer’s Certificate Issuer of such Issuer Series of Notes shall be a solvent, special-purpose entity, organized with an Independent Manager and shall have delivered a certificate to such effect to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and;
(viiix) the Issuers have Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;
(x) no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period;
(xi) either (A) no uncured Event of Default is continuing at the time of such New Issuance and such New Issuance shall not result in the occurrence of an Event of Default and the Issuer has delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers Issuer reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default and (2) all conditions precedent to such execution, authentication and delivery have been satisfied or (bB) the proceeds of such New Issuance will be used to redeem the Outstanding all outstanding Notes in full and pay all accrued and unpaid Note Interest, Interest Carry-Forward Amount, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect such outstanding Notes;
(xii) receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such Outstanding Notes, issuance have been fulfilled; and
(2)(axiii) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result any additional conditions as set forth in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (3) all conditions precedent in this Indenture to such New Issuance have been satisfiedrelated Series Supplement.
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Samples: Master Indenture (Cim Real Estate Finance Trust, Inc.)
The Notes Generally; New Issuances. (a) Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool with each other Note of such Class. All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.
(b) This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series.
(c) Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “New Issuance”). The Notes of all outstanding Series shall, except as specified in the applicable Series Supplement, be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery or Final Payment Date of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement. On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series. The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.
(d) The issuance of each Series of Notes on the Initial Closing Date (which Series shall be issued pursuant to one or more Series Supplements dated as of the Initial Closing Date) shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) receipt by the Indenture Trustee of the Transaction Documents and the Series Transaction Documents for such Series duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;
(iii) all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or the Custodian together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;
(iv) receipt by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection of the Indenture Trustee’s security interest, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer, on the one hand, and certain Persons, on the other hand, in a bankruptcy proceeding involving any such Person, (y) relating to the “true sale” or “true contribution” of the Mortgage Loans and the Mortgaged Properties included in the Collateral Pool to the applicable Issuer as of the Initial Closing Date and (z) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; and
(v) receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement.
(e) The issuance of the Notes of any Series other than pursuant to Section 2.04(d) above shall be subject to the satisfaction of the following conditions:
(i) receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;
(ii) if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto;
(iii) satisfaction of the Affirmative Rating Condition;
(iv) receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt for U.S. federal income tax purposes as of the related Series Closing Date, (y) will not cause any of the Issuers of any outstanding Series to be treated as an association, a publicly-traded partnership or a taxable mortgage pool taxable as a corporation and (z) other than with respect to the issuance of any such Notes in connection with an exchange offer, will not cause any taxable gain or loss to be recognized by any Noteholder of an outstanding Series;
(1v) in connection with the issuance of any Series of Notes other than on the Applicable Series Closing Date, receipt by the Indenture Trustee of Opinions of Counsel, (w) relating to the perfection of the Indenture Trustee’s security interest in the Collateral added to the Collateral Pool in connection with the related Series Closing Date, (x) relating to the consolidation of the assets and liabilities of the applicable Issuer (excluding any Issuer with respect to which a similar Opinion of Counsel was previously delivered to the Indenture Trustee), on the one hand, and certain Persons, on the other hand, in a bankruptcy proceeding involving any such Person and Person, (y) relating to the “true sale” or “true contribution” of the Collateral added to the Collateral Pool in connection with the related Series Closing Date and (2z) receipt by the Indenture Trustee of an Opinion of Counsel relating to the characterization of any Class of Notes indicated in the related Series Supplement that such Notes will constitute debt for U.S. federal income tax purposes;
(vi) any applicable Issuer, if it has not previously done so in connection with the issuance of any prior Series, has delivered an Opinion of Counsel or Officer’s Certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and
(vii) the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that (a) no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default or (b) the proceeds of such New Issuance will be used to redeem the Outstanding Notes in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to such Outstanding Notes, (2)(a2) (a) no uncured Series Post ARD Event is continuing at the time of such New Issuance or (b) the proceeds of such New Issuance will be used to redeem each Series with respect to which a Series Post ARD Event is continuing in full and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest with respect to each such Series, (3)(a) no uncured Early Amortization Event is continuing at the time of such New Issuance and such New Issuance will not result in the occurrence of an Early Amortization Event or (b) the proceeds of such New Issuance will be used to cure each such Early Amortization Event and pay all accrued and unpaid Note Interest, Post-ARD Additional Interest and Deferred Post-ARD Additional Interest and (34) all conditions precedent in this Indenture to such New Issuance have been satisfied.
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