EXHIBIT 4.1
SOUTHWEST SHOPPING CENTERS CO. II, L.L.C.,
as Issuer,
THE BANK OF NEW YORK,
as Trustee,
ARCHON GROUP, L.P.,
as Servicer,
and
ARCHON GROUP, L.P.,
as Special Servicer
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INDENTURE AND SERVICING AGREEMENT
Dated and Effective as of [ ], 2002
-----------------
Secured Notes, Series 2002-SSCC, due May 31, 2010
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318 OF THE
TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- --------------
(S) 310 (a) (1)................................................ 6.7
(a) (2)................................................ 6.7
(a) (3)................................................ 6.19(b)
(a) (4)................................................ Not Applicable
(b).................................................... 6.12, 6.10
(S) 311 (a).................................................... 6.21
(b).................................................... 6.21
(S) 312 (a).................................................... 3.7(a)
(b).................................................... 3.7(b)
(c).................................................... 3.7(c)
(S) 313 (a).................................................... 6.18(a)
(b).................................................... 6.18(a)
(c).................................................... 6.18(a)
(d).................................................... 6.18(b)
(S) 314 (a).................................................... 8.1(b)
(b).................................................... 8.1(c)
(c) (1)................................................ 1.15
(c) (2)................................................ 1.15
(c) (3)................................................ Not Applicable
(d).................................................... 4.6
(e).................................................... 1.15
(S) 315 (a).................................................... 6.1(b), 6.1(c)
(b).................................................... 6.3
(c).................................................... 6.1(d)
(d).................................................... 6.1
(e).................................................... 5.14
(S) 316 (a).................................................... 5.12, 5.13
(a) (2)................................................ Not Applicable
(b).................................................... 5.8
(c).................................................... 1.3(c)
(S) 317 (a) (1)................................................ 5.3
(a) (2)................................................ 5.4
(b).................................................... 10.3
(S) 318 ....................................................... 1.16
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................. 1
SECTION 1.1 Definitions............................................................ 1
SECTION 1.2 Form of Documents Delivered to Trustee................................. 15
SECTION 1.3 Acts of Holders........................................................ 16
SECTION 1.4 Computation of Principal Amount........................................ 17
SECTION 1.5 Notices................................................................ 17
SECTION 1.6 Notice to Holders of Notes............................................. 18
SECTION 1.7 Successors and Assigns................................................. 18
SECTION 1.8 Separability Clause.................................................... 18
SECTION 1.9 Benefits of Indenture.................................................. 18
SECTION 1.10 Governing Law.......................................................... 19
SECTION 1.11 Execution in Counterparts.............................................. 19
SECTION 1.12 Security Agreement..................................................... 19
SECTION 1.13 Third-Party Beneficiary................................................ 19
SECTION 1.14 No Liability of Exculpated Persons..................................... 19
SECTION 1.15 Compliance Certificates and Opinions................................... 21
SECTION 1.16 Conflict with Trust Indenture Act...................................... 21
ARTICLE II FORMS OF THE NOTES....................................................... 21
SECTION 2.1 Forms Generally........................................................ 21
SECTION 2.2 Form of Trustee's Certificate of Authentication........................ 22
SECTION 2.3 Form of the Notes...................................................... 22
SECTION 2.4 Legend................................................................. 22
SECTION 2.5 Global Notes........................................................... 23
ARTICLE III THE NOTES................................................................ 24
SECTION 3.1 Equal and Ratable Notes; Amount; Authorization......................... 24
SECTION 3.2 Denominations.......................................................... 24
SECTION 3.3 Conditions Precedent to Issuance of Notes.............................. 25
SECTION 3.4 Execution, Authentication and Delivery of the Notes.................... 26
SECTION 3.5 Deposit Account, Collection Account, Payment Account, Holdover Account,
Redemption Account................................................... 26
SECTION 3.6 Registration; Fiscal Agent............................................. 29
SECTION 3.7 Holder Lists........................................................... 30
SECTION 3.8 Transfer and Exchange.................................................. 30
SECTION 3.9 Mutilated, Destroyed, Lost and Stolen Notes............................ 31
SECTION 3.10 Interest............................................................... 32
SECTION 3.11 Payment of Principal and Interest...................................... 32
SECTION 3.12 Interest on New Notes.................................................. 33
SECTION 3.13 Cancellation........................................................... 34
SECTION 3.14 Fiscal Agent to Hold Money in Trust.................................... 34
ARTICLE IV RELEASE OF COLLATERAL; SATISFACTION AND DISCHARGE OF INDENTURE........... 34
SECTION 4.1 Release................................................................ 34
SECTION 4.2 Satisfaction and Discharge of Indenture................................ 35
SECTION 4.3 Application of Trust Money............................................. 36
SECTION 4.4 Repayment to Issuer.................................................... 36
SECTION 4.5 Reinstatement.......................................................... 36
SECTION 4.6 Trust Indenture Act.................................................... 36
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ARTICLE V REMEDIES.................................................................. 36
SECTION 5.1 Events of Default....................................................... 36
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment...................... 37
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Servicer........ 38
SECTION 5.4 Special Servicer May File Proofs of Claim............................... 39
SECTION 5.5 Servicer May Enforce Claims Without Possession of Notes................. 39
SECTION 5.6 Application of Money Collected.......................................... 40
SECTION 5.7 Limitation on Suits..................................................... 40
SECTION 5.8 Unconditional Right of Holders to Receive Principal and Interest........ 41
SECTION 5.9 Restoration of Rights and Remedies...................................... 41
SECTION 5.10 Rights and Remedies Cumulative.......................................... 41
SECTION 5.11 Delay or Omission Not Waiver............................................ 42
SECTION 5.12 Control by Holders...................................................... 42
SECTION 5.13 Waiver of Past Defaults................................................. 43
SECTION 5.14 Undertaking for Costs................................................... 43
ARTICLE VI THE TRUSTEE............................................................... 43
SECTION 6.1 Certain Duties and Responsibilities..................................... 43
SECTION 6.2 Money Held in Trust..................................................... 47
SECTION 6.3 Notice of Defaults...................................................... 47
SECTION 6.4 Certain Rights of Trustee............................................... 48
SECTION 6.5 Compensation and Reimbursement.......................................... 48
SECTION 6.6 Confidentiality......................................................... 49
SECTION 6.7 Corporate Trustee Required; Eligibility................................. 49
SECTION 6.8 Representations and Warranties of the Trustee........................... 50
SECTION 6.9 Merger, Conversion, Consolidation or Succession to Business............. 51
SECTION 6.10 Resignation and Removal; Appointment of Successor....................... 51
SECTION 6.11 Acceptance of Appointment by Successor.................................. 52
SECTION 6.12 Conflicting Interests................................................... 53
SECTION 6.13 Self Dealing............................................................ 53
SECTION 6.14 Investments............................................................. 53
SECTION 6.15 Unclaimed Funds......................................................... 53
SECTION 6.16 Illegal Acts............................................................ 54
SECTION 6.17 Communications to be Sent to the Issuer................................. 54
SECTION 6.18 Reports by Trustee...................................................... 54
SECTION 6.19 Separate Trustees and Co-trustees....................................... 55
SECTION 6.20 Withholding and Information Reporting................................... 56
SECTION 6.21 Preferential Collection of Claims Against Company....................... 56
ARTICLE VII THE SERVICER AND SPECIAL SERVICER......................................... 56
SECTION 7.1 Servicer to Act as Servicer; Special Servicer to Act as Special Servicer 56
SECTION 7.2 Sub-Servicing Agreements................................................ 57
SECTION 7.3 Certain Duties and Responsibilities..................................... 58
SECTION 7.4 Payment of Taxes and Other Charges, Etc................................. 59
SECTION 7.5 Maintenance of Insurance and Errors and Omissions and Fidelity Coverage. 60
SECTION 7.6 Application of Funds in Event of Default................................ 60
SECTION 7.7 Realization upon the Underlying Collateral.............................. 61
SECTION 7.8 Trustee to Cooperate: Release of Original Security Documents............ 63
SECTION 7.9 Title and Management of Foreclosed Collateral........................... 63
SECTION 7.10 Sale of Foreclosed Collateral........................................... 64
SECTION 7.11 Servicing Compensation.................................................. 65
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SECTION 7.12 Reports to the Trustee......................................................... 66
SECTION 7.13 Annual Statement as to Compliance.............................................. 66
SECTION 7.14 Access to Certain Documentation Regarding the Note Indebtedness................ 66
SECTION 7.15 Inspections.................................................................... 67
SECTION 7.16 Advances....................................................................... 67
SECTION 7.17 Appointment of Special Servicer................................................ 68
SECTION 7.18 Transfer of Servicing Between Servicer and Special Servicer; Record Keeping.... 68
SECTION 7.19 Rights of the Issuer with Respect to the Servicer.............................. 69
SECTION 7.20 Limitation on the Liability of the Servicer and Others......................... 69
SECTION 7.21 Servicer and Special Servicer Not to Resign; Termination of Servicer by Holders 71
SECTION 7.22 Merger or Consolidation of the Servicer........................................ 72
SECTION 7.23 Servicer Default............................................................... 72
SECTION 7.24 Remedies of Trustee............................................................ 74
SECTION 7.25 Directions by Holders and Duties of Trustee During Servicer Default............ 74
SECTION 7.26 Trustee to Act; Appointment of Successor....................................... 75
SECTION 7.27 Notification to Holders........................................................ 76
SECTION 7.28 Waiver of Past Events of Default............................................... 76
SECTION 7.29 Representations and Warranties................................................. 76
ARTICLE VIII THE ISSUER....................................................................... 77
SECTION 8.1 Reports by the Issuer.......................................................... 77
SECTION 8.2 Representations, Warranties and Covenants of the Issuer........................ 78
ARTICLE IX SUPPLEMENTAL INDENTURES; AMENDMENTS.............................................. 79
SECTION 9.1 Supplemental Indentures or Amendments Without Consent of Holders............... 79
SECTION 9.2 Supplemental Indentures or Amendments With Consent of Holders.................. 80
SECTION 9.3 Delivery of Supplements........................................................ 81
SECTION 9.4 Opinion of Counsel............................................................. 81
ARTICLE X COVENANTS; WARRANTIES............................................................ 81
SECTION 10.1 Payment of Principal and Interest.............................................. 81
SECTION 10.2 Maintenance of Office or Agency................................................ 81
SECTION 10.3 Fiscal Agent; Money for Note Payments to be Held in Trust...................... 82
SECTION 10.4 Entity Existence............................................................... 82
SECTION 10.5 Payment of Taxes and Other Claims.............................................. 82
SECTION 10.6 Maintenance of Lien and Recording.............................................. 82
SECTION 10.7 Performance and Enforcement.................................................... 83
SECTION 10.8 Negative Covenants............................................................. 83
SECTION 10.9 Statement as to Compliance..................................................... 84
ARTICLE XI REDEMPTION OF NOTES.............................................................. 84
SECTION 11.1 Applicability of Article....................................................... 84
SECTION 11.2 Selection by Trustee of Notes to be Redeemed................................... 85
SECTION 11.3 Notice of Redemption........................................................... 85
SECTION 11.4 Deposit of Redemption Price.................................................... 85
SECTION 11.5 Notes Payable on Redemption Date............................................... 85
SECTION 11.6 Notes Redeemed in Part......................................................... 86
SECTION 11.7 Holders' Redemption Right...................................................... 86
ARTICLE XII MEETINGS OF HOLDERS OF NOTES..................................................... 88
SECTION 12.1 Purposes for Which Meetings May Be Called...................................... 88
SECTION 12.2 Call, Notice and Place of Meetings............................................. 88
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SECTION 12.3 Persons Entitled to Vote at Meetings..................................... 88
SECTION 12.4 Quorum; Action........................................................... 88
SECTION 12.5 Determination of Voting Rights; Conduct and Adjournment of Meetings...... 89
SECTION 12.6 Counting Votes and Recording Action of Meetings.......................... 89
EXHIBITS
A Form of Note
B Assignment
C List of Authorized Persons
D Request for Release of Documents
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INDENTURE AND SERVICING AGREEMENT, dated and effective as of [ ],
2002 (this "Indenture"), among SOUTHWEST SHOPPING CENTERS CO. II, L.L.C., as
issuer (defined herein as the "Issuer"), having an address at c/o First Union
Real Estate Equity and Mortgage Investments, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000; THE BANK OF NEW YORK, as trustee (defined herein,
together with its successors and any separate or co-trustee, as the "Trustee"),
having an address at 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000;
ARCHON GROUP, L.P., as servicer (defined herein together with its successors,
the "Servicer"), having an address at 000 X. Xxx Xxxxxxx Xxxx., Xxxxx 000,
Xxxxxx, Xxxxx 00000; and ARCHON GROUP, L.P. as special servicer (defined herein
together with its successors, the "Special Servicer") having an address at 000
X. Xxx Xxxxxxx Xxxx., Xxxxx 000 Xxxxxx, Xxxxx 00000.
RECITALS OF THE ISSUER
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for the issuance of its notes or other evidences of indebtedness
(herein individually called a "Note" and collectively called the "Notes") to be
issued as provided in this Indenture in the form of Secured Notes, Series
2002-SSCC, due May 31, 2010, in an aggregate principal amount equal to
$20,000,000.
All things necessary to make the Notes, when executed by the Issuer and
authenticated and delivered by the Trustee hereunder and duly issued by the
Issuer, the valid and legally binding obligations of the Issuer enforceable in
accordance with their terms, and to make this Indenture a valid and legally
binding agreement of the Issuer, the Servicer, the Special Servicer and the
Trustee enforceable in accordance with its terms, except in each case as such
enforcement may be limited by bankruptcy, fraudulent conveyance or transfer,
insolvency, reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law), have been done.
GENERAL COVENANT
IT IS HEREBY COVENANTED AND DECLARED that the Notes are to be authenticated
and delivered by the Trustee (or any Authenticating Agent), and the Collateral
is to be held and applied by the Trustee, subject to the further covenants,
conditions and trusts hereinafter set forth, and the Issuer does hereby
represent and warrant, and covenant and agree, to and with the Trustee, the
Special Servicer, and the Servicer, for the equal and proportionate benefit and
security of the Trustee for the benefit of the Holders of Notes as follows:
ARTICLE I
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
in the United States;
(c) the word "including" shall be construed to be followed by the words
"without limitation";
(d) section headings are for the convenience of the reader and shall not
be considered in interpreting this Indenture or the intent of the parties
hereto;
(e) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(f) the words "immediately available funds" shall have the same meaning
as "same day funds" when used herein; and
ACT has the meaning stated in Section 1.3.
ADVANCE has the meaning stated in Section 7.16(a).
ADVANCE INTEREST RATE has the meaning stated in Section 7.16(b).
AFFILIATE of any Person means (i) any other Person which, directly or
indirectly, is in Control of, is controlled by or is under common control with,
such Person; (ii) any other Person who is a director or officer of (x) such
Person, (y) any subsidiary of such Person, or (z) any Person described in
clause (i) above, or (iii) any corporation, limited liability company or
partnership which has a director any Person described in clause (ii) above. For
purposes of this definition, one entity (the "controlled entity") is controlled
by another (the "controlling entity") if the controlling entity has the power,
directly or indirectly, to direct or cause the direction of the management and
policies of the controlled entity, whether through the ownership of voting
securities, by contract, or otherwise. A controlling entity shall be deemed to
have control of a controlled entity in the following circumstances: (i) if the
controlled entity is a corporation, the controlling entity owns more than
fifty-one percent (51%) of the shares of the controlled entity's capital stock
that have voting power to elect directors, including shares that have voting
power by reason of the occurrence of one or more conditions or contingencies;
(ii) if the controlled entity is a limited partnership, the controlling entity
both owns more than fifty-one percent (51%) of the equity interests in the
partnership and controls (in accordance with the balance of this definition)
the general partner of the partnership; (iii) if the controlling entity is a
limited liability company, the controlling entity either owns more than
fifty-one percent (51%) of the equity interests in the limited liability
company or controls (in accordance with the balance of this definition) a
majority of the managers or members of the limited liability company; or (iv)
if the controlling entity is a business trust, the controlling entity either
owns more than fifty-one percent (51%) of the equity interests in the business
trust or controls (in accordance with the balance of this definition) a
majority of the trustees of the business trust.
AGENT MEMBERS has the meaning stated in Section 2.5(e).
APPRAISAL means an appraisal of the Underlying Collateral prepared by an
independent appraiser, selected by the Servicer or Special Servicer, as
applicable, that is a MAI, and that, if the state in which the portion of the
property being appraised certifies or licenses appraisers, is certified or
licensed in such state, and who has a minimum of five years' experience in the
appraisal of properties comparable to the property being appraised.
ASSIGNMENT OF CONTRACTS means the Assignment of Leases, Permits, and
Contracts entered into as of the date hereof between Issuer and FUR, as the
same may be amended or supplemented from time to time.
ASSIGNMENT OF LEASES means the Assignment of Licenses and Rents entered into
as of the date hereof between Issuer and FUR, as the same may be amended or
supplemented from time to time.
ASSIGNMENT OF MANAGEMENT AGREEMENT means the Assignment of Management
Agreement and Subordination of Management Fees entered into as of the date
hereof between Issuer and FUR, as the same may be amended or supplemented from
time to time.
AUTHENTICATING AGENT means the Trustee and/or any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate and deliver the Notes.
Written notice of such authorization shall be transmitted to the Issuer by the
Trustee in a timely manner.
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AUTHORIZED NEWSPAPER means, so long as the Notes are listed on a securities
exchange or an over-the-counter market and the rules of such exchange or market
so require, a newspaper published in the city in which such securities exchange
or market is located. If, because of temporary or permanent suspension of
publication or general circulation of any newspaper or for any other reason, it
is impossible or, in the opinion of the Trustee, impracticable to make
reasonable publication of any notice required herein in a newspaper published
in the city in which the securities exchange or market is located, "AUTHORIZED
NEWSPAPER" shall mean any publication in a newspaper of general circulation in
the United States.
AUTHORIZED PERSON, when used with respect to the Issuer, has the meaning
stated in Section 3.4 and, when used with respect to the Servicer or Special
Servicer, means a Servicing Officer.
BASE INTEREST RATE for the Notes has the meaning stated in Section 3.10(b).
BUSINESS DAY means any day other than a Saturday or a Sunday or a legal
holiday on which national banks in the State of New York or Illinois are closed.
CAPITAL EXPENDITURES means the amount expended for items capitalized under
GAAP, including expenditures for building improvements or major repairs,
leasing commissions and tenant improvements.
CASH means coin or currency of the United States or immediately available
federal funds, including such funds delivered by wire transfer.
CASH MANAGEMENT AGREEMENT means the cash management agreement dated as of
[ ], 2002 between FUR, The Bank of New York, and Issuer, as the same
may be amended or supplemented from time to time.
CASUALTY ACCOUNT has the meaning stated in Section 10.7(b).
CERCLA means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
CLOSING DATE means [ ], 2002.
CODE means the United States Internal Revenue Code of 1986, as amended, and
applicable Treasury Department regulations thereunder.
COLLATERAL means the Indenture Collateral and the Underlying Collateral or
both, as appropriate in the context in which such term is used in this
Indenture.
COLLATERAL ASSIGNMENT OF MORTGAGE means, that certain Collateral Assignment
of Leasehold Mortgage dated as of the date hereof, made by the Issuer in favor
of the Trustee, as the same may be amended or supplemented from time to time.
COLLATERAL ASSIGNMENT OF UNDERLYING NOTES AND SECURITY DOCUMENTS means that
certain Collateral Assignment of Underlying Notes and Security Documents dated
as of the date hereof made by the Issuer in favor of the Trustee.
COLLATERAL VALUE means as of any date with respect to U.S. Government
Securities theretofore delivered to the Trustee, the aggregate amount of
payments of principal of U.S. Government Securities and the predetermined and
certain income therefrom that will be paid or payable to the Servicer on behalf
of the Trustee on or before the second Business Day prior to each day on which
payments are due on the obligations in respect of which such U.S. Government
Securities were delivered, without consideration of any reinvestment of such
income, PLUS the face amount of any Cash, all as certified in writing to the
Trustee and Servicer (which certificate may be
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conclusively relied upon by the Trustee and the Servicer absent manifest error)
by a recognized and reputable independent certified public accounting firm or
investment banking firm selected by the Issuer (unless reasonably disapproved
by the Trustee).
COLLECTION ACCOUNT has the meaning stated in Section 3.5(a).
COMMISSION means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
CONFIDENTIAL INFORMATION has the meaning stated in Section 6.6.
CORPORATE TRUST OFFICE means the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
as of the Closing Date is 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
CUSTODIAN means The Bank of New York, and any successor custodian, as
custodian of the Global Notes for DTC under custody agreements, or any similar
successor agreement or agreements.
DEBT SERVICE means for any period, all payments of interest, if any, payable
by the Underlying Borrowers under the terms of the Underlying Loans during such
period, excluding balloon payments of principal or accrued interest, if any,
due at maturity.
DEBT SERVICE COVERAGE RATIO means the ratio obtained by dividing Net
Operating Income for the most recently completed Interest Period by Debt
Service for such Interest Period.
DEBT SERVICE COVERAGE RATIO CALCULATION DATE means the date on which the
Issuer and/or the Underlying Borrowers deliver or are required to deliver
financial statements pursuant to the Mortgage and the Mezzanine Loan Agreement.
DEFAULT RATE has the meaning stated in Section 3.11(d).
DEPOSIT ACCOUNT BANK means The Bank of New York.
DEPOSITARY means, with respect to the Global Notes, DTC or such other Person
as shall be designated as Depositary by the Issuer pursuant to Section 2.5(a)
of this Indenture.
DILLARD'S EVENT means the commencement of construction of a mall in the
Little Rock metropolitan area with Dillard's Department Store as an anchor,
unless Xxxxxxx'x, Inc. first renews its operating agreement with Park Plaza
Mall so that the operating agreement remains in effect through the maturity
date of the Mezzanine Loan.
DOLLARS, U.S.$ and $ mean such coin or currency of the United States as, at
the time, shall be legal tender for the payment of public or private debts.
DTC means The Depository Trust Company, a New York corporation.
ELECTION FORM means a form sent to each common shareholder of First Union
pursuant to the Merger Agreement and on which such holder, if it elects to
receive Notes in the merger, may elect to exercise its Redemption Right with
respect to such Notes in accordance with Section 11.7 hereof and on which the
beneficial owner of such Notes shall make the certifications described in
Section 11.7(b) hereof.
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ELIGIBLE ACCOUNT means an identifiable account separate from all other funds
held by the holding institution that is either (i) an account or accounts
maintained with a federal or state-chartered depository institution or trust
company or (ii) a segregated trust account or accounts maintained with a
federal or state-chartered depository institution or trust company acting in
its fiduciary capacity, which may be the Trustee, and which, in the case of a
state-chartered depository institution or trust company is subject to
regulations substantially similar to 12 C.F.R. 9.10(b), and has a combined
capital and surplus of at least $500,000,000 and is subject to supervision or
examination by federal or state authority. An Eligible Account will not be
evidenced by a certificate of deposit, passbook or other instrument.
ELIGIBLE INVESTMENTS has the meaning stated in Section 6.14.
ENVIRONMENTAL INDEMNITY means the environmental indemnity provisions set
forth in the Underlying Loan Documentation.
ENVIRONMENTAL LAWS means any present and future federal, state and local
laws, statutes, ordinances, rules, regulations, standards, policies and other
government directives or requirements, as well as common law, including but not
limited to CERCLA and the Resource Conservation and Recovery Act, that apply to
Underlying Borrowers and relate to Hazardous Materials or protection of human
health or the environment.
EVENT has the meaning stated in Section 6.1(a)(viii).
EVENT OF DEFAULT has the meaning stated in Section 5.1.
EXCHANGE ACT means the Securities Exchange Act of 1934, as amended from time
to time, any successor statute thereto, and the rules and regulations of the
Commission promulgated thereunder from time to time.
EXIT FEE means any Exit Fee, as defined in the Mezzanine Note, received by
the Issuer in connection with a repayment of the Mezzanine Note.
EXCULPATED PERSONS has the meaning stated in Section 1.14(a).
FHLMC means Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of
the Emergency Home Finance Act of 1970, as amended, or any successor thereto.
FISCAL AGENT has the meaning stated in Section 3.6(b).
FNMA means the Federal National Mortgage Association, a federally chartered
and privately owned corporation organized and existing under the Federal
National Mortgage Association Charter Act or any successor thereto.
FORECLOSED COLLATERAL means any Collateral the ownership of which is
acquired by the Special Servicer in the name of the Trustee or its nominee for
the benefit of the Holders by foreclosure or acceptance of a deed in lieu of
foreclosure or otherwise.
FORECLOSURE PROCEEDS means proceeds, net of any related expenses of the
Servicer, the Special Servicer, or the Trustee, received in respect of any
Foreclosed Collateral prior to the final liquidation of the Foreclosed
Collateral.
FUR means First Union Real Estate Equity and Mortgage Investments, Inc., an
Ohio business trust.
GGC means Gotham Golf Corp., a Delaware corporation and wholly owned
subsidiary of GGP.
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GGP means Gotham Partners, L.P., a Delaware limited partnership.
GOVERNMENTAL AUTHORITY means any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
GLOBAL NOTE has the meaning set forth in Section 2.3.
GROSS REVENUE means, for any period and all or any portion of the
Collateral, revenue derived from the ownership and operation of such Collateral
from whatever source, including but not limited to, rents (without giving
effect to straight-lining of rents), but excluding sales, use and occupancy or
other taxes on receipts required to be accounted for by the Underlying
Borrowers or Issuer to any governmental authority, non-recurring revenues,
refunds and uncollectible accounts, proceeds of casualty insurance and any
other insurance or similar awards (other than business interruption or other
loss of income insurance), and any disbursements to the Underlying Borrowers or
Issuer of any escrow funds established by the Mortgage Security Documents.
HAZARDOUS MATERIALS means petroleum and petroleum products and compounds
containing them, including gasoline, diesel fuel and oil; explosives; flammable
materials; radioactive materials; polychlorinated biphenyls ("PCBs") and
compounds containing them; lead and lead-based paint; asbestos or
asbestos-containing materials in any form that is or could become friable;
underground or above-ground storage tanks, whether empty or containing any
substance; any substance the presence of which on an Underlying Property is
prohibited by any federal, state or local authority; any substance that
requires special handling; and any other material or substance now or in the
future defined as a "hazardous substance", "hazardous material", "hazardous
waste", "toxic substance", "toxic pollutant", "contaminant", or "pollutant"
within the meaning of any Environmental Law.
HOLDER means, with respect to any Note, the Person in whose name such Note
is registered in the Register.
HOLDOVER ACCOUNT has the meaning stated in Section 3.5(g).
INDENTURE has the meaning stated in the introductory paragraph hereto.
INDENTURE COLLATERAL means, collectively, the Underlying Loans and all
monies, accounts, instruments, or other property constituting a part of the
security for the Holders of Notes for the performance by the Issuer of its
obligations hereunder and conveyed to the Trustee in trust for the benefit of
the Holders of Notes, the proceeds of the foregoing, and all amounts in the
Payment Account, Collection Account, Mortgage Deposit Account, Mezzanine
Deposit Account, the Redemption Account, the REO Property Account, or any other
account established hereunder or under the Cash Management Agreement or the
Mezzanine Cash Management Agreement.
INDENTURE SECURITY DOCUMENTS means the Collateral Assignment of Mortgage,
the Collateral Assignment of Underlying Notes and Security Documents, the
Notes, the Indenture, the financing statements now or hereafter executed in
connection herewith and any and all other agreements, certificates (including,
without limitation, Officer's Certificates), instruments or documents executed
by the Issuer evidencing or securing the Notes.
INDEPENDENT when used with respect to any specified Person means such a
Person who (i) does not have any direct financial interest or material indirect
financial interest in the Issuer, any Underlying Borrower, the Trustee, the
Fiscal Agent, the Special Servicer or the Servicer or any Holder of a Note or
in any of their respective Affiliates and (ii) is not an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions of or for the Issuer, the Trustee, the Fiscal Agent, the Special
Servicer or the Servicer or any Holder of a Note or any of their respective
Affiliates.
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INSURANCE PROCEEDS means amounts, awards or payments payable to the Issuer
or Underlying Borrowers in respect of all or any part of the Collateral on the
Underlying Properties in connection with the damage or destruction thereof
(after the deduction therefrom and payment to the Issuer or Underlying
Borrowers, respectively, of any and all reasonable expenses incurred by the
Issuer or Underlying Borrowers in the recovery thereof, including all
attorneys' fees and expenses, the fees of insurance experts and adjusters and
the costs incurred in any litigation or arbitration with respect to such damage
or destruction).
INTEREST PERIOD means each period that runs, with respect to any Payment
Date in July, from and including the first day in the immediately preceding
January or, with respect to any Payment Date in January, from and including the
first day in the immediately preceding July, in either case to and excluding
the first day of the calendar month containing such Payment Date; PROVIDED that
the first Interest Period shall commence on the Closing Date and end on (but
exclude) the first day of January, 2003 and the final Interest Period shall end
on (but exclude) the Maturity Date or the Redemption Date (other than in
connection with a Redemption with respect to which the Issuer has made a
designation pursuant to Section 11.7(d)), as applicable.
INTERESTED PERSON means, as of any date of determination, the Issuer, any
Underlying Borrower, the Servicer, the Special Servicer, the Manager, the
Trustee, the Fiscal Agent (if any), any Holder or, in each such case, any of
its Affiliates.
ISSUER has the meaning stated in the introductory paragraph hereto.
ISSUER REQUEST or ISSUER ORDER means a written request or order signed in
the name of the Issuer by any Authorized Person.
LEASE shall mean any lease, sublease, further sublease, license, occupancy
agreement or other agreement existing on the date hereof or hereafter entered
into by an owner of an Underlying Property permitting the use or enjoyment of
any part of the Underlying Property by another Person, and every modification,
amendment, or extension relating thereto.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or otherwise), preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, the filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction in respect of any of the
foregoing and a mechanics' or materialmens' lien).
LIQUIDATED COLLATERAL means Collateral that has been liquidated and, with
respect to which, the Special Servicer has determined that all amounts which it
expects to recover from or on account of such Collateral have been recovered.
LIQUIDATION EXPENSEs means reasonable and customary expenses (other than
expenses actually covered by insurance and reimbursed by the insurer to the
Servicer, the Special Servicer or the Trustee) incurred by the Servicer, the
Special Servicer or the Trustee in connection with the liquidation of the
Collateral, such expenses including, without limitation, legal fees and
expenses, appraisal fees, the costs of any environmental reports, receivership
fees, brokerage fees, trustee and co-trustee fees, if any. Liquidation Expenses
shall not include any expenses actually incurred by the Trustee, the Special
Servicer or the Servicer that were subsequently reimbursed to the Servicer, the
Special Servicer or the Trustee or that were netted against income from the
Foreclosed Collateral and were considered in the calculation of the amount of
Foreclosure Proceeds pursuant to the definition thereof.
LIQUIDATION FEE means a fee payable to the Special Servicer equal to 1% of
the Net Liquidation Proceeds relating to each Liquidated Collateral, provided
that the aggregate of all Liquidation Fees paid hereunder shall not exceed
$100,000.
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LIQUIDATION PROCEEDS means amounts received by the Servicer or the Special
Servicer in connection with the liquidation of the Collateral, whether through
judicial foreclosure, sale or otherwise, other than amounts required to be paid
to the Issuer or an Underlying Borrower pursuant to law or the terms of this
Indenture, the Mortgage, the Mezzanine Loan Agreement, or the other Security
Documents.
LOAN EVENT means (i) the Issuer has not made one semi-annual payment of
interest on the Notes; (ii) the Issuer has defaulted in its obligation to make
the payment of principal due on the Maturity Date or to pay the Redemption
Price on a Redemption Date; (iii) the Servicer has received notice that the
Issuer or any Underlying Borrower has become the subject of any bankruptcy,
insolvency or similar proceeding, admitted in writing its inability to pay its
debts as they come due or made an assignment for the benefit of creditors; (iv)
the Servicer has received notice of a foreclosure or threatened foreclosure of
any lien on all or any portion of the Collateral; (v) the Issuer has expressed
to the Servicer that the Issuer is unable to pay the Notes in a timely manner,
or in the judgment of the Servicer (consistent with the Servicing Standards),
an Event of Default (other than as set forth in the foregoing clauses) is
imminent and, in either such case, the Special Servicer will be required to
engage in modification negotiations or other typical special servicing
activities in connection therewith; or (vi) an Event of Default of which the
Servicer has notice; PROVIDED that a Loan Event will cease (a) with respect to
the circumstances described in clause (i) above, when the Issuer has brought
the Notes current and thereafter made the next semi-annual payment in full when
due, including pursuant to a workout of the Mortgage Loan, the Mezzanine Loan
and the terms of the Notes, (b) with respect to the circumstances described in
clauses (iii), (iv) and (v) above, when such circumstances cease to exist in
the good faith judgment of the Servicer, or (c) with respect to the
circumstances described in clause (vi) above, when such Event of Default is
cured; as long as, in the case of each of clauses (a), (b) and (c) of this
proviso, at that time no other circumstance exists that would constitute a Loan
Event.
MAI means a Member of the Appraisal Institute.
MAJORITY HOLDERS, with respect to any vote, request, authorization,
direction, consent or similar Act, means the Holders of more than 50% in
aggregate principal amount of the Outstanding Notes, PROVIDED that if (i) the
Holders of not less than 66 2/3% in aggregate principal amount of the
Outstanding Notes (regarding as not being Outstanding, for the purposes of this
clause (i) only, any Notes known to a Responsible Officer of the Trustee to be
owned by GGP, GGC, Gotham Partners, L.P., or any other Affiliate of the Issuer,
with the exception of any such Notes that are pledged in good faith to a Person
that is not the Issuer or an Affiliate of the Issuer) shall make or provide a
contrary vote, request, authorization, direction, consent or similar Act, and
(ii) the Holders described in clause (i) above hold not less than 25% in
aggregate principal amount of the Outstanding Notes, then such contrary Act
shall be treated as the Act of the Majority Holders.
MANAGEMENT FEE means, as to any Underlying Property acquired by the Special
Servicer by foreclosure, a fee payable out of the Collateral to the Manager for
managing such property while it is owned by or on behalf of the Trustee, which
shall be reasonable and customary in the market in which such property is
located.
MANAGER has the meaning stated in Section 7.9(a).
MATURITY DATE means, with respect to any Notes, the date on which the
principal of such Notes shall become due and payable as herein provided,
whether at the Scheduled Maturity Date, by acceleration or otherwise, but not
including redemption.
MERGER AGREEMENT means the Agreement and Plan of Merger and Contribution
dated February 13, 2002, by and among FUR, First Union Management, Inc., a
Delaware corporation, GGP, Gotham Golf Partners, L.P., a Delaware limited
partnership, GGC, GGC sub Inc., a Delaware corporation and a wholly owned
subsidiary of GGC, Florida Golf Properties, Inc., a Florida corporation and the
sole general partner of GGP, and Florida Golf Associates, L.P., a Virginia
limited partnership.
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MEZZANINE CASH MANAGEMENT AGREEMENT means the mezzanine cash management
agreement dated as of [ ], 2002 between Xxxx Xxxxx 0, Xxx Xxxx xx Xxx
Xxxx and Issuer, as the same may be amended or supplemented from time to time.
MEZZANINE DEBT SERVICE SUB ACCOUNT has the meaning given to the term "Debt
Service Sub Account" in the Mezzanine Cash Management Agreement.
MEZZANINE DEPOSIT ACCOUNT has the meaning given to the term "Deposit
Account" in the Mezzanine Cash Management Agreement.
MEZZANINE EVENT OF DEFAULT has the meaning given to the term "Event of
Default" in the Mezzanine Loan Agreement.
MEZZANINE EXPENSES SUB ACCOUNT has the meaning given to the term "Expenses
Sub Account" in the Mezzanine Cash Management Agreement.
MEZZANINE LOAN means the indebtedness advanced to Park Plaza 1 by Issuer
pursuant to the Mezzanine Loan Agreement secured by the Mezzanine Pledge
Agreement and the other Mezzanine Security Documents and evidenced by the
Mezzanine Promissory Note dated as of [ ], 2002 made by Park Plaza 1
to the Issuer.
MEZZANINE LOAN AGREEMENT means the Mezzanine Loan Agreement dated as of
[ ], 2002, by and between Park Plaza 1 and Issuer, as the same may be
amended or supplemented from time to time.
MEZZANINE NOTE means the Mezzanine Promissory Note dated as of [ ],
2002 made by Park Plaza 1 to the Issuer evidencing the Mezzanine Loan and
secured by the Mezzanine Pledge Agreement.
MEZZANINE PLEDGE AGREEMENT means the Pledge and Security Agreement dated as
of [ ], 2002 by and between Park Plaza 1 and Issuer, as the same may
be amended or supplemented from time to time.
MEZZANINE RESIDUAL SUB ACCOUNT has the meaning given to the term "Residual
Sub Account" in the Mezzanine Cash Management Agreement.
MEZZANINE SECURITY DOCUMENTS means collectively, the Mezzanine Loan
Agreement, the Mezzanine Note, the Mezzanine Subordination of Management
Agreement, the Mezzanine Cash Management Agreement, the Mezzanine Pledge
Agreement and any and all other documents and agreements executed in connection
with the Mezzanine Loan, all as the same may be modified, supplemented,
consolidated, extended and reinstated from time to time.
MEZZANINE SUBORDINATION OF MANAGEMENT AGREEMENT means the Subordination of
Management Agreement and of Management Fees entered into of even date herewith
by and between Issuer and Park Plaza 1 and acknowledged by the Property
Manager, as the same may be amended or supplemented from time to time.
MORTGAGE means the Leasehold Mortgage, Security Agreement and Fixture Filing
dated as of [ ], 2002, granting the Issuer a first priority mortgage
lien on the FUR's interest in the Property (as defined therein), as the same
may be amended or supplemented from time to time.
MORTGAGE DEBT SERVICE SUB ACCOUNT has the meaning given to the term "Debt
Service Sub Account" in the Cash Management Account.
MORTGAGE DEPOSIT ACCOUNT has the meaning given to the term "Deposit Account"
in the Cash Management Account.
9
MORTGAGE LOAN means the indebtedness evidenced by the Mortgage Promissory
Note dated as of [ ], 2002 made by FUR to Issuer and secured by the
Mortgage and the other Mortgage Security Documents.
MORTGAGE NOTE means the Mortgage Promissory Note dated as of [ ],
2002 made by FUR to Issuer evidencing the Mortgage Loan and secured by the
Mortgage.
MORTGAGE RESIDUAL SUB ACCOUNT has the meaning given to the term "Residual
Sub Account" in the Cash Management Agreement.
MORTGAGE SECURITY DOCUMENTS means the Mortgage, the Mortgage Note, the
Assignment of Leases, the Assignment of Licenses, the Subordination of
Management Agreement, the Cash Management Agreement, the financing statements
now or hereafter executed in connection therewith and any and all other
agreements, certificates (including, without limitation, Officer's
Certificates), instruments or documents executed by the Underlying Borrowers
evidencing or securing the Mortgage Loan.
MORTGAGE SUBORDINATION OF MANAGEMENT AGREEMENT means the Assignment of
Management Agreement and Subordination of Management Fees entered into of even
date herewith by and between Issuer, FUR and Property Manager, as the same may
be amended or supplemented from time to time.
MORTGAGE TAXES AND INSURANCE SUB ACCOUNT has the meaning given to the term
"Taxes and Insurance Sub Account" in the Cash Management Account.
NET CASH FLOW, with respect to a specified period and with respect to all or
a portion of the Collateral, means, for any period, the excess, if any, of
Gross Revenue for the Collateral (or relevant portion thereof) determined for
such period over Operating Expenses for the Collateral (or relevant portion
thereof) determined for such period.
NET OPERATING INCOME means Gross Revenue minus Operating Expenses.
NET LIQUIDATION PROCEEDS means the Liquidation Proceeds received with
respect to the Collateral net of Liquidation Expenses incurred with respect
thereto.
NEW NOTE has the meaning stated in Section 3.9.
NONRECOVERABLE ADVANCE means any portion of an Advance proposed to be made
or previously made which has not been previously reimbursed to the Servicer or
the Special Servicer, as applicable, and which, in the good faith business
judgment of the Servicer or the Special Servicer, as applicable, will not or,
in the case of a proposed Advance, would not be ultimately recoverable from
late payments, Insurance Proceeds, Net Liquidation Proceeds and other
collections on or in respect of the Issuer's or Underlying Borrowers'
obligations under the Security Documents. The judgment or determination by the
Servicer or the Special Servicer, as applicable, that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute
a Nonrecoverable Advance shall be evidenced, in the case of the Servicer, by a
certificate of a Servicing Officer of the Servicer delivered to the Trustee and
the Issuer, and in the case of the Special Servicer, by a certificate of a
Servicing Officer of the Special Servicer delivered to the Servicer, the
Trustee and the Issuer, which in each case sets forth such judgment or
determination and the procedures and considerations of the Servicer or the
Special Servicer, as applicable, forming the basis of such determination
(including, but not limited to information selected by the Person making such
judgment or determination in its good faith discretion, such as related income
and expense statements, rent rolls, occupancy status, property inspection
reports, the written responses to any Servicer or Special Servicer inquiries
and third party engineering reports, environmental surveys or other third-party
reports). Notwithstanding the above, the Servicer shall be entitled to rely
upon any determination by the Special Servicer that any Advance previously made
is a Nonrecoverable Advance or that any proposed Advance would, if made,
constitute a Nonrecoverable Advance; notwithstanding the above, the Special
Servicer shall be entitled
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to rely upon any determination by the Servicer that any Advance previously made
is a Nonrecoverable Advance or that any proposed Advance would, if made,
constitute a Nonrecoverable Advance.
NOTE means any physical note issued hereunder, including, without
limitation, any Global Notes; PROVIDED, HOWEVER, that with respect to any
Global Note, the term "NOTE" also includes, when appropriate in context, any
interest in any Global Note in the authorized denomination as provided herein
of any Person as shown on the records of the Depositary.
NOTE INDEBTEDNESS means the indebtedness created pursuant to this Indenture,
evidenced by the Notes and secured by the Indenture Collateral.
NOTICE OF DEFAULT has the meaning stated in Section 5.1.
NRSRO means a nationally recognized statistical rating organization.
OFFICER'S CERTIFICATE means a certificate signed on behalf of the Issuer by
an Authorized Person.
OPERATING EXPENSES means, for any period and all or any portion of the
Collateral, all operating expenses (but not Capital Expenditures) actually
incurred by or charged by or to the Issuer or Underlying Borrowers
(appropriately prorated for any expenses that, although actually incurred in a
particular period, also relate to other periods) with respect to the ownership,
operation, leasing and management of such Collateral or the related Underlying
Properties in the ordinary course of business, determined in accordance with
GAAP, including any of the following, to the extent applicable: (1) personal
property taxes and real estate taxes; (2) sales taxes or any tax on rents; (3)
wages, salaries, payroll taxes and employee benefits; (4) costs of utility
services; (5) maintenance, repair and custodial costs; (6) premiums payable for
insurance carried on or with respect to such Underlying Properties; (7) office
supplies, other administrative expenses and professional fees; (8) costs of
advertising and marketing for such Underlying Properties; (9) costs of
telephone service; (10) costs of garbage removal; and (11) any compensation,
fees or reimbursements paid to a property manager.
OPINION OF COUNSEL means, when required to be delivered by the Issuer, a
written opinion of counsel selected by the Issuer, which shall be delivered at
the expense of the Issuer, and when required to be delivered by any other
Person, a written opinion of counsel who may be regular counsel to such Person,
reasonably acceptable to the Trustee and to any other party hereto to whom such
opinion is to be delivered pursuant to the terms of this Indenture.
OUTSTANDING, when used with respect to the Notes, means, as of the date of
determination, any Note theretofore authenticated and delivered under this
Indenture (including, as of such date, all Notes represented by Global Notes
authenticated and delivered under this Indenture), except the reduced portion
or portions of any Global Note, as such reduction or reductions shall have been
endorsed on such Global Note by the Trustee as provided herein and EXCEPT:
(i) Notes theretofore canceled by the Trustee or delivered to the Trustee
for cancellation (other than any Note as to which any amount that has become
due and payable in respect thereof has not been paid in full);
(ii) Notes for the payment or redemption or repurchase of which Cash
and/or Eligible Investments in the necessary amount have been deposited with
the Trustee in trust for the Holders of such Notes in accordance with this
Indenture (other than any such Notes that are the subject of a Redemption
with respect to which the Issuer has made a designation pursuant to Section
11.7(d)); PROVIDED that if such Notes are to be redeemed or repurchased,
notice of such redemption or repurchase has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee and the Servicer
has been made; and
(iii) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any such
Notes in respect of which there shall have been presented to
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the Trustee proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands such Notes are valid obligations of the Issuer;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes are present at a meeting of Holders
for quorum purposes or have given any request, demand, authorization, vote,
direction, notice, consent or waiver hereunder, any Notes owned by the Issuer
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, vote, direction, notice, consent or waiver or
upon any such determination as to the presence of a quorum, only Notes which a
Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the sole satisfaction of
the Trustee the pledgee's right to act with respect to such Notes and that the
pledgee is not the Issuer.
PARK PLAZA 1 means Park Plaza 1, L.L.C., a Delaware limited liability
company.
XXXX XXXXX 0 xxxxx Xxxx Xxxxx 0, X.X.X., a Delaware limited liability
company.
PARK PLAZA MALL means Park Plaza Mall, L.L.C., a Delaware limited liability
company.
PAYMENT ACCOUNT means the segregated trust account or accounts established
by the Trustee pursuant to Section 3.5(a)(ii).
PAYMENT DATE means the third Business Day of each July and January.
PAYMENT DATE STATEMENT means a statement prepared by the Servicer in respect
of the payments that shall be made on the next Payment Date setting forth:
(a) the amount of any Advances made by the Servicer or the Special
Servicer during the related Interest Period;
(b) the aggregate amount of prepayments of principal on the Underlying
Loans, if any, made during the related Interest Period;
(c) any amounts received by the Issuer during the related Interest Period
on account of any Exit Fee or late charges under the Mortgage Security
Documents and Mezzanine Security Documents, as described in Section 3.10(c).
(d) to the best of the Servicer's knowledge, whether any Loan Event or
Event of Default has occurred during the related Interest Period;
(e) any portion of the Collateral upon which the Special Servicer has
foreclosed;
(f) whether the Issuer, FUR, or Park Plaza 1 has declared bankruptcy, to
the extent known to the Servicer;
(g) the amount of proceeds from any liquidation or other disposition of
Foreclosed Collateral, if any, received by the Special Servicer during the
related Interest Period;
(h) the aggregate amount of the Servicing Fee, Special Servicing Fee,
Liquidation Fee, Work-out Fee and any other compensation paid or payable to
the Servicer or Special Servicer during the related Interest Period; and
(i) the balance in the Collection Account.
PERMITTED EXCEPTIONS means any liens on the Underlying Collateral the
existence of which is permitted by the terms of the Underlying Loan
Documentation.
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PERSON means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
PREDECESSOR NOTE of any particular Note means every previous Note evidencing
all or a portion of the same indebtedness as that evidenced by such particular
Note.
PRIME RATE means the prime rate as published in the Wall Street Journal. If
the Wall Street Journal has temporarily or permanently ceased publication, the
Prime Rate will be the prime rate as published in an Authorized Newspaper
selected by the Trustee.
PROCEEDS shall mean Insurance Proceeds and/or Taking Proceeds, as applicable.
PROPERTY MANAGER means each of Landau & Xxxxxx of Arkansas, Inc., an
Arkansas corporation, and Cornerstone Properties, Inc., an Indiana corporation,
and their permitted successors and assigns.
REDEMPTION ACCOUNT has the meaning stated in Section 3.5(h).
REDEMPTION AGENT means a Person designated by the Issuer for the purpose of
receiving Election Forms, making payments to the Holders pursuant to Section
11.7, and carrying out such further duties in relation to the Holders'
Redemption Right as are specified in Section 11.7 or shall be agreed between it
and the Issuer. The name and address of the Redemption Agent shall be printed
on the Election Form.
REDEMPTION DATE means the date fixed for such redemption by or pursuant to
this Indenture in accordance with Article XI.
REDEMPTION PRICE means the price at which such Note is to be redeemed
calculated pursuant to Article XI.
REDEMPTION RIGHT has the meaning stated in Section 11.7(a).
REGISTER has the meaning stated in Section 3.6(a).
REGISTRAR has the meaning stated in Section 3.6(a).
REGISTRATION STATEMENT means any registration statement on Form S-4 filed
with the Commission by the Issuer in respect of the Notes, including any
exhibits thereto, any information incorporated by reference therein, and any
amendments thereto.
REGULAR RECORD DATE for a Payment Date means the day which is five (5)
Business Days immediately preceding such Payment Date.
RELEASE PROPERTY has the meaning stated in Section 4.1.
REO PROPERTY ACCOUNT means an account held in trust of the Special Servicer,
on behalf of the Trustee, for the benefit of the Holders for the deposit
therein of all funds collected and received from any Foreclosed Collateral.
RESPONSIBLE OFFICER means any officer of the Trustee or the Fiscal Agent, as
the case may be, in the Corporate Trust Office and also means, with respect to
a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
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SCHEDULED MATURITY DATE means May 31, 2010. If the Scheduled Maturity Date
shall occur on a date that is not a Business Day, the applicable Scheduled
Maturity Date shall be the next succeeding Business Day and no further interest
or other payment shall be due any Holder as a result of such adjustment.
SECURITIES ACT means the Securities Act of 1933, as amended from time to
time, any successor statute thereto, and the rules and regulations of the
Commission promulgated thereunder from time to time.
SECURITY DOCUMENTS means the Indenture Security Documents, the Mortgage
Security Documents and the Mezzanine Security Documents.
SERVICER has the meaning stated in the introductory paragraph hereto.
SERVICER DEFAULT has the meaning stated in Section 7.23.
SERVICING FEE means an amount equal to $1,000 payable to the Servicer from
the Collection Account on the first Business Day of each month.
SERVICING OFFICER means any officer or employee of the Servicer or the
Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Note Indebtedness and the Underlying Loans
and whose name and specimen signature appear on a written list of servicing
officers furnished to the Trustee on the Closing Date by the Servicer or the
Special Servicer, as applicable, as such list may from time to time be amended
by the Servicer or the Special Servicer, as applicable.
SERVICING STANDARDS has the meaning stated in Section 7.1.
SPECIAL SERVICER has the meaning stated in the introductory paragraph hereto.
SPECIAL SERVICING FEE means an amount payable to the Special Servicer from
the Collection Account on the first Business Day of each month after the
occurrence of a Loan Event and while such Loan Event is continuing, equal to
$4,167.
SHAREHOLDER NOTE PURCHASE RIGHT has the meaning set forth in the Merger
Agreement.
TAKING shall mean a temporary or permanent taking by a government or
political subdivision thereof or by a governmental agency, as the result or in
lieu or in anticipation of the exercise of the right of condemnation or eminent
domain, of all or any part of any Underlying Property, or any interest therein
or right accruing thereto, including any right of access thereto or any change
of grade affecting any Underlying Property or part thereof.
TAKING PROCEEDS shall mean amounts, awards or payments payable to the
Underlying Borrowers or the Issuer in respect of all or any part of the
Underlying Properties in connection with the Taking thereof (after the
deduction therefrom and payment to the Underlying Borrowers or the Issuer,
respectively, of any and all reasonable expenses incurred by the Underlying
Borrowers or the Issuer in the recovery thereof, including all attorneys' fees
and expenses and the costs incurred in any litigation or arbitration with
respect to such Taking).
TAXES AND OTHER CHARGES means, collectively, Taxes and Other Charges (as
each term is defined in the Mortgage).
TERMINATION FEE means an amount payable to the Servicer prior to any
discharge of this Indenture pursuant to Section 4.2 that occurs prior to the
first anniversary of the Closing Date, equal to $10,000 less five-sixths of the
aggregate of all Servicing Fees paid to it hereunder on or prior to such date.
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TRUST INDENTURE ACT means the Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed; PROVIDED, HOWEVER, that in event
the Trust Indenture Act of 1939 is amended after such date, "TRUST INDENTURE
ACT" means to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
TRUSTEE means The Bank of New York, until a successor Person or successor
Persons shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "TRUSTEE" shall mean or include each Person who is
then a Trustee hereunder.
TRUSTEE FEE means an amount payable on each Payment Date from the Payment
Account equal to $4,000.
UNDERLYING BORROWER means each of FUR and Park Plaza 1; and UNDERLYING
BORROWERS means FUR and Park Plaza 1, collectively.
UNDERLYING COLLATERAL means (i) the Mortgage Security Documents and all
monies, accounts, instruments and other property pledged to the Issuer or in
which a lien or security interest has been granted to the Issuer as security
for the Mortgage Loan pursuant to any of the Mortgage Security Documents and
(ii) the Mezzanine Security Documents and all monies, accounts, instruments and
other property pledged to the Issuer or in which a lien or security interest
has been granted to the Issuer as security for the Mezzanine Loan pursuant to
any of the Mezzanine Security Documents and all proceeds of the foregoing.
UNDERLYING LOAN means each of the Mortgage Loan and the Mezzanine Loan.
UNDERLYING LOAN DOCUMENTATION means, collectively, the Mortgage and the
Mezzanine Loan Agreement.
UNDERLYING PROPERTIES means, collectively, the Premises (as defined in the
Mezzanine Loan Agreement) and the Property (as defined in the Mortgage).
U.S. GOVERNMENT SECURITIES means securities evidencing an obligation to pay
principal and interest in a full and timely manner that are (y) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (z) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of and guaranteed as a full faith
and credit obligation by the United States, which in either case are not
callable or redeemable at the option of the issuer thereof (including a
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such securities or a specific
payment of principal of or interest on any such securities held by such
custodian for the account of the holder of such depositary receipt; PROVIDED
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the securities or the
specific payment of principal of or interest on the securities evidenced by
such depository receipt).
WORK-OUT FEE means, with respect to any Loan Event that is terminated
following resolution of such Loan Event by a written agreement negotiated by
the Special Servicer, a fee equal to 1% of any amounts paid to or for the
benefit of the Holders pursuant to such agreement if and until another Loan
Event occurs, provided that the aggregate of all Work-Out Fees paid hereunder
shall not exceed $100,000 for each Loan Event that is terminated pursuant to a
written agreement negotiated by the Special Servicer.
SECTION 1.2 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by any
specified Person, it is not necessary that all such matters be certified by
only one such Person, or that they be so certified by only one document, but
one such Person may certify with respect to some matters and one or more other
such Persons may certify with respect to other matters, and any such Persons
may certify as to such matters in one or several documents.
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Any certificate of an officer of the Issuer may be based, insofar as it
relates to legal matters, upon an opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the opinion or representations with respect to the matters upon which the
certificate is based are erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters relating to the Issuer, upon a
certificate of, or representations by, an officer or officers of the Issuer
stating that the information with respect to such factual matters is in the
possession of the Issuer unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.3 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by the Holders
(i) may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing or (ii) may be embodied in and evidenced by the
record of Holders voting in favor thereof in person at any meeting of Holders
duly called and held in accordance with the provisions of Article XIII. Except
as herein otherwise expressly provided, such action will become effective when
such instrument or instruments of record are delivered to the Trustee, and,
where it is expressly required by this Indenture, to the Issuer. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "ACT" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agency or proxy, or of the holding by any Person of a Note, shall be
sufficient for any purpose of this Indenture or any other Security Document and
(subject to Section 6.1) conclusive in favor of the Servicer, Trustee and the
Issuer if made in the manner provided in this Section 1.3. The record of any
meeting of the Holders of Notes shall be proved in the manner provided in this
Section 1.3. With respect to authorization to be given or taken by the Holders
of Notes, the Trustee shall be authorized to follow the written directions or
the vote of the Majority Holders unless any greater or lower percentage is
required or permitted by the terms hereof.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The Issuer may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Issuer prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section
3.7(a)) prior to such first solicitation or vote, as the case may be. With
regard to any record date, only the Holders on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the relevant
action.
(d) The principal amount and identification numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Register for
the Notes.
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(e) Any request, demand, authorization, direction, notice, consent,
election, declaration, waiver or other act of the Holder of any Note shall bind
every future Holder of the same Note and the Holder of every Note issued upon
the transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Servicer, Special
Servicer, Trustee or Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 1.4 COMPUTATION OF PRINCIPAL AMOUNT.
Whenever this Indenture states that any action may be taken by a specified
percentage of Holders, such statement shall, unless otherwise specified, mean
that such action may be taken by the Holders of such specified percentage of
the aggregate principal amount of the Outstanding Notes to which such vote
relates.
SECTION 1.5 NOTICES.
Any notice, direction, request, consent, election, waiver or demand which by
any provision of this Indenture is required or permitted to be given may be
served by national overnight courier service or may be given or served by
facsimile only during business hours (as determined at the place of delivery)
(9 a.m.-5 p.m.) of the addressee on a Business Day (with a confirmation copy
sent by certified or registered mail, return receipt requested, or by national
overnight courier) or by certified or registered mail, in each case return
receipt requested, postage prepaid, to the address or addresses set forth below
or such other address or addresses in the continental United States as such
Person may designate in accordance with the provisions hereof.
If to the Issuer, addressed to it at:
Southwest Shopping Centers Co. II, L.L.C.
c/o First Union Real Estate Equity and Mortgage Investments
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone:
Facsimile:
if to the Servicer, addressed to it at:
Archon Group, L.P.
000 X. Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Special Servicer, addressed to it at:
Archon Group, L.P.
000 X. Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to the Trustee and the Servicer; and
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if to the Trustee, addressed to it at:
The Bank of New York
x/x Xxx Xxxx xx Xxx Xxxx
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Structured Finance Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to the Servicer;
SECTION 1.6 NOTICE TO HOLDERS OF NOTES.
Where this Indenture provides for notice to the Holders of Notes from the
Trustee, the Trustee, subject to reimbursement by the Issuer, shall (i) in the
case of a Global Note, mail such notice by overnight mail to the Depositary and
(ii) in the case of Notes other than the Global Notes, mail such notice by
first class mail, postage prepaid (except with respect to any redemption
notice, which shall be sent by overnight mail) to the Holders thereof at the
addresses appearing on the Register, with a copy of all such notices delivered
(by mail or otherwise) to the Issuer. Any such notice so sent shall be
conclusively presumed to have been received by such Holders.
In case by reason of the suspension of regular mail service or overnight
mail service, as the case may be, or by reason of any other cause it shall be
impracticable to give any notice in the manner required above, then any other
method of notification found satisfactory in the reasonable judgment of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
In any case where notice to the Holders of Notes is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Notes.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Notes shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
All requests, demands, authorizations, directions, notices, consents,
waivers and other communications required or permitted under this Indenture
shall be in writing in the English language. Notice to any Holder will be
deemed to have been given on the date of such publication or mailing.
SECTION 1.7 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by any party shall bind such
party and its successors and assigns, whether so expressed or not.
SECTION 1.8 SEPARABILITY CLAUSE.
In case any provision of this Indenture or of the Notes shall be invalid,
illegal or unenforceable, then, to the extent permitted by law, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.9 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall give to
any Person, other than the parties hereto, their successors hereunder, and the
Holders of Notes, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
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SECTION 1.10 GOVERNING LAW.
(a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) Any action or proceeding against any of the parties hereto relating in
any way to this Indenture or any Note or the Collateral may be brought and
enforced in any state or federal court located in the Borough of Manhattan, The
City of New York, and the Issuer irrevocably submits to the jurisdiction of
each such court in respect of any such action or proceeding. The Issuer hereby
waives any right to remove any such action or proceeding by reason of improper
venue. As long as any of the Notes remain Outstanding, the Issuer will at all
times have an authorized agent in New York City upon whom process may be served
in any legal action or proceeding relating in any way to this Indenture or any
Note. Service of process upon such agent and written notice of such notice
mailed or delivered to the Issuer at its address set forth in Section 1.5
shall, to the fullest extent permitted by law, be deemed in every respect
effective service upon the Issuer in any such legal action or proceeding. The
Issuer's authorized agent for service of process shall be The Corporation Trust
Company, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, or such other Person as the
Issuer shall identify in a notice to the Trustee and the Servicer in accordance
with Section 1.5.
SECTION 1.11 EXECUTION IN COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 1.12 SECURITY AGREEMENT.
This Indenture shall constitute a security agreement under the Uniform
Commercial Code as in effect in the states where the Payment Account, the
Collection Account, the Holdover Account and any other similar account
established by the Trustee, or the Servicer or the Special Servicer in
furtherance of such entity's responsibilities under this Indenture or any other
Security Document are located (with respect to the liens and security interests
granted in Section 3.1(c)). Upon the occurrence of any Event of Default, and in
addition to any other rights available under this Indenture, the Security
Documents or any other instruments included in the Indenture Collateral or the
Underlying Collateral or otherwise available at law or in equity, the Trustee
shall have all rights and remedies of a secured party under the Uniform
Commercial Code to enforce the assignments and security interests contained
herein and, in addition, shall have the right, subject to compliance with any
mandatory requirements of applicable law, to sell at public or private sale or
apply, as appropriate, all monies or other property then on deposit in the
Payment Account, the Collection Account, the Holdover Account, the Redemption
Account, the REO Property Account and any other similar account established by
the Trustee, the Servicer or the Special Servicer in furtherance of its rights
or responsibilities under this Indenture or any other Security Document and any
other rights and other interests assigned or pledged hereby in accordance with
the terms of this Indenture. All amounts received hereunder and under the other
Security Documents and any other instruments included in the Indenture
Collateral or the Underlying Collateral shall be applied in accordance with the
priorities established in Section 5.6.
SECTION 1.13 THIRD-PARTY BENEFICIARY.
This Indenture shall inure to the benefit of and be binding upon each of the
parties hereto and its successors. Except as otherwise provided in this Article
I, no other Person shall have any right or obligation hereunder.
SECTION 1.14 NO LIABILITY OF EXCULPATED PERSONS.
(a) Anything contained in this Indenture or the other Security Documents to
the contrary notwithstanding, the recourse for the satisfaction of the
indebtedness due under the Notes and for the payment and performance of all of
the obligations and liabilities of the Issuer under the Indenture or the other
Security Documents shall be
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limited solely to the Issuer's property and assets, including its interest in
the Collateral, the Payment Account, the Holdover Account, the Collection
Account, the Redemption Account, the REO Property Account, the Mortgage Deposit
Account, and the Mezzanine Deposit Account and none of GGP, GGC, or any of
their successors or assigns, any partner (general or limited, or a subpartner
at any level), member, tenant in common, officer, director, trustee,
beneficiary, shareholder, controlling Person, employee, agent, contractholder
or policyholder of or with GGP, GGC, or the Issuer, or any Affiliate of any of
the foregoing (collectively, "Exculpated Persons"), shall be liable in any
respect for (i) the payment of the principal of or interest on the Notes, (ii)
the payment of any other amount due under the Notes, this Indenture or the
other Indenture Security Documents, or (iii) damages for the breach of, or any
costs or expenses associated with the performance of or failure to perform, any
of the covenants, obligations, representations, warranties or indemnifications
contained herein or in the Notes or the other Indenture Security Documents. The
Holders, by their acceptance of the Notes, and the Trustee shall agree that, in
the event the Trustee pursues any remedies available to it hereunder or under
the Notes or the other Security Documents, the Trustee, the Servicer, the
Special Servicer and the Holders shall not have recourse to the Exculpated
Persons for any deficiency, loss or claim for damages resulting therefrom, and
none of the property or assets of any of the Exculpated Persons shall be
subject to levy, execution, garnishment, attachment, foreclosure or other
enforcement procedure for the satisfaction of the remedies of the Trustee, the
Servicer and the Special Servicer and the Holders hereunder. Nothing contained
herein shall (i) constitute a waiver of any indebtedness evidenced by the Notes
or secured by the Mortgage, the Mezzanine Pledge Agreement or the other
Security Documents, or (ii) be taken to prevent recourse to or the enforcement
of remedies against any of the Collateral, in respect of any and all
liabilities, obligations and undertakings contained in the Security Documents.
Each document that is executed by any Exculpated Persons pursuant to or in
connection with this Indenture and/or any other Security Documents shall either
expressly incorporate, or shall be deemed to incorporate, the provisions
contained in this Section 1.14.
(b) In furtherance of the foregoing, it is expressly understood and agreed
that nothing herein nor any act of the Issuer nor any document or instrument
executed by the Issuer in connection herewith shall create or impose on any
Exculpated Persons any personal liability, other than to the extent expressly
provided with respect to the Underlying Borrowers in the Environmental
Indemnity, and this Indenture is executed by the Issuer with the express
understanding and agreement that nothing contained herein, in the Notes or
under any of the other Indenture Security Documents (including the Notes) shall
be construed as creating any liability on the part of any Exculpated Persons
personally, other than to the extent expressly provided with respect to the
Underlying Borrowers in the Environmental Indemnity, to pay the principal
obligation or any interest that may accrue thereon or any indebtedness that may
accrue hereunder or under any of the other Indenture Security Documents or to
perform any covenant, either express or implied, herein contained, and that
every Person now or hereafter claiming any right or security hereunder shall
look solely to the Collateral, the Payment Account, the Holdover Account, the
Collection Account, the Redemption Account, the REO Property Account, the
Mortgage Deposit Account and the Mezzanine Deposit Account, for the payment
thereof and the enforcement of any lien hereby created or the enforcement of
any covenant, condition or agreement contained herein or under any of the other
Indenture Security Documents.
(c) The provisions of Section 1.14(a) and (b) hereof shall not (i)
constitute a waiver, release or impairment of any obligation of the Issuer
(without recourse to its partners, members or other equity investors) evidenced
or secured by the Notes, this Indenture or any other Indenture Security
Document to the extent that it would impair the Trustee's (or the Servicer's or
Special Servicer's on the Trustee's behalf) right or ability to declare an
Event of Default or accelerate the maturity of the Notes, (ii) constitute a
waiver of the Trustee's right under Section 1111(b) of the United States
Bankruptcy Code to claim against the Issuer (without recourse to its partners,
members or other equity investors, other than to the extent expressly provided
with respect to the Underlying Borrowers in the Environmental Indemnity) the
full amount of the indebtedness evidenced by the Notes or incurred pursuant to
any of the other Indenture Security Documents or (iii) impair the right of the
Trustee to obtain a deficiency judgment (without recourse to any partner,
member or other equity investor in the Issuer, other than to the extent
expressly provided with respect to the Underlying Borrowers in the Environmental
20
Indemnity) in any action or proceeding in order to preserve its rights and
remedies against Collateral as to which a lien is granted hereunder, including,
without limitation, foreclosure, nonjudicial foreclosure or the exercise of a
power of sale, under the Collateral.
SECTION 1.15 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Issuer to the Trustee to take any
action under any provision of this Indenture, the Issuer shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act or this Indenture. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer of
the Issuer, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.16 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
ARTICLE II
FORMS OF THE NOTES
SECTION 2.1 FORMS GENERALLY.
(a) The Notes and the Trustee's certificate of authentication shall be in
substantially the form set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed
thereon as may be required to comply with any applicable law or with any
applicable rules made pursuant thereto or with the applicable rules of any
securities exchange on which any of the Notes may be listed or any depositary
or any governmental agency, to conform with market practice or as may,
consistent herewith, be determined by the officers executing any Notes, as
evidenced by their execution of such Notes.
(b) The definitive Notes shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers executing such Notes, as evidenced by their execution of such
Notes.
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SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication for the Notes shall be in
substantially the following form:
This Note is one of the Notes referred to in the above-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By: -------------------------
Authorized Officer
or
THE BANK OF NEW YORK
as Trustee
By: -------------------------
as Authenticating Agent
By: -------------------------
Authorized Officer
SECTION 2.3 FORM OF THE NOTES.
The Notes are issuable initially in the form of a single Global Note in
definitive, fully registered form without coupons (a "GLOBAL NOTE") in
substantially the form of Exhibit A hereto, with the legend provided for in
Section 2.4. The Notes are not issuable in bearer form.
SECTION 2.4 LEGEND.
So long as DTC is acting as Depositary, Global Notes shall bear a legend
substantially in the following form:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED
TO HEREIN. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A
NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE.
BENEFICIAL INTERESTS IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE WITH THE INDENTURE.
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THIS NOTE WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A
GLOBAL NOTE UNLESS THE HOLDER OF THIS NOTE, SUBSEQUENT TO SUCH EXCHANGE,
WILL HOLD A MINIMUM AGGREGATE BENEFICIAL INTEREST IN SUCH GLOBAL NOTE OF AT
LEAST ONE HUNDRED DOLLARS ($100).
SECTION 2.5 GLOBAL NOTES.
(a) (i) Any Note issued in exchange for a Global Note or any portion thereof
shall be a Global Note, PROVIDED, HOWEVER, that any such Note so issued that is
registered in the name of a Person other than the Depositary or a nominee
thereof shall not be a Global Note. Notwithstanding any other provision of this
Indenture, a Global Note shall not be exchanged in whole or in part for a Note
registered in the name of any Person other than the Depositary or one or more
nominees thereof, unless (1) the Depositary (A) notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Global Note or (B)
ceases to be a clearing agency registered under the Exchange Act, and in either
case the Issuer fails to appoint a successor depositary (as described below) or
(2) there shall have occurred and be continuing an Event of Default with
respect to the Notes. Any Global Note exchanged pursuant to clause (1) above
shall be so exchanged from time to time in whole and not in part and any Global
Note exchanged pursuant to clause (2) above may be exchanged from time to time
in whole or in part as directed by the Depositary.
(ii) The Issuer hereby designates DTC as the Depositary with respect to the
Global Notes. If at any time DTC notifies the Issuer that it is unwilling or
unable to continue as Depositary for the Global Notes or if at any time DTC has
ceased to be a clearing agency registered under the Exchange Act if so required
by applicable law or regulation, the Issuer shall be entitled to appoint a
successor depositary with respect to each Global Note and provide notice to the
Trustee of such appointment. If (x) a successor depositary for such Global Note
is not appointed by the Issuer within 90 days after the Issuer receives such
notice or becomes aware of such unwillingness, inability or ineligibility, (y)
an Event of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the Notes represented by such
Global Note advise DTC, with a copy to the Trustee and the Issuer, to cease
acting as depositary for such Global Note or (z) the Issuer, in its sole
discretion, determines at any time that all (but not less than all) Outstanding
Notes issued or issuable in the form of a Global Note shall no longer be
represented by such Global Note and advises the Trustee and DTC of such
determination, then the Issuer shall execute, and the Trustee shall
authenticate and deliver, definitive Notes of like class, rank, tenor and terms
in definitive form in an aggregate principal amount equal to the principal
amount of such Global Notes. On or after the earliest date on which such
interests may be so exchanged as described above, each Global Note shall be
surrendered for exchange by DTC to the Trustee; PROVIDED, HOWEVER, that such
exchange is subject to the terms of Section 3.8 herein.
(b) Notes issued in exchange for a Global Note or any portion thereof shall
be issued in definitive, fully registered form, shall have an aggregate
principal amount equal to that of such Global Note or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the applicable
legends provided for herein. Any Global Note to be exchanged in whole shall be
surrendered by the Depositary to the Trustee located at the Corporate Trust
Office to be so exchanged. With regard to any Global Note to be exchanged in
part, either such Global Note shall be so surrendered or exchanged or, if the
Trustee is acting as custodian for the Depositary or its nominee with respect
to such Global Note, the principal amount thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the Note
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(c) Subject to the provisions in the legend required by Section 2.4 above, a
registered Holder may grant proxies and otherwise authorize any Person,
including any Agent Member and any Person who may hold an interest in an Agent
Member, to take any action that such Holder is entitled to take under this
Indenture.
23
(d) In the event of the occurrence of any of the events specified in
paragraph (a) of this Section 2.5, the Issuer will promptly make available to
the Trustee a reasonable supply of certificated Notes in definitive, fully
registered form.
(e) Neither members of, or participants in, the Depositary ("AGENT MEMBERS"
and each an "AGENT MEMBER") nor any other Person on whose behalf Agent Members
may act shall have any rights under this Indenture with respect to any Global
Note held on its or their behalf by the Depositary or under any such Global
Note, and the Depositary may be treated by the Issuer, the Trustee and any
agent of the Issuer or the Trustee (including, without limitation, the
Servicer) as the absolute owner of such Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Issuer, the Trustee or any agent of the Issuer or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
ARTICLE III
THE NOTES
SECTION 3.1 EQUAL AND RATABLE NOTES; AMOUNT; AUTHORIZATION.
(a) Each Note shall rank PARI PASSU with each other Note. The Notes shall be
equally and ratably secured by the Indenture Collateral, PROVIDED that payment
of principal and interest on the Notes shall be subject to the priorities of
distributions set forth in Section 3.5(f) and Section 5.6, as applicable. The
aggregate principal amount of the Notes that may be authenticated, delivered
and Outstanding under this Indenture and which may be Outstanding at any time
is limited to $20,000,000 (except for Notes authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other Notes
pursuant to the provisions of this Indenture or the Notes). All Notes shall be
substantially identical except as to denominations and tenor and except as
expressly permitted in this Indenture.
(b) The Notes shall be known and designated as the "Secured Notes, Series
2002-SSCC due May 31, 2010." The Scheduled Maturity Date for the Notes shall be
May 31, 2010.
(c) The Issuer hereby grants, and this Indenture shall evidence, a
continuing lien and security interest in the Indenture Collateral, including
the Payment Account, the Collection Account, the Holdover Account, the
Redemption Account, the REO Property Account, and any other similar account
established by the Trustee, the Servicer or the Special Servicer in furtherance
of its rights or responsibilities under this Indenture or any other Security
Document to secure the full payment of the principal of and interest, and all
other amounts payable, on all the Notes, which shall in all respects be equally
and ratably secured hereby without preference, priority or distinction on
account of the actual time or times of the authentication and delivery of the
Notes provided that payment of principal and interest on the Notes shall be
subject to the priorities of distributions set forth in Section 3.5 and Section
5.6, as applicable. The foregoing grant shall not be in derogation or
limitation of any lien or security interest granted under any Security Document
to the Trustee to secure amounts payable on the Notes.
(d) Notes may be transferred at the option of the Holder thereof to the
Depositary for credit to the account of any Agent Member in accordance with
this Indenture. Thereafter, the Depositary or its nominee shall be the Holder
of the portion of the Global Note evidencing any Notes so transferred and the
beneficial ownership thereof.
SECTION 3.2 DENOMINATIONS.
The Notes shall be issuable in fully registered form, without coupons, in
denominations of $100 and integral multiples of $100.
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SECTION 3.3 CONDITIONS PRECEDENT TO ISSUANCE OF NOTES.
On the date hereof, Notes may be executed by the Issuer and authenticated
and delivered by the Trustee to the specified parties upon the Issuer Request
(directing the Trustee to authenticate the Notes and designating to whom the
Trustee shall deliver the authenticated Notes) only if the Issuer shall have
delivered the following to the Trustee (as evidenced by the Officer's
Certificate referred to in (d) below and provided that the Trustee shall have
no obligation to review the following and shall make no representation as to
their sufficiency or effectiveness):
(a) A copy of the certificate of formation of each of the Issuer and each
Underlying Borrower, and any amendments thereto, certified, as applicable,
by the appropriate government official of its jurisdiction of incorporation
or organization;
(b) A certificate of the Secretary or Assistant Secretary of the Issuer,
stating that:
(i) the copy of the applicable charter or organizational document of
each of the Issuer and each Underlying Borrower provided under clause
(a) above is true and complete;
(ii) the attached copy of the resolutions of the governing body of
FUR (A) authorizing the issuance of the Mortgage Note and the execution
and delivery of the Mortgage and the other Mortgage Security Documents
and (B) authorizing the officers (or classes of officers) identified
therein to execute documents on such Underlying Borrower's behalf is
true and complete and that such resolutions remain in full force and
effect and have not been modified or amended;
(iii) the attached copy of the resolutions of the governing body of
Park Plaza 1 (A) authorizing the issuance of the Mezzanine Note and the
execution and delivery of the Mezzanine Loan Agreement and the other
Mezzanine Security Documents and (B) authorizing the officers (or
classes of officers) identified therein to execute documents on such
Underlying Borrower's behalf is true and complete and that such
resolutions remain in full force and effect and have not been modified
or amended; and
(iv) the Persons who, as officers of the Issuer or any Underlying
Borrower, executed this Indenture, the Notes, the Mortgage Note, the
Mezzanine Note, the Mortgage, the Mezzanine Loan Agreement and each
other Security Document to which the Issuer or such Underlying Borrower
is a party, and any certificates or other papers delivered to the
Trustee in connection with the execution and delivery of this Indenture
and each other Security Document and the issuance of the Notes, the
Mortgage Note and the Mezzanine Note, were validly elected to, and the
incumbents of, the offices they purported to hold at the time of such
execution, delivery and issuance, and that their signatures set forth on
such certificate are genuine;
(c) Executed counterparts of this Indenture, the agreement between the
Trustee and the Fiscal Agent (if any) referred to in the second to last
paragraph of Section 3.6(b), the Notes, the Mortgage Security Documents, the
Mezzanine Security Documents and each of the other Security Documents;
(d) An Officer's Certificate from the Issuer, dated as of the Closing
Date, stating that, to the best knowledge of the signer(s) thereof, all of
the conditions to the closing of the merger under the Merger Agreement have
been satisfied;
(e) Executed UCC-l financing statements with respect to the Indenture
Collateral naming the Issuer as debtor and the Trustee as secured party
thereunder (to be filed by or on behalf of the Issuer in the appropriate
filing offices in the State of Delaware); and
(f) Executed UCC-1 financing statements naming the Underlying Borrowers
as debtor, the Issuer as secured party thereunder and the Trustee as
assignee (to be filed by or on behalf of the Underlying Borrowers in the
appropriate filing offices in the States of Ohio, Delaware and Indiana);
Copies of the documents described above shall also be delivered to the
Servicer.
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SECTION 3.4 EXECUTION, AUTHENTICATION AND DELIVERY OF THE NOTES.
Each Note shall be executed manually or in facsimile on behalf of the Issuer
by any Person so authorized and listed on Exhibit C hereto to sign documents on
behalf of the Issuer in connection with the performance of the Issuer's
obligations under this Indenture and the other Security Documents (each, an
"AUTHORIZED PERSON"), notwithstanding that such Persons, or any of them, shall
have ceased, for any reason, to be so authorized prior to the authentication
and delivery of such Note or was not so authorized at the date of any such
Note. The Issuer shall have the right to add to or delete from the names listed
on Exhibit C upon written notice to the Trustee and the Servicer signed by an
Authorized Person and, in the case of additions to the list of Authorized
Persons, accompanied by a specimen signature of each newly designated
Authorized Person. The Notes may also have such additional provisions,
omissions, variations or substitutions as are not inconsistent with the
provisions of this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any applicable law or with any applicable rules made
pursuant thereto or with the applicable rules of any securities exchange or
governmental agency or as may, consistently herewith, be determined by an
Authorized Person executing such Notes, as conclusively evidenced by their
execution of such Notes. All Notes shall be otherwise substantially identical
except as to denomination and as provided herein.
The Trustee is hereby authorized, upon receipt of Notes duly executed on
behalf of the Issuer for the purposes of the original issuance of such Notes
and receipt of the other documents set forth in Section 3.3, to authenticate
such Notes in an aggregate principal amount not in excess of $20,000,000 and to
deliver such Notes to the Issuer or any other Person designated by the Issuer
and, thereafter, to authenticate and deliver Notes in accordance with the
provisions hereinafter set forth.
The Trustee may, with the consent of the Issuer, appoint by an instrument or
instruments in writing one or more Authenticating Agents (which may include the
Trustee itself) for the authentication of Notes and, with such consent, vary or
terminate any such appointment upon written notice and approve any change in
the office through which any Authenticating Agent acts. The Issuer (by written
notice to the Trustee and the Authenticating Agent whose appointment is to be
terminated) may also terminate any such appointment at any time; PROVIDED,
HOWEVER, that if the Trustee is acting as the Authenticating Agent, it may be
terminated as Authenticating Agent only if it is also being terminated as
Trustee. The Trustee hereby agrees to solicit written acceptances from the
entities concerned (in form and substance satisfactory to the Issuer) of such
appointments; PROVIDED, HOWEVER, that the Trustee shall not be required to
solicit such written acceptances from any of its Affiliates who acts in the
capacity of Fiscal Agent. In its acceptance of such appointment, an
Authenticating Agent shall agree to act as an authenticating agent pursuant to
the terms and conditions of this Indenture. The Fiscal Agent shall also be an
Authenticating Agent.
No Note shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for in Section 2.2, executed
by the Trustee or an Authenticating Agent by manual signature, and such
certificate of authentication upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
SECTION 3.5 DEPOSIT ACCOUNT, COLLECTION ACCOUNT, PAYMENT ACCOUNT, HOLDOVER
ACCOUNT, REDEMPTION ACCOUNT.
(a) On or prior to the date hereof,
(i) the Servicer shall establish and maintain a single, segregated
account (the "COLLECTION ACCOUNT"), which is required to be an Eligible
Account, with a federally or state-chartered depository institution or trust
company in the name of the Servicer, as Servicer for the Trustee. The
Collection Account will be under the sole dominion and control of the
Servicer, as Servicer for the Trustee, and neither the Issuer nor any
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Underlying Borrower will have the right to withdraw funds from the
Collection Account. The Servicer shall give notice to the Trustee and the
Issuer of any change in the location of the Collection Account; and
(ii) the Trustee shall establish a segregated trust account (the "PAYMENT
ACCOUNT"), in the Trustee's name, which shall be an Eligible Account,
bearing a designation clearly indicating that such account and all funds
deposited therein (including all investments of such deposited funds and all
income or other gain from such investments) are held for the exclusive
benefit of the Holders. The Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making withdrawals from the Payment Account in accordance with this
Indenture. Funds in the Payment Account shall not be commingled with any
other monies. Subject to the interests of the Trustee pursuant to this
Section 3.5, all monies deposited from time to time in the Payment Account
and all investments made with such monies, including all income or other
gains from such investments, shall be held by the Trustee in the Payment
Account for the benefit of the Holders as provided herein and, to the extent
specified in Section 3.5(d) and Section 6.15, the Issuer.
(b) The Issuer shall, at or before 11:00 a.m. (New York time) on the second
Business Day before each Payment Date or Maturity Date, transfer the balance of
funds in the Mortgage Debt Service Sub Account and the Mezzanine Debt Service
Sub Account to the Servicer for credit to the Collection Account. The Issuer
shall also remit, at or before 11:00 a.m. (New York time) on the second
Business Day before such Payment Date or Maturity Date such additional funds as
are required to ensure that the balance in the Collection Account is sufficient
to pay the amount of any interest and principal due in respect of the Notes,
together with all other amounts due in respect of such date pursuant to this
Indenture, including Trustee Fees, Servicing Fees, Special Servicing Fees,
Work-out Fees and Liquidation Fees. The Issuer shall also transfer from the
Mortgage Debt Service Sub Account or the Mezzanine Debt Service Sub Account, or
both, or otherwise remit to the Servicer or Special Servicer, as applicable, at
or before 11:00 a.m. (New York time) on the first Business Day of each calendar
month (other than a month containing a Payment Date or Maturity Date such
additional amounts as are required to pay any Servicing Fee or Special
Servicing Fee due on such date.
(c) The Servicer shall remit to the Trustee for deposit in the Payment
Account all funds then available in the Collection Account at or before 3:00
p.m. (New York time) on the Business Day immediately preceding each Payment
Date or Maturity Date.
(d) All interest earned on funds on deposit in the Mortgage Deposit Account
or the Mezzanine Deposit Account, or any other account or sub-account required
to be maintained under this Indenture, the Mortgage, the Mezzanine Loan
Agreement, the Mezzanine Cash Management Agreement or the Cash Management
Agreement, other than the Collection Account, the Payment Account, the
Redemption Account, and the REO Property Account, shall accrue for the benefit
of the Issuer. Interest on funds on deposit in the Collection Account, the
Payment Account and the Redemption Account shall be paid as follows: (i) to the
Servicer, one calendar day's interest on all funds deposited in the Collection
Account, to the extent such interest is actually earned; (ii) to the Trustee,
one Business Day's interest on all funds deposited in the Payment Account and
the Redemption Account, to the extent such interest is actually earned; and
(iii) all other interest earned on funds on deposit in the Collection Account
and the Payment Account shall accrue for the benefit of the Issuer. Any
interest earned on funds on deposit in the REO Property Account shall accrue
for the benefit of the Special Servicer.
(e) So long as no Event of Default shall have occurred and be continuing,
all of the funds on deposit in the Payment Account may be invested and
reinvested by the Trustee in one or more Eligible Investments only in the event
such funds are reasonably expected by the Trustee to be on deposit for a period
in excess of the period from and including the Business Day prior to the
Payment Date or Maturity Date, as applicable, to but excluding the related
Payment Date or Maturity Date, as applicable, subject to the following
requirements; PROVIDED, HOWEVER, that in no event shall amounts in the Payment
Account be invested on the Business Day preceding any Payment Date or Maturity
Date:
(i) such Eligible Investments shall not mature later than the Business
Day prior to the date such amounts are required to be applied under this
Indenture;
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(ii) securities purchased with the monies in the Payment Account shall be
deemed a part of the Payment Account;
(iii) each such Eligible Investment shall be made in the name of the
Trustee (in its capacity as such) or in the name of a nominee of the Trustee
under its complete and exclusive dominion and control (or, if applicable law
provides for perfection of pledges of an instrument not evidenced by a
certificate or other instrument through registration of such pledge on books
maintained by or on behalf of the issuer of such investment, such pledge may
be so registered);
(iv) the Trustee shall have the sole control over such investment, the
income thereon and the proceeds thereof;
(v) other than the investments described in clause (iii) above, any
certificate or other instrument evidencing such investment, if any, shall be
delivered directly to the Trustee or its agent; and
(vi) the proceeds of each investment (which shall be made as provided in
Section 6.14) shall be remitted by the purchaser thereof (if not the
Trustee) directly to the Trustee.
All net income or other gain from investments of monies deposited in the
Payment Account shall be credited to the Payment Account and any net loss
resulting from such investments shall be charged to the Payment Account. The
Trustee shall not be liable to the Holder of any Note, the Issuer or any other
Person for any loss resulting from any such investment or sale in accordance
with this Indenture, whether by depreciation in value or otherwise, unless such
loss results from the Trustee's negligence or willful misconduct.
(f) Except as otherwise provided in Section 5.6 hereof, on each Payment Date
or Maturity Date, the Trustee shall apply all amounts on deposit in the Payment
Account to pay, pursuant to Section 3.11, the following amounts in the
following order of priority:
(i) first, any Trustee Fee and, to the extent not already paid from the
Collection Account, any Servicing Fees and Special Servicing Fees, shall be
paid, as well as any other amounts due and payable to the Trustee pursuant
to Section 6.5, the Fiscal Agent (if any), the Servicer or the Special
Servicer; and, second, any unreimbursed Advance that has been determined to
be a Nonrecoverable Advance made by the Servicer or the Special Servicer
(and interest thereon at the Advance Interest Rate) shall be repaid;
(ii) any additional interest payable on the Notes on account of a late
payment charge on an Underlying Loan or any Exit Fee paid on the Mezzanine
Loan shall be paid to the Holders pro rata until paid in full;
(iii) any interest then due and payable on the Notes, including any
interest at the Default Rate, but excluding any amounts included within
clause (ii) above, shall be paid to the Holders pro rata until paid in full;
(iv) any principal then due and payable on the Notes shall be paid to the
Holders pro rata until paid in full; and
(v) any Advances that were not repaid pursuant to clause (i) above, and
any accrued but unpaid interest thereon at the Advance Interest Rate, shall
be repaid, first to the Servicer, and second to the Special Servicer.
(g) Funds in the Payment Account for payments of amounts due and payable and
not claimed in accordance with this Indenture on any Outstanding Note shall be
deposited by the Trustee in a segregated trust account (the "HOLDOVER ACCOUNT")
in the Trustee's name with the Trustee and shall be held for the account of the
Holder or Holders of such Notes pursuant to Section 6.15. Upon the written
request of the Issuer, the Trustee shall invest such funds pursuant to Section
6.14, but the Trustee shall not otherwise be under any obligation to do so. Any
investment income earned on amounts held in the Holdover Account shall be
credited to the Holdover Account and applied pursuant to Section 6.15. The
Trustee shall not be responsible for any net loss that results from such
investments.
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(h) Any funds remaining in the Payment Account after all amounts described
in Section 3.5(f) have been paid in full shall be deposited by the Trustee in a
segregated account (the "REDEMPTION ACCOUNT") in the Trustee's name with the
Trustee. The Issuer shall transfer to the Redemption Account at or before 11:00
a.m. (New York time) on the second Business Day before each Payment Date the
balance of funds in (x) the Mortgage Residual Sub Account and (y) if a
Dillard's Event or a Mezzanine Event of Default occurred during the related
Interest Period and is continuing on the second Business Day before such
Payment Date, the Mezzanine Residual Sub Account. In addition, in the event
that the Issuer receives a repayment of principal on the Underlying Loans prior
to the second Business Day before the Scheduled Maturity Date, the Issuer shall
remit the amount of such repayment to the Redemption Account no later than the
next Business Day following the receipt thereof. The Trustee shall invest funds
in the Redemption Account pursuant to Section 6.14 and any investment income
earned on such amounts shall be credited to the Redemption Account. The Trustee
shall not be responsible for any net loss that results from such investments.
SECTION 3.6 REGISTRATION; FISCAL AGENT.
(a) GENERAL. The Issuer shall cause to be kept at the Corporate Trust
Office a register (the "REGISTER"), within the meaning of Section 163(f) of the
Code and any regulations thereunder, for the registration of transfer of the
Notes. The Register shall be maintained by the Trustee, which is hereby
appointed as the "REGISTRAR" for the purpose of registering Notes and transfers
of Notes as provided herein. The name and address of the Holder of each Note,
records of any transfers of the Notes and the name and address of any
transferee of a Note shall be entered in the Register under such reasonable
regulations as the Trustee may prescribe. There shall be no more than one
Holder for each Note, including all beneficial interests therein. The Registrar
shall (i) at all reasonable times during office hours make the Register
available to the Issuer or any Person authorized by the Issuer in writing for
inspection and the making of copies thereof or extracts therefrom and (ii) mail
a copy of the Register to the Issuer or any other such Person promptly after
request therefor from the Issuer.
Upon surrender for registration of transfer of any Note at the Corporate
Trust Office, accompanied by a written instrument of transfer in the form
approved by the Issuer and the Trustee (it being understood that, until notice
to the contrary is given to Holders, the Issuer and the Trustee shall each be
deemed to have approved the form of instrument of transfer, if any, printed on
the Notes), executed by the registered owner, in Person or by such Holder's
attorney thereunto duly authorized in writing, such Note shall be transferred
upon the Register, and the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more newly registered Notes of any authorized denominations
and of a like aggregate principal amount. Transfers and exchanges of Notes
shall be subject to the restrictions set forth in this Section 3.6 and Section
3.8 and in the text of the Notes and such reasonable regulations as may be
prescribed by the Issuer or Registrar. Successive registrations of transfers as
aforesaid may be made from time to time as desired, and each such registration
shall be noted on the Register.
Any Note may be exchanged for two or more Notes of any authorized
denominations and of a like aggregate principal amount in accordance with the
provisions of Section 3.2 hereof if the Note to be so exchanged is surrendered
for cancellation at the Corporate Trust Office accompanied by the written
request of the Holder thereof specifying the denominations of the new Notes to
be issued in exchange therefore. New Notes, executed by the Issuer and payable
to such Holder in the denominations so requested (but in denominations not less
than the principal amount of $100 and in integral multiples thereof), and in an
aggregate principal amount equal to the principal amount of the surrendered
Notes, shall be authenticated and delivered by the Trustee to such Holder in
exchange for the surrendered Note.
(b) The Trustee may, at its discretion, appoint a Fiscal Agent (a "FISCAL
AGENT") and the Trustee, Fiscal Agent, Registrar and Authenticating Agent may
be the same Person. The Trustee shall promptly notify the Issuer of the name
and address of any Fiscal Agent appointed by it, and will notify the Issuer of
the resignation or termination of any Fiscal Agent. Subject to the provisions
of this Section 3.6 and the third paragraph of Section 3.4, the Issuer may vary
or terminate the appointment of any Fiscal Agent at any time and from time to
29
time upon giving notice to such Fiscal Agent and to the Trustee. Any Fiscal
Agent appointed hereunder shall be entitled to the same protections and
exculpations as are available to the Trustee under Article VI hereof.
In respect of the Notes, the Trustee (on behalf of the Issuer) shall cause
notice of any resignation, termination or appointment of any Fiscal Agent or of
the Trustee to be given to the Holders as provided in Section 1.6 hereof.
The Trustee shall enter into an appropriate agency agreement with any Fiscal
Agent not a party to this Indenture and shall provide a copy of any such
agreement to the Issuer. The agreement shall implement the provisions of this
Indenture that relate to such Fiscal Agent.
The Issuer initially appoints the Trustee as Registrar, Fiscal Agent and
Authenticating Agent. If the Trustee resigns or is removed as Trustee,
hereunder, it shall resign from each of the foregoing capacities. No such
resignation or removal shall preclude the Issuer from reappointing the retiring
Trustee to any such capacity.
SECTION 3.7 HOLDER LISTS.
(a) The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuer or any other obligor
upon the Notes shall furnish to the Trustee in writing at least four Business
Days before each Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably request of the names and addresses of the Holders.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Notes, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every Holder of Notes, by receiving and holding the same, agrees with
the Issuer and the Trustee that neither the Issuer nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure
of information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 3.8 TRANSFER AND EXCHANGE.
(a) GENERAL. At the option of each Holder but subject to the provisions of
this Section 3.8, Notes may be exchanged for other Notes of any authorized
denomination or denominations and of the same aggregate principal amount, upon
surrender of the Notes to be exchanged at any office or agency of the Trustee
appointed in or pursuant to Section 3.6 for such purpose. Subject to the terms
of this Section 3.8, upon surrender for registration of transfer of any Note at
any such office or agency of the Trustee, the Issuer shall prepare and the
Issuer shall execute, and the Trustee or an Authenticating Agent shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination or
denominations and of the same aggregate principal amount. The Trustee will,
throughout the term of this Indenture, retain in its permanent records executed
originals of all retired Notes delivered to it in connection with any exchanges
or replacements hereunder.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Issuer or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar (it being understood that, until
notice to the contrary is given to
30
Holders of Notes, the Issuer and the Registrar shall each be deemed to have
approved the form of instrument of transfer, if any, printed on any definitive
Note), duly executed by the Holder or such Holder's attorney duly authorized in
writing.
No service charge shall be made for any registration, registration of
transfer or exchange of Notes, but the Issuer and the Trustee shall have the
right to require payment from the Holder requesting any such registration of
transfer or exchange of an amount in United States Dollars sufficient to pay or
discharge any stamp duty, tax or other governmental charge or insurance charge
that may be imposed in connection with such registration of transfer or
exchange.
Subject to Section 11.7(d), neither the Issuer nor the Trustee shall be
required to register the transfer of, or exchange, any Note called for
redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part.
(b) REDEMPTION PERIOD. Neither the Issuer nor the Trustee shall issue
Notes, register the transfer of Notes or exchange Notes during a period
beginning at the opening of business fifteen (15) days before any selection of
Notes to be redeemed and ending on the relevant Redemption Date if the Global
Note for which exchange is requested may be among those selected for redemption.
(c) TRANSFER OF GLOBAL NOTES. Notwithstanding any other provision of this
Indenture or the Notes, a Global Note may not be transferred, in whole or in
part, to any Person other than the Depositary or a nominee thereof, and no such
transfer to any such other Person may be registered; PROVIDED, HOWEVER, that
this clause (c) shall not prohibit any transfer of a Note that is issued in
exchange for a Global Note but is not itself a Global Note. No transfer of a
Note to any Person shall be effective under this Indenture or the Notes unless
and until such Note has been registered in the name of such Person.
(d) Successive registrations and registrations of transfers and exchanges as
aforesaid may be made from time to time as desired, and each such registration
shall be noted on the Register. No service charge shall be made for any
registration of transfer or exchange of the Notes, but the Trustee may require
payment by the applicable Holder of a sum sufficient to cover any stamp duty,
tax or other governmental charge or insurance charge payable in connection
therewith and any other amounts required to be paid by the provisions of the
Notes.
(e) All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
SECTION 3.9 MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the Issuer shall
execute, and the Trustee shall authenticate and deliver in exchange therefor, a
new Note (a "NEW NOTE") of like tenor and principal amount and bearing a number
not contemporaneously outstanding. Each New Note issued pursuant to this
Section in exchange for, in substitution for, or in lieu of a Predecessor Note
shall be dated the date of, and be in the form of, such Predecessor Note.
If there shall be delivered to the Issuer and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Note and (ii) such
security or indemnity as may be required by each of them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Issuer or the Trustee that such Note has been acquired by a bona fide
purchaser, the Issuer shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
New Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding. In every case of mutilation or defacement, the
applicant shall surrender to the Trustee the Note so mutilated or defaced. Upon
the issuance of any substitute
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Note, the Issuer may require the payment by the applicant of a sum sufficient
to cover any stamp duty, tax or other governmental charge or insurance charge
that may be imposed or incurred in relation thereto and any other expenses
connected therewith.
Every New Note issued pursuant to this Section in lieu of any destroyed,
lost or stolen Note shall constitute an original additional contractual
obligation of the Issuer evidencing the same debt as the Predecessor Note,
whether or not the destroyed, lost or stolen Note shall be at any time
enforceable by anyone having rights in such New Note thereunder and hereunder,
and any such New Note shall be entitled to all the benefits of this Indenture
and of the other Security Documents to the same extent as such Predecessor Note.
All Notes shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes and
shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes or negotiable instruments without their surrender.
SECTION 3.10 INTEREST.
(a) Each Note shall bear interest from and including the Closing Date to but
excluding the date on which the principal balance of such Note is repaid in
full. Such interest shall accrue during each Interest Period and be payable by
the Issuer in arrears for such Interest Period on the related Payment Date and
upon the redemption (other than a Redemption pursuant to Section 11.7) or
maturity thereof or, during the continuance of an Event of Default, at the time
provided in Section 5.6. Interest on each Note shall cease to accrue from the
Maturity Date, except to the extent that funds are not available in the Payment
Account to repay such Note in full (taking into account the priority of
application of funds provided herein) on the Maturity Date.
(b) Subject to Section 3.11(d), the interest rate on the Notes shall be 11%
per annum (the "BASE INTEREST RATE"). Interest on the Notes shall be computed
based on the actual number of days elapsed during the relevant Interest Period
and a 360-day year.
(c) On each Payment Date, the Holders shall also be entitled to receive, as
additional interest, any amounts received by the Issuer during the immediately
preceding Interest Period on account of the Exit Fee or late payment charges
under the Mortgage Security Documents or Mezzanine Security Documents. On the
Maturity Date not falling on a Payment Date, the Holders shall be entitled to
receive, as additional interest, any amounts received by the Issuer since the
end of the most recently completed Interest Period on account of the Exit Fee
or late payment charges under the Mortgage Security Documents or Mezzanine
Security Documents.
SECTION 3.11 PAYMENT OF PRINCIPAL AND INTEREST.
(a) The Issuer hereby authorizes and directs the Trustee to make or cause to
be made payment, from funds available in the Payment Account and any other
funds made available to the Trustee for such purpose, of the principal of and
any interest on the Notes as set forth in this Indenture.
(b) Any interest payable on a Payment Date shall be paid to the Person who
was the Holder thereof at the close of business on the Regular Record Date for
such Payment Date; PROVIDED, HOWEVER, that interest payable on the Maturity
Date of the Notes shall be payable to the Person to whom principal shall be
payable. Payments of principal of the Notes shall be payable on the Maturity
Date against surrender thereof at the Corporate Trust Office, at such other
office as the Issuer may have designated for this purpose pursuant to Section
10.2, or at the offices of the Fiscal Agent, if any.
(c) So long as the Notes are held through the Depositary's book-entry
system, payments of interest and principal on the Notes will be made, subject
to applicable laws and regulations, by wire transfer from the Trustee
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to the Depositary and will be forwarded to beneficial owners in accordance with
the payment procedures of the Depositary and the Agent Members thereof. If any
Note is not held through the Depositary, payments of principal with respect to
the Notes shall be made on the Maturity Date upon surrender of such Notes and
payments of any interest on such Notes shall be made on the applicable Payment
Date, in accordance with the foregoing and subject to applicable laws and
regulations, by check mailed on or before the due date for such payment to the
Person entitled thereto at such Person's address appearing on the Register, or,
in the case of payments of principal on the Maturity Date, to such other
address as the Holder shall provide in writing at the time of such surrender
(or, in the case of a Holder that provides the Trustee with wire instructions
and complies with any other reasonable requirements of the Trustee or Fiscal
Agent, if any, by wire transfer to such account as such Holder shall designate
by written instruction received by the Trustee or Fiscal Agent not less than
five (5) Business Days prior to the Regular Record Date).
(d) If any Note is not paid in full on or before the Maturity Date, the
unpaid principal and accrued interest and other amounts then due shall bear
interest at a rate per annum ("DEFAULT RATE") equal to the lesser of (i) four
percent (4.0%) in excess of the Base Interest Rate, or (ii) the maximum rate of
interest, if any, which may be charged or collected from Issuer under
applicable law.
In the event that any payment due on a Payment Date has not been provided
for in full (including by deposit in the Collection Account) by the Issuer on
or before the second Business Day prior to the date that such payment is due
(as such due date may be extended by the applicable grace period, if any),
interest at the Default Rate shall accrue on the unpaid amount and on the
principal balance of the Outstanding Notes until the earlier of the Maturity
Date and the date when full payment is received.
(e) At the Maturity Date of the Notes, the Trustee shall pay the principal
amount of each Note, and any unpaid interest thereon in immediately available
funds from funds in the Payment Account as promptly as possible after
presentation to the Trustee of such Note but shall initiate such payment no
later than 3:00 p.m. (New York time) on the day of such presentation, PROVIDED
that such presentation has been made no later than 11:00 a.m. (New York time).
If presentation is made after 11:00 a.m. (New York time) on any day, such
presentation shall be deemed to have been made not later than 11:00 a.m. (New
York time) on the immediately succeeding Business Day.
(f) In the event that a Note is not presented for payment by 11:00 a.m. (New
York time) on the Maturity Date, the Trustee shall transfer any principal
thereof and interest thereon to the Holdover Account. If the Holder of such
Note shall present such Note to the Trustee within two (2) years after the
Maturity Date, the Trustee shall pay such Note from funds in the Holdover
Account. In no event (other than following a default by the Issuer) shall such
Note earn interest after the Maturity Date. If such Note is not presented for
payment within two (2) years after the Maturity Date, the Trustee shall not
honor a demand for payment of such Note and the Trustee shall act in accordance
with Section 6.15 in respect of the unclaimed funds in the Holdover Account in
respect of such Note.
(g) If at 4:00 p.m. (New York time) of any day beginning on the Maturity
Date, any funds remaining in the Payment Account after (i) the payment of each
Note which is presented by 11:00 a.m. (New York time) for payment on such date
and (ii) the transfer of funds to the Holdover Account pursuant to Section
3.11(f) for each Note which is not presented for payment on such date (or is
presented after 11:00 a.m. (New York time) on such date), then such remaining
funds shall be transferred by the Trustee to the Issuer in accordance with
written wire transfer instructions given by the Issuer to the Trustee.
SECTION 3.12 INTEREST ON NEW NOTES.
Interest shall be deemed to have been paid on each New Note issued pursuant
to Section 3.9 hereof in exchange for, in substitution for, or in lieu of a
Predecessor Note to the date to which interest was paid on such Predecessor
Note.
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SECTION 3.13 CANCELLATION.
(a) All Notes surrendered for redemption (other than a Redemption with
respect to which the Issuer has made a designation pursuant to Section
11.7(d)), payment, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Issuer may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Issuer may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Trustee.
(b) No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section 3.13, except as expressly permitted by
this Indenture. All canceled Notes held by the Trustee shall be retained by the
Trustee in accordance with Section 3.8(a).
SECTION 3.14 FISCAL AGENT TO HOLD MONEY IN TRUST.
The Trustee shall require the Fiscal Agent, if any, to agree in writing that
the Fiscal Agent will hold in trust for the benefit of Holders and the Trustee
all money held by the Fiscal Agent for the payment of principal of or interest
on the Notes, and will notify the Trustee of any Event of Default by the Issuer
or any other obligor upon the Notes in making any such payment or in depositing
the funds to make such payment with the Fiscal Agent. While any such Event of
Default continues, the Trustee may require a Fiscal Agent to pay all money and
other property, if any, held by it to the Trustee.
ARTICLE IV
RELEASE OF COLLATERAL; SATISFACTION
AND DISCHARGE OF INDENTURE
SECTION 4.1 RELEASE.
Upon the release of any portion of the Underlying Collateral from the lien
of the Mortgage Security Documents or the Mezzanine Security Documents or of
any portion of the Indenture Collateral from the lien and security interest of
this Indenture or any other Security Document in accordance with the relevant
provisions hereof and thereof, the Trustee and the Servicer (if applicable)
shall execute such instruments as may be reasonably requested and presented by
the Issuer to effect and/or acknowledge such release which shall be at the
expense of the Issuer. The above-referenced instruments may include, at the
Issuer's election, (i) one or more amendments and/or restatements of the
Mortgage, Mezzanine Loan Agreement, the Assignment of Leases and/or any other
Security Document (in each case, without any representation or warranty by or
recourse to the Trustee or the Servicer) as may be appropriate to separate the
liens created thereby against the portion of the Underlying Collateral or the
Indenture Collateral to be released (as used herein, the "RELEASE PROPERTY")
from the liens encumbering the remaining portion of such collateral and,
thereafter, one or more assignments of the resulting Security Documents
relating to the Release Property to any designee or nominee of the Issuer and
the Underlying Borrowers and (ii) such uniform commercial code financing
statements, each in customary form and as may be mutually agreed upon by the
Issuer and the Trustee; PROVIDED, HOWEVER, that neither the Trustee nor the
Servicer shall be required to take any action or execute any instruments
pursuant to the foregoing unless such entity is satisfied, in its reasonable
judgment, that such action or instrument will not compromise in any way the
validity or enforceability of the lien of any Security Document with respect to
the remaining portion of the Collateral that is not Release Property. The
Trustee shall be entitled to receive and rely on an Opinion of Counsel to such
effect. Concurrently with any release transaction contemplated hereby or by the
Mortgage or Mezzanine Loan Agreement, the Trustee and Servicer shall return to
the Issuer the duplicate originals of any amendment or restatement of any
collateral agreement to which it is a party which relates solely to the Release
Property and in which the Trustee or Servicer, as applicable, will no longer
have any interest after such release.
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SECTION 4.2 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of transfer or exchange of Notes herein expressly provided for
and except in the case of clause (a)(ii) below, for the rights of the Holders
of Notes hereunder to receive payment of the principal of and interest on the
Notes, and any other rights of the Holders of Notes hereunder with respect to
amounts deposited with the Trustee), and the Trustee, at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture and release of the Collateral to the Issuer, when
(a) either
(i) all Notes theretofore authenticated and delivered (other than (x)
Notes that have been destroyed, lost or stolen and that have been
replaced or paid as provided in Section 3.9 and (y) Notes for which
payment money has theretofore been deposited in trust or segregated and
held in trust by the Trustee and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 6.15) have been
delivered to the Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Maturity Date within one
(1) year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer,
and, in the case of (1), (2) or (3) above, the Issuer has deposited or
caused to be deposited with or delivered to the Trustee as trust funds
in trust for these purposes Cash and Eligible Investments with
Collateral Value sufficient, without consideration of any reinvestment
of interest therefrom, to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for cancellation,
for principal and any interest to the date of such deposit (in the case
of Notes that have become due and payable) or to the Maturity Date or
Redemption Date, as the case may be; PROVIDED, HOWEVER, that, in the
case of (2) or (3) above with respect to Notes that are not yet due and
payable, the Issuer shall direct by Issuer Order how any Cash received
pursuant to this Section 4.2 will be invested and no satisfaction and
discharge will be permitted unless the Issuer delivers to the Trustee an
Opinion of Counsel addressed to the Issuer and the Trustee from counsel
experienced in federal income tax matters to the effect that, based on
such stipulations of the Issuer, any action taken pursuant to this
Section 4.2 will not be treated as an exchange pursuant to Section 1001
of the Code; PROVIDED, FURTHER, HOWEVER, that such Opinion of Counsel
shall not be required if both the satisfaction and discharge of this
Indenture, on the one hand, and the Maturity Date or Redemption Date of
the Notes, on the other hand, will occur in the same calendar year;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder and under the other Security Documents by the Issuer to the
Trustee, the Servicer (including any Termination Fee), the Special Servicer,
and each of the Holders; and
(c) the Issuer has delivered to the Trustee an Officer's Certificate
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the foregoing, but subject to the provisions of Section 1.12
and Section 1.14 hereof, the Issuer's obligations under this Indenture and in
respect of the Notes shall survive the discharge of this Indenture if and to
the extent that any payment of any amount paid by the Issuer to the Trustee or
any Holder is avoided as a preferential transfer or otherwise rescinded or
required to be restored under applicable law. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Issuer, the Servicer,
the Special Servicer or the Holders, as applicable, to satisfy indemnification
obligations under any provision of this Indenture, and the obligation of the
Trustee to the Holders of Notes under Section 6.15 hereof shall survive.
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SECTION 4.3 APPLICATION OF TRUST MONEY.
Subject to Section 4.5, the Trustee shall hold in trust Cash or Eligible
Investments deposited with it pursuant to Section 4.2 of this Indenture, as the
case may be, and shall apply the deposited Cash and the money from Eligible
Investments in accordance with this Indenture to the payment to Persons
entitled thereto, of principal of and interest on the Notes.
SECTION 4.4 REPAYMENT TO ISSUER.
Subject to the other provisions of this Indenture and any other applicable
Security Documents, the Trustee shall promptly pay to the Issuer upon written
request any excess money held by it in the Payment Account or any other account
established by the Trustee in furtherance of its rights or obligations under
this Indenture of any other Security Document (exclusive of money to be held by
the Trustee pursuant to Section 6.15) at any time and thereupon shall be
relieved from all liability with respect to such money.
SECTION 4.5 REINSTATEMENT.
If the Trustee is unable to apply any Cash or Eligible Investments in
accordance with Section 4.2 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Issuer's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.2 until such time as the Trustee has
received the final order or decree of such court or governmental authority
permitting it to apply all such Cash or Eligible Investments in accordance with
Section 4.2, as applicable; PROVIDED that, if the Issuer has made any payment
of principal of or interest on any Notes because of the reinstatement of its
obligations, the Issuer shall be subrogated to the rights of the Holders of
Notes to receive such payment from the Cash or Eligible Investment held by the
Trustee.
SECTION 4.6 TRUST INDENTURE ACT.
To the extent applicable, the Issuer shall comply with Trust Indenture Act
Section 314(d) relating to the release of property from the lien of this
Indenture.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to Notes, means the
occurrence of any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) a default in the regularly scheduled payment of interest required to
be paid to the Trustee (or the Servicer on behalf of the Trustee) for the
benefit of the Holders by the Issuer on the second Business Day immediately
preceding any Payment Date prior to the Maturity Date; or
(b) a default in the payment of the principal of or interest on any Note
at the Maturity Date or in the payment of the Redemption Price at a
Redemption Date; or
(c) a default in the performance of any material covenant, or breach of
any material representation or warranty, of the Issuer in this Indenture or
in any certificate delivered pursuant to this Indenture (other than any
default in the payment of interest or other amounts due to the Servicer or
the Trustee for the benefit of
36
the Holders, or in the performance of any other material covenant,
representation or warranty a default in whose performance or whose breach is
elsewhere in this Section 5.1 specifically dealt with), and continuance of
such default or breach for a period of thirty (30) days after there has been
given, by registered or certified mail, to the Issuer by the Trustee (or the
Servicer on the Trustee's behalf) a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"NOTICE OF DEFAULT" under this Indenture; provided that in the case of any
such failure that is susceptible of cure but that cannot with diligence be
cured within such thirty (30) day period, if the Issuer shall have promptly
commenced to cure the same within such thirty (30) day period (as shall be
evidenced by an Officer's Certificate of the Issuer delivered to the Trustee
and the Servicer) and shall thereafter prosecute the curing thereof with
diligence, the period within which such failure may be cured shall be
extended for such further period as shall be reasonably necessary for the
curing thereof, although such extended period shall not exceed 180 days; or
(d) the entry by a court having jurisdiction over the Issuer of (A) a
decree or order for relief in respect of the Issuer in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, rehabilitation or other similar law or (B) a decree or order
adjudging the Issuer a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, rehabilitation, arrangement, adjustment
or composition of or in respect of the Issuer under any applicable federal
or state bankruptcy, insolvency, reorganization, rehabilitation or other
similar law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs and such decree or order remains unstayed and in effect for a
period of 60 days; or
(e) the commencement by the Issuer of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Issuer to the entry of a decree
or order for relief in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state bankruptcy or similar law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Issuer or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of action by the Issuer in furtherance of any such action; or
(f) the occurrence and continuance, beyond any applicable grace period,
of an "Event of Default" under the Mortgage, the Mezzanine Loan Agreement or
any other Security Document.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default occurs and is continuing, then in every such case the
Special Servicer may, to the extent consistent with the Servicing Standards
and, at the direction of the Majority Holders, shall, by a notice in writing to
the Issuer and the Trustee, declare the sum of (i) the principal amount of all
Outstanding Notes and, to the extent permitted under the Underlying Loan
Documentation, the Underlying Loans and (ii) any other amounts, including but
not limited to, accrued interest payable to the Holders under the Notes, to the
extent such amounts are permitted by law to be paid, to be due and payable
immediately, and upon any such declaration such amounts shall become
immediately due and payable.
At any time after such declaration of acceleration of the Notes or the
Underlying Loans has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee or the Servicer as hereinafter
provided in this Article, and subject to the Servicer's and Special Servicer's
obligation to act in
37
accordance with the Servicing Standards, the Majority Holders by written notice
to the Issuer, the Trustee, the Servicer and the Special Servicer, may rescind
and annul such declaration and its consequences if:
(a) the Issuer has paid or caused to be deposited with the Trustee (or the
Servicer or Special Servicer on the Trustee's behalf) a sum sufficient to pay:
(i) all interest due and payable on all Outstanding Notes,
(ii) all other amounts due thereon at the rate or rates or in the
amount prescribed therefor in such Notes,
(iii) all sums Advanced (with interest thereon at the Advance
Interest Rate) or paid by the Trustee, the Fiscal Agent (if any), the
Special Servicer or the Servicer hereunder and the reasonable
compensation, expenses and disbursements of the Trustee, the Fiscal
Agent, Special Servicer and the Servicer and its agents and counsel, and
(iv) any other amounts then due and payable under the Indenture or
any Indenture Security Document (other than principal that became due
solely as a consequence of such acceleration); and
(b) all Events of Default, other than the non-payment of the principal of
the Outstanding Notes which has become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13 and all
"Events of Default" under the Mortgage and the Mezzanine Loan Agreement, other
than the non-payment of the principal of the Mortgage Loan or Mezzanine Loan,
as applicable, which has become due solely by a declaration of acceleration,
have been cured or waived as provided in Section 5.13. No such rescission shall
affect any subsequent default or impair any right consequent thereon.
If the Issuer fails to make a payment when due, and then delivers to the
Trustee funds sufficient to make all payments current, absent acceleration, and
the Servicer or the Special Servicer on behalf of the Holders agrees in writing
to accept such payment and to rescind the declaration of an Event of Default or
acceleration, or the Majority Holders, prior to an acceleration, agree to
rescind the declaration of an Event of Default, in either case, the Holders
shall also be deemed to waive the right to claim that the failure to make the
payment when due was an Event of Default and is continuing.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
SERVICER.
If the Issuer fails to pay all amounts due upon an acceleration under
Section 5.2 forthwith upon demand, the Special Servicer (on behalf of the
Trustee) may (subject to the rights of the Majority Holders set forth in
Section 5.12(a) and in accordance with the Servicing Standards) institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may take any action
or remedy available under the Uniform Commercial Code and, subject to the
provisions of this Agreement, may enforce the same against the Issuer and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the Collateral and pursuant to the Security Documents, wherever
situated, or may institute such non-judicial proceedings in lieu of judicial
proceedings as are then permitted by applicable law, and may take such actions
through a mortgage trustee if necessary or advisable under applicable law.
If an Event of Default with respect to the Notes occurs and is continuing,
subject to the provisions of this Agreement, the Special Servicer (subject to
the rights of the Majority Holders set forth in Section 5.12(a)) may in its
discretion (or, if any outstanding Advance is a Nonrecoverable Advance, shall)
proceed to protect and enforce its rights, the rights of the Trustee and the
rights of the Holders of Notes by such appropriate judicial proceedings as the
Special Servicer shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
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SECTION 5.4 SPECIAL SERVICER MAY FILE PROOFS OF CLAIM.
In the case of pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, rehabilitation, arrangement, adjustment,
composition or other judicial proceeding relative to the Issuer, or the
property of the Issuer or its creditors, the Special Servicer or the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Special Servicer shall have made any demand on the Issuer for the
payment of overdue principal or interest) shall be entitled and empowered, to
the extent not prohibited by applicable law, by intervention in such proceeding
or otherwise to,
(i) file and prove a claim for the whole amount of the principal of and
any interest on the Notes owing and unpaid and all other sums owing and
unpaid under the Notes, the Mortgage, the Mezzanine Loan Agreement, this
Indenture, or any other Security Document, if any, and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Special Servicer, the Servicer and the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Special Servicer, Servicer or the Trustee and their respective agents
and counsel), except as a result of its or their negligence or bad faith,
and of the Holders allowed in such judicial proceeding, and
(ii) collect and receive any monies, notes or other property payable or
deliverable on any such claims and to distribute the same in accordance with
this Indenture;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Special Servicer or the Trustee and,
in the event that the Special Servicer, or the Trustee, as applicable, shall
consent to the making of such payments directly to the Holders, to pay to the
Special Servicer, on behalf of the Trustee, any amount due it or the Trustee
for the reasonable compensation, expenses, Advances (with interest thereon at
the Advance Interest Rate) and disbursements of the Servicer, the Special
Servicer or the Trustee, their respective agents and counsel, and any other
amounts due the Trustee hereunder.
Nothing contained in this Article V shall be interpreted as limiting the
right or responsibility of the Servicer and Special Servicer to take any
actions on behalf of the Trustee in furtherance or fulfillment of the
Servicer's or Special Servicer's responsibility to service the Note
Indebtedness and the Underlying Loans as set out in Article VII. In addition,
nothing herein contained shall be deemed to limit each Holder's right to file
and prove its claim with respect to Notes held by it and to collect and receive
any award in any such proceeding, or to authorize the Servicer and Special
Servicer to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, rehabilitation, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Servicer and Special Servicer to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 5.5 SERVICER MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Servicer or Special Servicer on behalf of the
Trustee (or the Trustee at the direction of the Servicer or Special Servicer if
the nature of such action so requires), without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Servicer or Special Servicer on behalf of the
Trustee (or the Trustee at the direction of the Servicer or Special Servicer if
the nature of such action so requires) shall be brought in the Trustee's name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Servicer or Special Servicer (and the
Trustee, if applicable), its agents and counsel, be for the ratable benefit of
the Holders of Notes, if any, in respect of which such judgment has been
recovered.
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SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Upon the occurrence and during the continuance of an Event of Default, money
collected by the Servicer, the Special Servicer or the Trustee hereunder
(including, without limitation, all money remitted by the Servicer or the
Special Servicer to the Trustee for deposit into the Payment Account pursuant
to Section 7.6 hereof) shall be applied in the following order, at the date or
dates fixed by the Trustee (it being the intent that payments of accrued
interest, if funds are available therefor, shall occur not later than each
Payment Date) and, in case of the distribution of such money on account of the
principal of or interest on, the Notes, upon presentation of the Notes (to the
extent not held in global form), and the notation thereon of the payment if
only partially paid and upon surrender thereof:
(i) first, to the payment of any Trustee Fee, Servicing Fees, Special
Servicing Fees, as well as any other amounts due and payable to the Trustee,
the Servicer or the Special Servicer and, second, to the repayment of any
unreimbursed Advance that has been determined to be a Nonrecoverable Advance
made by the Servicer or the Special Servicer (and interest thereon at the
Advance Interest Rate);
(ii) to the payment to the Holders, pro rata until paid in full, of any
additional interest accrued to the Holders and then due and payable on the
Notes on account of a late payment charge on an Underlying Loan or any Exit
Fee;
(iii) to the payment to the Holders, pro rata until paid in full, any
interest then due and payable on the Notes, including any interest at the
Default Rate but excluding any amounts included within clause (ii) above;
(iv) to the payment to the Holders, pro rata until paid in full, any
principal then due and payable on the Notes;
(v) to the repayment, first to the Servicer, and second to the Special
Servicer, of any Advances that were not repaid pursuant to clause (i) above,
and any accrued but unpaid interest thereon at the Advance Interest Rate; and
(vi) to the payment of the remainder, if any, to the Trustee for deposit
in the Redemption Account.
For purposes of Section 10.5 and clauses (iii) through (vi) of this Section
5.6, amounts withheld on account of taxes from money collected by the Trustee,
the Servicer or the Special Servicer as a result of the identity, the
jurisdiction of organization, residence or citizenship or any other
characteristic of a Holder or beneficial owner of any Note shall be treated as
having been distributed by the Trustee to such Holder or to the Holder through
which such beneficial owner holds such Note, or to any successor to any such
Holder.
Payment on the Outstanding Notes shall be on a pro rata basis and shall be
based, with respect to interest, on the relative proportions of the accrued
interest on any Note to the aggregate amount of accrued interest on all
Outstanding Notes and, with respect to principal, on the relative proportions
of the unpaid principal amount of any Outstanding Notes to the aggregate unpaid
principal amount of all Outstanding Notes and, with respect to any other
amounts, on the relative proportions of such amounts due and payable on any
Note to the aggregate amount of such amounts due and payable on all Outstanding
Notes.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Note shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, any Note or any other
Security Document, or for the appointment of a receiver or trustee, or for any
other remedy hereunder or thereunder, unless:
(a) such Holder has previously given written notice to the Trustee, the
Servicer or Special Servicer of a continuing Event of Default;
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(b) the Majority Holders have made written request to the Special
Servicer to institute proceedings in respect of such Event of Default in the
name of the Trustee as Trustee; PROVIDED, HOWEVER, that the Special Servicer
shall not be required to institute such proceedings at the direction of such
Holders that would cause it to violate the Servicing Standards;
(c) such Holder or Holders have offered to the Servicer and Special
Servicer reasonable indemnity or security against any potential losses,
expenses and liabilities to be incurred in connection with such request;
(d) the Special Servicer for sixty (60) days after its receipt of such
notice, request and offer of indemnity or security has failed to institute
any such proceeding;
(e) no direction inconsistent with such written request has been given to
the Special Servicer during such sixty (60) day period by the Majority
Holders; and
(f) an Event of Default shall have occurred and be continuing;
it being understood and intended that, except to the extent provided in Section
5.12(a), no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
The Holders may exercise their rights under this Section 5.7 independently
without being subject to Section 1.3.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note at the Scheduled Maturity
Date expressed in such Note (or in the case of a redemption, to receive payment
of the Redemption Price for such Note, on the Redemption Date) and such rights
shall not be impaired without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Special Servicer, the Servicer (or the Trustee at the request of the
Special Servicer) or, subject to Section 5.7, any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture or under any
other Security Document and such proceeding has been discontinued, waived,
rescinded, or abandoned for any reason, or has been determined adversely to the
Trustee, the Special Servicer, the Servicer or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Issuer,
the Trustee, the Special Servicer, the Servicer and the Holders shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee, the Holders, the Special
Servicer, the Servicer and the Issuer shall continue as though no such
proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in Section 3.10, no right or remedy
herein conferred upon or reserved to the Trustee, the Servicer, the Special
Servicer or to the Holders of Notes is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
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SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee, the Servicer, the Special Servicer or
any Holder of any Note to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Indenture or by any of the Security Documents or by law to the Trustee,
the Servicer, the Special Servicer or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, to the extent permitted by
applicable law, by the Trustee, the Servicer, the Special Servicer or by the
Holders entitled to exercise such remedies, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS.
(a) Subject to matters described herein which require the consent of 100% of
the Holders of Notes, prior to the Scheduled Maturity Date, during the
continuance of an Event of Default, the Majority Holders will have the right to
direct the time, place and method of conducting any proceeding for any remedy
available to the Special Servicer; PROVIDED, HOWEVER, that any such direction
shall not conflict with applicable law or the Security Documents or cause the
Special Servicer to violate the Servicing Standards. Following an Event of
Default which has occurred and is continuing prior to the Maturity Date, the
Special Servicer shall prepare a plan of action with respect to such Event of
Default and shall give notice thereof to the Trustee, which will forward copies
of such plan and of any material change therein (other than a material change
at the written direction of the Majority Holders as contemplated below) through
to each Holder of Notes. Unless within 10 days after such notice is given the
Majority Holders have objected thereto in writing, the Special Servicer shall
follow its original or modified, as the case may be, planned course of action.
If the Majority Holders have objected in writing within such 10-day period,
such Holders shall have an additional 10 days to provide the Special Servicer
with an alternative plan of action. In the event that within such second 10-day
period the Majority Holders have provided the Special Servicer with such
alternative plan of action, the Special Servicer shall follow such alternative
plan of action, unless the Special Servicer has determined that such
alternative plan of action conflicts with applicable law or the Security
Documents or is contrary to the Servicing Standards, in which case the Special
Servicer will follow its original planned course of action. If no such
alternative plan is provided in such second 10-day period, the Special Servicer
shall proceed with its original plan of action. In addition, notwithstanding
the foregoing, the Special Servicer may take action prior to the lapse of
either such 10-day period if it determines, in accordance with the Servicing
Standards, that such action is required by the Servicing Standards in order to
avoid a material adverse effect on the Holders or is in the nature of an
emergency, and shall have no liability to the Issuer, any Underlying Borrower,
any party or any Holder for taking any such action that meets the foregoing
standards. In addition, the Special Servicer will have no liability and shall
be held harmless by the Holders for any action taken pursuant to a planned
course of action directed by the Majority Holders which is in contradiction to
the Special Servicer's original plan of action, provided such action is in
accordance with the Servicing Standards. Notwithstanding any other provision of
this Indenture to the contrary, any rights of less than 100% of the Holders
hereunder to consent to or direct any action or inaction shall be subject to
the rights of the Majority Holders and the Special Servicer pursuant to this
Section 5.12(a).
(b) Notwithstanding anything herein to the contrary, if in connection with
any Event of Default the Special Servicer has recommended the commencement of
foreclosure or any proceedings or actions which relate to the realization
against any Collateral, or the Special Servicer has recommended the sale or
liquidation of any Foreclosed Collateral, and, in either case, the requisite
Holders have disapproved or have not approved such action pursuant to this
Indenture, the Special Servicer shall nevertheless be required to commence such
foreclosure proceedings or actions and sell or liquidate such property, as the
case may be, in accordance with the Servicing Standards, upon but only upon a
determination by the Servicer, the Special Servicer or the Trustee that any
previously made and unreimbursed Advances with interest thereon constitute
Nonrecoverable Advances.
(c) The Majority Holders will have the right to terminate and replace the
Special Servicer.
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SECTION 5.13 WAIVER OF PAST DEFAULTS.
Subject to the Servicer's and Special Servicer's obligation to act in
accordance with the Servicing Standards and subject to Section 5.12(b), the
Majority Holders may on behalf of the Holders of all the Notes waive any past
Event of Default hereunder and its consequences, except:
(a) an Event of Default Pursuant to Section 5.1(a), (b) or (f) hereof, or
Section 4.1 of the Mortgage Note or, then a waiver will require the consent
of 100% of the Holders in aggregate principal amount of the Outstanding
Notes directly affected;
(b) an Event of Default in respect of a covenant or provision hereof or
under the Mortgage or Mezzanine Loan Agreement that under Article IX cannot
be modified or amended without the consent of the Holder of each Outstanding
Note affected thereby;
(c) a default depriving the Trustee of a lien on any part of the
Collateral;
(d) a default depriving the Trustee, the Fiscal Agent (if any), the
Servicer or the Special Servicer of any fees, reimbursement or
indemnification to which it is entitled, for which a waiver will require the
consent of the Trustee, the Fiscal Agent (if any), the Servicer or the
Special Servicer, as applicable, which consent may be withheld in the sole
discretion of the Trustee, the Fiscal Agent (if any), the Servicer or the
Special Servicer, as applicable; or
(e) an Event of Default that is an Event of Default occurring on the
Scheduled Maturity Date.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture, but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Note by its
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture or any other Security Document, or in any suit against the
Trustee or the Servicer or Special Servicer for any action taken, suffered or
omitted by the Trustee or the Servicer or Special Servicer, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section shall not apply
to any suit instituted by the Issuer, or to any suit instituted by the Trustee,
or to any suit instituted by the Servicer or Special Servicer, or to any suit
instituted by any Holder, or group of Holders, holding in the aggregate at
least 25% in aggregate principal amount of Outstanding Notes, or to any suit
instituted by any Holder of any Note for the enforcement of the payment of the
principal of or interest on any Note on or after the Maturity Date (or, in the
case of redemption, on or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties, responsibilities and liabilities of the Trustee in respect
of the Security Documents and the other duties and liabilities of the Trustee
under this Indenture shall be as follows:
(i) The Trustee (and the Servicer or Special Servicer on its behalf)
shall have the full power and authority to do all things not inconsistent
with the provisions of this Indenture or any other Security
43
Document that it may deem advisable in order to enforce the provisions
hereof or thereof or to take any action with respect to a default or an
Event of Default hereunder or thereunder, of which a Responsible Officer
shall have actual knowledge or with respect to which notice was given to the
Trustee in accordance with this Indenture, or to institute, appear in or
defend any suit or other proceeding with respect hereto or thereto, or to
protect the interests of the Holders of Notes; PROVIDED, HOWEVER, that
notwithstanding the foregoing or any other provisions of this Indenture to
the contrary, the Note Indebtedness and the Underlying Loans shall be
serviced by the Servicer or the Special Servicer and the powers vested in
the Servicer and Special Servicer hereunder shall not be exercised by the
Trustee except as expressly set forth herein. Neither the Trustee nor any of
its directors, officers, shareholders, agents or employees (each, a "TRUSTEE
INDEMNIFIED PARTY" and, collectively, the "TRUSTEE INDEMNIFIED PARTIES")
shall be answerable to or accountable for, except for its or their own bad
faith, willful misconduct or negligence, and the Issuer agrees to indemnify
and save harmless the Trustee Indemnified Parties from, any costs, expenses,
liabilities and damages that any of them may incur or sustain, in good faith
and without willful misconduct or negligence, in the exercise and
performance of the Trustee's powers and duties hereunder, including the cost
and expense of defending themselves against any claim or liability in
connection with the exercise or performance thereof; PROVIDED, HOWEVER, that
if it is found that any such claim or liability has resulted from the bad
faith, willful misconduct or negligence of any Trustee Indemnified Party in
the performance of its duties hereunder, such Trustee Indemnified Party
shall repay such portion of the reimbursed amounts that is attributable to
expenses incurred in relation to that portion of its acts or omissions that
is the subject of such finding. If any Trustee Indemnified Party is entitled
to receive indemnification hereunder with respect to any such action or
proceeding brought by a third party, the Issuer shall be entitled to assume
the defense of any such action or proceeding with counsel reasonably
satisfactory to such Trustee Indemnified Party who shall not, except with
the consent of such Trustee Indemnified Party, be counsel to the Issuer or
any Affiliate thereof. Upon assumption by the Issuer of the defense of any
such action or proceeding, such Trustee Indemnified Party shall have the
right to participate in such action or proceeding and to retain its own
separate counsel, but the Issuer shall not be liable for any legal fees or
expenses of such a separate counsel subsequently incurred by such Trustee
Indemnified Party in connection with the defense thereof unless (i) the
Issuer has agreed to pay such fees and expenses or (ii) counsel provided by
the Issuer pursuant to the foregoing is counsel to the Issuer and such
Trustee Indemnified Party shall have been advised by such counsel that
representation of such Trustee Indemnified Party by such counsel provided by
the Issuer pursuant to the foregoing would be inappropriate due to actual or
potential conflicting interests between the Issuer and such Trustee
Indemnified Party, including situations in which there are one or more legal
defenses available to such Trustee Indemnified Party that are different from
or additional to those available to the Issuer; PROVIDED, HOWEVER, that the
Issuer shall not, in connection with any such action or proceeding, or
separate but substantially similar action or proceeding arising out of the
same general allegations, be liable for the fees and expenses of more than
one separate firm of attorneys at any time, in addition to any local
counsel, for any such Trustee Indemnified Party. The Issuer shall not
consent to the terms of any compromise or settlement of any action defended
by the Issuer in accordance with the foregoing without the prior consent of
the Trustee Indemnified Party. The Issuer shall not be required to indemnify
any Trustee Indemnified Party for any amount paid or payable by such Trustee
Indemnified Party in settlement of any action, proceeding or investigation
without the prior written consent of the Issuer, which consent shall not be
unreasonably withheld. Promptly after receipt by any Trustee Indemnified
Party of notice of its involvement (or the involvement of any of its
affiliates or such affiliate's directors, officers, shareholders, agents or
employees) in any action, proceeding or investigation, such Trustee
Indemnified Party shall, if a claim for indemnification in respect thereof
is to be made against the Issuer hereunder, notify the Issuer in writing of
such involvement, but the failure of such Trustee Indemnified Party to
provide such notice shall neither cause the forfeiture of the right to
receive indemnity hereunder nor limit such right, except to the extent, if
any, that the Issuer is prejudiced by the failure of the Trustee Indemnified
Party to promptly give such notice. The Issuer's indemnification obligations
under this Section 6.1(a)(i) shall survive payment of the Notes and any
resignation, removal or replacement of the Trustee. The indemnification
provided herein is limited in each case to actual damages and does not
extend to consequential damages.
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The Trustee shall have no obligation to take any action to protect,
preserve or enforce any rights or interests in the Security Documents or
towards the execution or enforcement of the trusts hereby or thereby created
which, in its opinion, shall be likely to involve expense or liability to
the Trustee, unless the Trustee shall have received an agreement
satisfactory to the Trustee in its sole discretion to indemnify it against
such liability and expense. The Trustee shall not be required to ascertain
or inquire as to the performance or observance of any of the covenants or
agreements contained herein, or in any other Security Document or in any
other instruments to be performed or observed by the Issuer or any other
party to any Security Document (including, without limitation, the necessity
or desirability under any applicable state law to re-record, re-register or
re-file any Security Document). In accepting the trusts hereunder and under
the Security Documents, the Trustee is acting solely as Trustee hereunder
and not in its individual capacity and all Persons, other than the Issuer
and the Holders, having any claim against the Trustee arising by reason
hereof shall look only to the Collateral for payment or satisfaction thereof
except as provided herein.
(ii) The Trustee shall incur no liability in acting upon any signature,
notice, request, consent, certificate, opinion, or other instrument
reasonably believed by it to be genuine. In administering the trusts, the
Trustee may exercise any of the powers hereof directly or through its agents
or attorneys and may, at the expense of the Issuer, consult with counsel,
accountants and other skilled Persons to be selected and employed by it, and
the reasonable expenses thereof shall be paid by the Issuer, and the Trustee
shall not be liable for anything done, suffered or omitted in good faith by
it in accordance with the advice of any such Person nor for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall have no duty to make, arrange or ensure the
completion of any recording, filing or registration of this Indenture, any
Security Document, any instrument of further assurance, any instrument
constituting part of the Underlying Collateral, or any amendments or
supplements to any of said instruments and the Trustee shall have no duty to
make, arrange or ensure the completion of the payment of any fees, charges
or taxes in connection therewith (and the Trustee may act with respect to
the Security Documents and pay out deposited monies without regard thereto),
or to give any notice thereof, or to make, arrange or ensure the completion
of the payment of or be under any duty in respect of any tax, assessment or
other governmental charge that may be levied or assessed on the Underlying
Collateral, the Underlying Properties or any part thereof or against the
Issuer. Notwithstanding the foregoing, the Trustee agrees that it will
notify the Issuer in writing of any filings, fees, taxes or other payments
required in connection with the satisfaction of the Issuer's obligations
hereunder and under the other Security Documents known to any Responsible
Officer of the Trustee assigned to its Corporate Trust Office and actively
involved in the administration of this Indenture.
(iv) Whenever, in administering the trust, the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee may, in the
absence of bad faith on the part of the Trustee, request and rely upon
(unless other evidence in respect thereof be specifically prescribed herein
or in any Security Document) an Officer's Certificate of the Issuer, and
such Officer's Certificate shall be full warrant to the Trustee for any
action taken, suffered or omitted by it on the faith thereof, but in its
discretion the Trustee may in lieu thereof accept other evidence of such
fact or matter or may require such further or additional evidence as it may
deem reasonable.
(v) Whenever, in administering the trust, the Trustee shall be permitted
whether pursuant to the terms of this Indenture or any other Security
Document, to determine to grant or withhold its consent to or waiver or
approval of any matter described herein or therein or to take or omit to
take any action or course of conduct permitted or required hereunder or
thereunder, the Trustee shall be fully protected in making such
determination based solely upon the written direction of the Servicer,
Special Servicer or, absent such direction, (a) on the basis of the related
submission required by this Indenture or by such other Security Document, as
the case may be, or (b) if a standard for such determination is specified
herein or therein, on the basis of its determination in good faith as to
whether or not such standard has been satisfied, or (c) if no such standard
is specified, on the basis of its determination in good faith as to (x) with
respect to any act, omission or course of conduct, whether such act,
omission or course of conduct is reasonable (which
45
determination may be made solely on the basis of advice from professionals
selected by the Trustee with reasonable care) and (y) with respect to the
selection of any professional, whether the party proposing the engagement of
such professional is motivated primarily by interests contrary to those of
the Holders in making such proposal, PROVIDED, in each case, that the
Trustee grants or withholds its consent or approval or takes any other
action on a timely basis. The Trustee shall not be required to seek the
individual consents or approvals of the Holders with respect to any such
consent or approval unless the same shall be explicitly required by the
terms of this Indenture or such other Security Document, as the case may be.
Without limiting the generality of the foregoing, in the event the approval
of the Trustee is requested by the Servicer or Special Servicer with respect
to a settlement of an insurance claim pursuant to the Mortgage or the
Mezzanine Loan Agreement, the Trustee shall be fully protected in granting
such approval based on directions from the Servicer or Special Servicer and
the Servicer or Special Servicer shall be protected in providing such
direction if the Servicer or Special Servicer has selected and retained, in
accordance with the Servicing Standards, a qualified independent insurance
adjuster who has advised the Servicer or Special Servicer that the proposed
settlement is reasonable, and the Trustee determines in good faith, solely
on the basis of such advice, that such settlement is reasonable.
Notwithstanding anything to the contrary herein or in any of the other
Security Documents, neither the Trustee (at the request of the Servicer or
Special Servicer) nor the Servicer or Special Servicer on its behalf shall
consent to the transfer of the Underlying Collateral or any beneficial
interest therein, any modification or waiver of the other Security Documents
or the terms of this Indenture (other than modifications or waivers that may
be made unilaterally (within the meaning of Prop. Treas. Reg. (S) 1.1001-3,
or any successor provision) as provided herein or in the other Security
Documents), any release of any property pledged pursuant to this Indenture
or the other Security Documents, or any release of the Issuer from its
obligations hereunder or under the other Security Documents (other than any
actions expressly contemplated by this Indenture or the other Security
Documents in connection with payments on the Notes (including any
redemptions) or otherwise), unless the Issuer has obtained and delivered to
the Trustee, the Servicer and the Special Servicer an Opinion of Counsel
from counsel experienced in federal income tax matters that such consent or
modification, or waiver, as the case may be, will not be treated as an
exchange of any Note for a newly issued obligation pursuant to Section 1001
of the Code.
(vi) The Trustee shall have no obligation to see to the payment or
discharge of any liens (other than the liens of the Security Documents, and
then only to the extent therein provided), or to see to the application of
any payment of the principal of or interest on the Notes or the Underlying
Loans secured by any such lien or to the delivery or transfer to any Person
of any property released from any such lien, or to give notice to or make
demand upon any borrower, lender, trustor, beneficiary or other Person for
the delivery or transfer of any such property.
(vii) The Trustee shall not be concerned with or accountable to any
Person for the use or application of any deposited monies that shall be
released or withdrawn in accordance with the provisions hereof or of any
other Security Document or of any property or securities or the proceeds
thereof that shall be released from the lien hereof or thereof in accordance
with the provisions hereof or thereof and the Trustee shall have no
liability for the acts of other parties hereto that are not in accordance
with the provisions hereof.
(viii) The Trustee shall not be charged with knowledge of any Event of
Default hereunder or under any other Security Document (except default in
the payment of monies to the Trustee that the Issuer is required to pay or
cause to be paid to the Trustee on or before a specified date and except
default in the delivery of any certificate, opinion or other document
expressly required to be delivered to the Trustee by any provision hereof or
any Security Document) or any condition which after notice and/or the
passage of time would constitute an Event of Default or any other fact,
circumstance or event the occurrence of which would require the Trustee to
give any notice or otherwise take any action (any such Event of Default,
condition, circumstance or other event, an "EVENT"), unless either (i) a
Responsible Officer of the Trustee assigned to its Corporate Trust Office
shall have actual knowledge of such Event or (ii) written notice in the
manner provided in this Indenture of such Event shall have been given to and
received by the Trustee, by the Issuer, the Servicer, the Special Servicer
or any Holder or Holders of at least 25% in aggregate principal amount of
the Notes then Outstanding.
46
(ix) The Trustee shall not be responsible for any act or omission of the
Servicer or Special Servicer.
(b) Except during the continuance of an Event of Default of which a
Responsible Officer of the Trustee shall have actual knowledge (or with respect
to which notice was given to the Trustee in accordance with this Indenture)
with respect to the Notes, the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee.
(c) In the absence of actual knowledge of a Responsible Officer to the
contrary or bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform on their face to the requirements of
this Indenture.
(d) In case an Event of Default known to a Responsible Officer of the
Trustee (or with respect to which notice was given to the Trustee in accordance
with this Indenture) with respect to the Notes has occurred and is continuing,
the Trustee shall exercise (subject, in all cases, to the rights and powers
vested in the Servicer and Special Servicer pursuant to this Indenture), with
respect to the Notes, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent Person would exercise or use under the circumstances in the conduct of
his own affairs.
(e) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct, EXCEPT that
(i) this Subsection (e) shall not be construed to limit the effect of
Subsection (a) or (b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved by a court of
competent jurisdiction that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith and without negligence in accordance
with the terms of this Indenture and the direction of the Majority Holders,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Notes or the
Security Documents.
SECTION 6.2 MONEY HELD IN TRUST.
Accounts established by the Trustee hereunder shall be subject to
regulations regarding fiduciary funds on deposit substantially similar to those
described in 12 C.F.R. (S) 9.10(b). Money held by the Trustee hereunder shall
be held in trust for the purposes for which it was paid, and shall be
segregated from any other monies held by the Trustee, and may be deposited by
the Trustee, under such general conditions as may be prescribed by law, in the
trust department of the Trustee. All such moneys shall be held in Eligible
Accounts. The Trustee shall be under no liability for interest on any money
received by it hereunder except as provided in this Indenture, the Cash
Management Agreement, the Mezzanine Cash Management Agreement or as otherwise
agreed with the Issuer. Within a reasonable time after the end of each calendar
year or portion thereof during the term of the Notes, the Trustee shall cause
the depository for any accounts referred to in this Article to deliver to the
Issuer, the Servicer and the Trustee and, upon request, to the Holder of any
Note a statement of any amounts received or disbursed by the Trustee in respect
of the Collateral during such calendar year or portion thereof.
SECTION 6.3 NOTICE OF DEFAULTS.
The Trustee shall give the Holders, the Servicer, the Special Servicer and
the Issuer notice of any default hereunder as and to the extent provided by the
Trust Indenture Act; PROVIDED, HOWEVER, that in the case of any
47
default of the character specified in Section 5.1(c), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
SECTION 6.4 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Issuer referred to herein shall be
sufficiently evidenced by the Issuer Request or the Issuer Order;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting to take any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice or
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to expend its own funds or
to exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer
personally or by agent or attorney (any such examination to be made upon
reasonable advance notice and at reasonable times, except that if an Event
of Default has occurred and is continuing such examination shall be
permitted at such times, with or without notice, as the Trustee may select
in its sole discretion);
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys;
(h) the Trustee shall not be personally liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture; and
(i) all rights and protections afforded to the Trustee in accordance with
this Indenture shall apply to the Trustee when it is acting as the Fiscal
Agent, the Registrar or in any other capacity in accordance with this
Indenture.
SECTION 6.5 COMPENSATION AND REIMBURSEMENT.
The Issuer agrees:
(a) to pay to the Trustee the Trustee Fee and such other amounts due from
time to time pursuant to this Indenture;
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(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in carrying out its duties and
responsibilities under this Indenture or under the other Security Documents,
including, without limitation, the reasonable compensation, expenses and
disbursements of its agents and counsel, any amounts required to be expended
by the Trustee in compliance with Article XII hereof, and any expenses
incurred in connection with the transfer or reassignment by the Trustee to a
successor trustee of any Security Document pursuant to Section 6.11, except
any such expense, disbursement or advance as may be attributable to the
Trustee's negligence, willful misconduct or bad faith;
(c) that the Trustee Indemnified Parties shall not be answerable to or
accountable for, except in the case of their own bad faith, willful
misconduct or negligence, and, the Issuer agrees to indemnify, consistent
with the provisions set forth in Section 6.1(a)(i) hereof, each of the
Trustee Indemnified Parties for, and to hold them harmless against, any
loss, liability, damage or expense that it may incur or sustain without
negligence, willful misconduct, or bad faith on its part, arising out of or
in connection with the exercise and performance of the Trustee's powers and
duties hereunder and the acceptance or administration of the trust or trusts
hereunder, under the Mortgage, Mezzanine Loan Agreement or under any other
instrument included in the Collateral, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of the Trustee's powers or duties hereunder.
The indemnification obligation of the Issuer under this Section 6.5(c) shall
survive payment of the Notes and any resignation, removal or replacement of
the Trustee; and
(d) the expenses and the compensation for the services rendered by the
Trustee or the Servicer after an Event of Default as specified in Section
5.1(d) or Section 5.1(e) hereof in connection herewith are intended to
constitute expenses of administration under any bankruptcy proceeding.
SECTION 6.6 CONFIDENTIALITY.
Unless an Event of Default has occurred and is continuing, the Holders of
Notes (each in their individual capacities only) shall not have any right to
obtain any information relating to the Underlying Collateral or the Underlying
Properties, including information regarding lease rents, any rent rolls or
copies of any leases, except as expressly provided for herein. Each of the
Trustee, the Special Servicer, and the Servicer agree to keep confidential, and
to cause their respective directors, officers, employees, agents, attorneys,
accountants, financial advisors and other representatives to keep confidential,
all leases, lease abstracts, rent rolls, financial statements, appraisals and
other financial information, including information relating to lease terms and
identities of tenants, furnished to, or obtained by, the Trustee, the Special
Servicer or the Servicer hereunder (the "CONFIDENTIAL INFORMATION") and to use
reasonable efforts, if such material is not marked "Proprietary" or
"Confidential", and to use special efforts, if such material is so marked, to
not, without the prior written consent of the Issuer, disclose such
Confidential Information in whole or in part in any manner whatsoever;
PROVIDED, HOWEVER, that the Trustee shall be permitted to fulfill its
responsibilities under Section 6.17 hereof and the Trustee, the Special
Servicer, the Servicer, and their representatives shall be permitted to
disclose Confidential Information if (i) required by law (or regulations
thereunder) or (ii) such disclosure is necessary for either the Trustee, the
Special Servicer or the Servicer to perform its duties hereunder or (iii) an
Event of Default shall have occurred and be continuing and such disclosure is
made in connection with the enforcement of the provisions of the Notes, this
Indenture or any other Security Document or (iv) such disclosure is appropriate
in working with its regulators (or those of its corporate parent), to such
regulators. This Section shall not apply to any provisions of the Confidential
Information that are or become generally available to the public or to
information in or incorporated by reference in any Registration Statement.
SECTION 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a trust
company, a national banking association or a banking corporation, in each case
organized and doing business under the laws of the United States, any state
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust
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powers (i) having a long-term unsecured debt rating not less than AA (or its
equivalent) (without regard to any '+' or '-' or numerical designation) by at
least one NRSRO (unless a Fiscal Agent has been appointed hereunder which has
such rating) and (ii) a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by federal or state authority. If
such corporation or national banking association publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation or national banking association shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article and in the last paragraph of Section 3.6.
SECTION 6.8 REPRESENTATIONS AND WARRANTIES OF THE TRUSTEE.
The Trustee hereby represents and warrants to the other parties hereto that,
as of the Closing Date:
(a) the Trustee has been duly organized and is validly existing under the
laws of the State of New York and is qualified under the laws of the
jurisdictions in which the Collateral and the Underlying Properties are
located to the extent necessary to perform its obligations in accordance
with the terms of this Indenture except to the extent that the laws of any
state in which the Indenture Collateral is located may require the
appointment of a co-trustee for the enforcement of its rights with respect
to the Indenture Collateral;
(b) the execution and delivery of this Indenture and the other Security
Documents to which it is a party by the Trustee have been duly authorized by
all necessary corporate action on the part of the Trustee; the Trustee is
duly authorized under applicable law, its articles of incorporation and its
by-laws to authenticate the Notes, to accept the delivery of the Collateral
and to perform its obligations under this Indenture andeach of the other
Security Documents to which it is a party, and all corporate action
necessary or required therefor has been duly and effectively taken or
obtained; none of the execution, delivery and performance of this Indenture,
or the consummation of the transactions herein contemplated, nor the
compliance with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under (i) the terms of any agreement or
instrument to which the Trustee is a party or by which it is bound; (ii) the
certificate of incorporation or by-laws of the Trustee; or (iii) to the
Trustee's knowledge, the provisions of any law, governmental rule,
regulation, judgment, decree or order binding on the Trustee or its
properties; neither the Trustee nor any of its Affiliates is a party to,
bound by, or in breach of or in violation of any material indenture or other
agreement or instrument, or subject to or in violation of any statute, order
or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and
adversely affects or to the knowledge of the Trustee may in the future
materially and adversely affect (x) the ability of the Trustee to perform
its obligations under this Indenture or (y) the business, operations,
financial condition, properties or assets of the Trustee;
(c) the execution and delivery by the Trustee of this Indenture and the
consummation of the transactions contemplated hereby (with the benefit of
the provisions hereof) do not require any consent, approval, authorization,
order, registration or qualification of or with any court or any regulatory
authority or other governmental agency or body, except such as has been
obtained and is in full force and effect;
(d) this Indenture has been duly executed and delivered by the Trustee
and, assuming due authorization, execution and delivery by the other parties
hereto, constitutes a valid and legally binding obligation of the Trustee
enforceable against it in accordance with its terms, subject to (i)
applicable bankruptcy, fraudulent conveyance or transfer, insolvency,
reorganization, moratorium or similar laws of general applicability relating
to or affecting the rights and remedies of creditors generally and (ii) the
application of principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law);
(e) there are no actions, suits or proceedings pending or, to the
Trustee's knowledge, threatened against the Trustee, before or by any court,
administrative agency, arbitrator or governmental body (i) with
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respect to any of the transactions contemplated by this Indenture or (ii)
with respect to any other matter which could, if determined adversely to the
Trustee, materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or adversely affect its
ability to perform its obligations under this Indenture; and
(f) the Trustee is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or otherwise)
or operations of the Trustee or its properties or might have consequences
that would materially and adversely affect its performance hereunder.
Within thirty (30) days of the earlier of discovery by the Trustee or
receipt of notice by the Trustee of the breach of any representation or
warranty of the Trustee set forth in this Section 6.8, the Trustee shall cure
such breach in all material respects.
SECTION 6.9 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article, and
shall be deemed to have assumed all of the liabilities and obligations of the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto (other than such Person). In case
any Notes shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion, consolidation or succession to
such authenticating Trustee may adopt such authentication and deliver the Notes
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Trustee may resign at any time by giving written notice thereof to
the Servicer, the Special Servicer and the Issuer. No resignation or removal of
the Trustee and no appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 6.11.
(b) If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within thirty (30)
days after the giving of a notice of resignation as contemplated in clause (a)
above, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Notes by the
Majority Holders and notice of such action by such Holders shall be delivered
to the Trustee, the Issuer, the Servicer and the Special Servicer.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.6 or shall fail to
comply with Section 6.12 after written request for compliance by the Issuer
or any Holder who has been a bona fide Holder for at least six (6) months, or
(ii) the Trustee shall cease to be eligible under Section 6.7, or the
representations in Section 6.8 shall prove to be untrue, and the Trustee
shall fail to resign after written request therefor by the Issuer or any
such Holder referred to in clause (i) above, or
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(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (i) the Issuer, the Servicer or Majority Holders may
remove the Trustee with respect to the Notes, or (ii) subject to Section 5.14,
any Holder of a Note may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to the Notes and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Notes, the Issuer shall promptly appoint a successor Trustee or
Trustees satisfying the requirements of Section 6.7 with respect to the Notes
and shall comply with the applicable requirements of Section 6.11. If, within
fifteen (15) days after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall not have been appointed
by the Issuer or, if appointed, shall not have accepted such appointment in
accordance with the applicable requirements of Section 6.11, then a successor
Trustee shall be appointed by the Servicer or the Act of the Majority Holders
delivered to the Issuer and the retiring Trustee, and the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Notes. Upon such resignation, removal,
incapacity or other vacancy, the Trustee shall forward all documents relating
to the Notes to the successor Trustee at the address provided by the Issuer.
If, within sixty (60) days after such resignation, removal or incapability,
or the occurrence of such vacancy, no successor Trustee shall have been so
appointed and accepted appointment in the manner required by Section 6.11, any
bona fide Holder may, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Issuer or the Servicer, as applicable, shall give notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee by giving notice of such event to each of the Holders, the Servicer and
the Special Servicer in accordance with Sections 1.5 and 1.6. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Trust Office.
(g) The resignation or removal of the Trustee shall automatically result in
the removal of the Fiscal Agent from its obligations hereunder as of such date
of registration or removal.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In case of the appointment hereunder of a successor Trustee, the successor
Trustee so appointed shall execute, acknowledge and deliver to the Issuer, the
Servicer, the Special Servicer and the retiring Trustee an instrument accepting
such appointment and assuming the responsibilities of the Trustee hereunder,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Issuer or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, shall take such action as may be necessary to provide for
the appropriate interest in the Collateral to be vested in such successor
Trustee, and shall execute and deliver any amendments to the Security Documents
necessary in connection therewith, but shall not be responsible for the
recording of such documents and instruments as may be necessary to give effect
to the foregoing (which responsibility shall be borne by the successor
Trustee). In the event that the retiring Trustee is removed without cause, any
costs of transfer shall be paid by the party removing the retiring Trustee. The
retiring Trustee shall pay any costs of transfer to a successor Trustee in the
event the retiring Trustee is removed for cause.
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Upon request of any such successor Trustee, the Issuer shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in this
Section.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
SECTION 6.12 CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest (as defined in
Section 310 of the Trust Indenture Act), such Trustee shall, within ninety (90)
days after ascertaining that it has such conflicting interest and if the
default (as defined in Section 310 of such statute) has not been cured or duly
waived or otherwise eliminated before the end of such ninety-day period, either
eliminate such conflicting interest or resign, such resignation to become
effective upon the appointment of a successor Trustee and such successor's
acceptance of such appointment, and the Issuer shall take prompt steps to have
a successor appointed in the manner provided in Section 6.10 hereof.
SECTION 6.13 SELF DEALING.
The Trustee may purchase Eligible Investments through the Trustee, in its
individual capacity, and through its Affiliates, and such Persons may retain
any charges or commissions customarily imposed for such purchases.
SECTION 6.14 INVESTMENTS.
The Trustee shall invest any amounts held in the Payment Account (to the
extent required pursuant to Section 3.5) and any other account maintained by
the Trustee pursuant to this Indenture, pending their application to the
purposes herein provided, in one or more of the following investments (the
"ELIGIBLE INVESTMENTS"):
(i) obligations of the U.S. Treasury (all direct or fully guaranteed
obligations), PROVIDED, HOWEVER, that (A) the investments described in this
clause must have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest rate index
plus a fixed spread (if any) and must move proportionately with that index,
and (C) such investments must not be subject to liquidation prior to their
maturity; and
(ii) units of taxable money market funds which invest solely in
obligations described in clause (i) above;
PROVIDED, HOWEVER, that (1) no obligation or security shall be a Permitted
Investment if (A) such obligation or security evidences a right to receive only
interest payments or (B) the right to receive principal and interest payments
on such obligation or security is derived from an underlying investment that
provides a yield to maturity in excess of 120% of the yield to maturity at par
of such underlying investment, and (2) no investment described herein may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to maturity.
SECTION 6.15 UNCLAIMED FUNDS.
At the expiration of two (2) years following the Maturity Date of the Notes
issued hereunder, any monies deposited in the Holdover Account for such Notes
then remaining on deposit and unclaimed by the lawful owner thereof shall be
paid to the Issuer (or in accordance with any written directions previously
given to the Trustee by the Issuer) and the Person entitled to receive such
monies thereafter shall look only to the Issuer for payment thereof as an
unsecured general creditor (without regard to any limitation on recourse
contained herein or in the Notes or any other Security Document), and all
liability of the Trustee with respect to such trust money shall
53
thereupon cease; PROVIDED that the Trustee, before being required to make any
such repayment, may, at the expense of the Issuer, cause to be published at
least once but not more than three times in any Authorized Newspaper (if the
Notes were, as of the Trustee's receipt of such payment, listed on a securities
exchange or an over-the-counter market) and in a newspaper in the English
language customarily published on each Business Day and of general circulation,
in New York, New York, a notice to the effect that said monies remain unclaimed
and have not been applied for the purpose for which they were deposited, and
that after a date specified therein, which shall be not less than thirty (30)
days after the date of first publication of said notice, any unclaimed balance
of said monies then remaining in the hands of the Trustee will be paid to the
Issuer upon its written directions. Any successor to the Issuer through merger,
consolidation or otherwise or any recipient of substantially all the assets of
the Issuer in a liquidation of the Issuer shall remain liable for the amount of
any unclaimed balance paid to the Issuer pursuant to this paragraph.
SECTION 6.16 ILLEGAL ACTS.
No provision of this Indenture or any amendment or supplement hereto shall
be deemed to impose any duty or obligation on the Trustee to do any act in the
performance of its duties hereunder or to exercise any right, power, duty or
obligation conferred or imposed on it, which under any present or future law
shall be unlawful, or which shall be beyond the corporate powers, authorization
or qualification of the Trustee.
SECTION 6.17 COMMUNICATIONS TO BE SENT TO THE ISSUER.
The Trustee shall:
(a) send to the Issuer, within five (5) days after the date on which any
installment of interest or principal on the Notes becomes due and payable
hereunder and is not paid, a written demand for payment thereof;
(b) send to the Issuer, within five (5) days after any amount other than
principal or interest becomes due and payable hereunder as notified by the
Servicer or Special Servicer and is not paid, a written demand for payment
of such amount;
(c) send to the Issuer, within five (5) Business Days after a Responsible
Officer of the Trustee acquires actual knowledge that any mechanic's or
other lien (other than Permitted Exceptions) shall have been filed against
the (Underlying Collateral, the Underlying Properties) or any part thereof,
a written demand that the Issuer cause the Underlying Borrowers to bond or
otherwise satisfy such lien unless the Servicer shall have already delivered
such notice and demand to the Issuer; and
(d) send to the Issuer, within seven (7) Business Days after a
Responsible Officer of the Trustee acquires actual knowledge of (A) any
failure of the Issuer or an Underlying Borrower to perform or comply with
any of the terms of this Indenture, the Mortgage, the Mezzanine Loan
Agreement, or any other Security Document, or (B) any breach, in any
material respect, of a representation or warranty made by the Issuer or an
Underlying Borrower in this Indenture, the Mezzanine Loan Agreement or the
Mortgage, respectively, written notice of such default, failure or breach
and demand for cure in accordance with the Indenture.
SECTION 6.18 REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange or over-the-counter
market upon which the Securities are listed, with the Commission and with the
Issuer. The Issuer will notify the Trustee when the Notes are listed on any
stock exchange or over-the-counter market.
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SECTION 6.19 SEPARATE TRUSTEES AND CO-TRUSTEES.
(a) If at any time the Trustee reasonably shall deem it necessary for the
purpose of meeting any legal requirements applicable to it in the performance
of its duties hereunder (including any legal requirements of any jurisdiction
in which any of the Collateral is located), the Trustee shall have the power
to, and shall, execute and deliver any and all instruments necessary to appoint
one or more Persons to act as separate trustees or co-trustees hereunder,
jointly with the Trustee, of any of the Collateral, to the extent applicable,
subject to this Indenture, and any such Persons shall be such separate trustee
or co-trustee, with such powers and duties consistent with this Indenture and
the other Security Documents as shall be specified in the instrument appointing
such Person but without thereby releasing the Trustee from any of its duties
hereunder. If the Trustee shall request the Issuer so to do, the Issuer shall
join with the Trustee in the execution of such instrument, but the Trustee
shall have the power to make such appointment without making such request and
without obtaining the Issuer's execution of such instrument. All fees and
expenses of any separate trustee or co-trustee shall be paid by the Issuer.
(b) Every separate trustee and co-trustee shall, to the extent not
prohibited by law, be subject to the following terms and conditions:
(i) the rights, powers, duties and obligations conferred or imposed upon
such separate or co-trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate or co-trustee jointly, as
shall be provided in the appointing instrument, except to the extent that
under any law of any jurisdiction in which any particular act is to be
performed any nonresident trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such separate trustee or co-trustee;
PROVIDED, HOWEVER, that in the event of a conflict between the instructions
or directions of the Trustee and any separate or co-trustee, the directions
of the Trustee shall govern;
(ii) all powers, duties, obligations and rights conferred upon the
Trustee, in respect of the custody of all cash and other securities to be
deposited with or otherwise held by the Trustee hereunder shall be exercised
solely by the Trustee;
(iii) the Trustee may at any time by written instrument accept the
resignation of or remove any such separate trustee or co-trustee, and, upon
the request of the Trustee, the Issuer shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to make effective such resignation or removal, but the
Trustee shall have the power to accept such resignation or to make such
removal without making such request. A successor to a separate trustee or
co-trustee so resigning or removed may be appointed in the manner otherwise
provided herein; and
(iv) the co-trustee shall resign immediately upon the resignation or
removal of the Trustee and the acceptance of appointment of a successor
Trustee hereunder.
(c) Such separate trustee or co-trustee, upon acceptance of such trust,
shall be vested with the estates or property specified in such instrument,
jointly with the Trustee and the Trustee shall take such action as may be
necessary to provide for the appropriate interest in the Collateral to be
vested in such separate trustee or co-trustee, the execution and delivery of
any amendments to the Security Documents necessary in connection therewith, and
the recording of such documents and instruments as may be necessary to give
effect to the foregoing. Any separate trustee or co-trustee may, at any time,
by written instrument constitute the Trustee, his agent or attorney-in-fact
with full power and authority, to the extent permitted by law, to do all acts
and things and exercise all discretion authorized or permitted by him, for and
on behalf of him and in his name. If any separate trustee or co-trustee shall
be dissolved, become incapable of acting, resign, be removed or die, all the
estates, property, rights, powers, trusts, duties and obligations of said
separate trustee or co-trustee, so far as permitted by law, shall vest in and
be exercised by the Trustee, without the appointment of a successor to said
separate trustee or co-trustee, until the appointment of a successor to said
separate trustee or co-trustee is necessary as provided in this Indenture. The
appointment of a co-trustee shall in no way release the Trustee from any of its
duties or responsibilities hereunder.
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(d) Any notice, request or other writing, by or on behalf of any Holder,
delivered to the Trustee shall be deemed to have been delivered to all separate
trustees and co-trustees.
SECTION 6.20 WITHHOLDING AND INFORMATION REPORTING.
The Trustee agrees with the Issuer that the Trustee will comply with all
applicable United States federal income tax withholding and any IRS Form 1099
interest reporting requirement.
SECTION 6.21 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Issuer, the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Issuer.
ARTICLE VII
THE SERVICER AND SPECIAL SERVICER
SECTION 7.1 SERVICER TO ACT AS SERVICER; SPECIAL SERVICER TO ACT AS SPECIAL
SERVICER.
Each of the Servicer and the Special Servicer, is an independent contract
servicer and shall service and administer the Note Indebtedness and the
Underlying Loans solely on behalf of, and in the best interests of (as
determined by the Servicer or Special Servicer in its reasonable judgment) and
for the benefit of the Holders in accordance with applicable law the terms of
this Indenture and the other Security Documents and the following Standards
(the "SERVICING STANDARDS"):
(i) (A) in the same manner in which and with the same care, skill,
prudence and diligence with which the Servicer or Special Servicer services
and administers similar mortgage and mezzanine loans for other third-party
portfolios, giving due consideration to customary and usual standards of
practice of prudent institutional commercial mortgage and mezzanine lenders
servicing their own mortgage and mezzanine loans and to the maximization of
the net present value of the Note Indebtedness and the Underlying Loans or
(B) with the care, skill, prudence and diligence the Servicer or Special
Servicer uses for mortgage and mezzanine loans which it owns and which are
substantially the same as the Note Indebtedness and the Underlying Loans,
giving due consideration to the maximization of the net present value of the
Note Indebtedness and the Underlying Loans, whichever of the standards in
this clause (i) is higher;
(ii) with a view to the timely collection of all scheduled payments of
principal of and interest on the Note Indebtedness and the Underlying Loans
or, if an Event of Default shall occur and be continuing and if, in the good
faith and reasonable judgment of the Servicer or Special Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on the Note Indebtedness and the
Underlying Loans to the Holders on a net present value basis; and
(iii) without regard to (A) any relationship that the Servicer or Special
Servicer or any affiliate thereof may have with the Issuer or any Affiliate
thereof; (B) the ownership of any Note by the Servicer or Special Servicer
or their affiliates; (C) the right of the Servicer or Special Servicer to
receive reimbursement of costs, or the sufficiency of any compensation
payable to it under the Indenture or with respect to any particular
transaction; or (D) the Servicer's or Special Servicer's ownership,
servicing or management for others of any other mortgage and mezzanine loans
or mortgaged property.
Subject to the above-described Servicing Standards and the terms of this
Indenture and of the other Security Documents, the Servicer and Special
Servicer shall have full power and authority to do or cause to be done any and
all things in connection with such servicing and administration which it may
deem necessary or desirable. The Servicer and Special Servicer shall service
and administer the Note Indebtedness and the Underlying Loans in accordance
with applicable state and federal law. At the written request of the Servicer
or Special Servicer,
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accompanied by the form of powers or other documents being requested and a
certificate that such power of attorney or document is necessary or appropriate
to enable the Servicer or Special Servicer to carry out its servicing and
administrative duties hereunder, the Trustee shall furnish to the Servicer or
Special Servicer, as applicable, any powers of attorney and other documents and
the Trustee shall not be held responsible for any acts by the Servicer or
Special Servicer in its uses of any such powers of attorney or other documents.
Notwithstanding anything contained herein to the contrary, neither the
Servicer, the Special Servicer nor the Issuer shall, without the Trustee's
written consent, (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating Servicer's or Special Servicer's, as
applicable, representative capacity or (ii) take any action with the intent to
cause, and which actually does cause, the Trustee to be registered to do
business in any state. Where the terms of the Mortgage, the Mezzanine Loan
Agreement or any other Security Document provide that the consent or approval
of the Issuer is required, then (unless otherwise provided therein) such
consent or approval shall be granted or withheld by the Servicer or Special
Servicer, as applicable on behalf of the Issuer in accordance with the
Servicing Standards.
SECTION 7.2 SUB-SERVICING AGREEMENTS.
Each of the Servicer or Special Servicer, at its own expense without a right
of reimbursement from the Issuer under this Indenture, may enter into
sub-servicing agreements with sub-servicers for the servicing and
administration of the Note Indebtedness and the Underlying Loans, PROVIDED that,
(i) the Issuer shall have consented in writing to the appointment of such
sub-servicer (which consent shall not be unreasonably withheld), unless (x)
such sub-servicer is a wholly owned subsidiary of the Servicer or Special
Servicer, as applicable, or (y) the Servicer or Special Servicer, as
applicable, has determined, in good faith, that the appointment of such
sub-servicer is necessary for the purpose of meeting any legal requirements
applicable to it in the performance of its duties hereunder (including any
legal requirements of any jurisdiction in which any of the Collateral is
located),
(ii) any such sub-servicing agreement (x) will be upon such terms and
conditions as are not inconsistent with this Indenture and as the Servicer
or Special Servicer, as applicable and the sub-servicer have agreed, and (y)
shall provide that in the event the Servicer or Special Servicer, as
applicable, has been removed as the Servicer or Special Servicer, as
applicable hereunder, the Trustee or any successor Servicer or Special
Servicer, as applicable, appointed pursuant hereto shall have the right to
terminate such sub-servicing agreement without cost or penalty on not more
than five days' written notice to the sub-servicer, and
(iii) no sub-servicer retained by the Servicer or Special Servicer shall
grant any modification, waiver, or amendment to the Security Documents
without the written approval of the Servicer or Special Servicer, as
applicable.
References in this Indenture to actions taken or to be taken, and
limitations on actions permitted to be taken, by the Servicer or Special
Servicer in servicing the Note Indebtedness and the Underlying Loan
Documentation include actions taken or to be taken by a sub-servicer on behalf
of the Servicer or Special Servicer, as applicable. Each sub-servicer shall be
(A) authorized to transact business in the applicable state(s), if, and
to the extent, required by applicable law to enable the sub-servicer to
perform its obligations hereunder and under the applicable sub-servicing
agreement, and
(B) qualified to service mortgage and mezzanine loans comparable to the
Note Indebtedness and the Underlying Loans.
For purposes of this Indenture, the Servicer or Special Servicer shall be
deemed to have received any amount when the sub-servicer receives such amount
and actions taken by the sub-servicer shall be deemed to be actions of the
Servicer or Special Servicer, as applicable. The Servicer or Special Servicer,
as applicable, shall
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notify the Trustee and the Issuer in writing promptly upon the appointment of
any sub-servicer and promptly furnish the Trustee and the Issuer with a copy of
the sub-servicing agreement. Each of the Servicer and the Special Servicer is
permitted to utilize agents and attorneys as is consistent with the Servicing
Standards in performing certain of its obligations under this Indenture and the
other Security Documents, each of which will be an expense reimbursable
pursuant to Section 7.11(a). Obligations of the Servicer or Special Servicer
which are an expense of the Issuer pursuant to the preceding sentence include,
but are not limited to, enforcement of the Mortgage and the Mezzanine Loan
Agreement and administration of releases, assumptions, modifications,
substitutions, bankruptcy claims and similar matters.
Notwithstanding any sub-servicing agreement the use of other agents and
attorneys, any of the provisions of this Indenture relating to agreements or
arrangements between the Servicer or Special Servicer, as applicable and a
sub-servicer or reference to actions taken through a sub-servicer other agents
or attorneys or otherwise, the Servicer or Special Servicer, as applicable
shall remain obligated and liable to the Trustee and the Holders for the
servicing and administering of the Note Indebtedness and the Underlying Loans
in accordance with the provisions of Section 7.1 without diminution of such
obligation or liability by virtue of such sub-servicing agreement or
arrangements or by virtue of indemnification from a sub-servicer and to the
same extent and under the same terms and conditions as if the Servicer or
Special Servicer alone were servicing and administering the Note Indebtedness
and the Underlying Loans.
SECTION 7.3 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Until the principal and interest on each Note is paid in full, the
Servicer (the Special Servicer during the occurrence and continuance of a Loan
Event) shall proceed diligently to collect all payments called for under the
terms and provisions of the Security Documents and this Indenture, and in doing
so the Servicer (the Special Servicer during the occurrence and continuance of
a Loan Event) shall follow such collection procedures as are in accordance with
the Servicing Standards. The foregoing responsibilities shall include, without
limitation, making, at the expense of the Issuer, timely filings of any Uniform
Commercial Code continuation statements and any refilings of any Security
Document as necessary to preserve the liens created thereby to the extent not
so done by the Issuer or the Underlying Borrowers as provided herein or in the
other Security Documents. The Servicer and Special Servicer each agree that it
will notify the Issuer and the Trustee (with a copy to the Servicer in the case
of the Special Servicer) in writing of any filings, fees, taxes or other
similar payments required in connection with the satisfaction of the
obligations of the Issuer or the Underlying Borrowers under this Indenture and
the other Security Documents known to any officer or employee of the Servicer
or Special Servicer actively involved in the administration of the Note
Indebtedness or the Underlying Loans.
(b) The Servicer (the Special Servicer during the occurrence and continuance
of a Loan Event) shall also give such directions, make such determinations and
take such other actions pursuant to the Mezzanine Cash Management Agreement and
the Cash Management Agreement as the assignee of the Mezzanine Lender or
Mortgage Lender, as applicable, thereunder, as are in the best interests of (as
determined by the Servicer or Special Servicer in its reasonable judgment) the
Holders and in accordance with the Servicing Standards.
(c) Upon an acceleration of the Notes pursuant to Section 5.2, subject to
the rights of the Majority Holders, set forth in Section 5.12(a), and subject
to Section 7.7 hereof, the Special Servicer may, unless the Event of Default
preceding such acceleration is an Event of Default occurring on the Maturity
Date, in which case the Special Servicer shall, initiate foreclosure
proceedings with respect to the Indenture Collateral and immediately thereafter
with respect to the Underlying Collateral; PROVIDED, HOWEVER, that the Special
Servicer will not convert ownership of any of the Underlying Collateral to the
Trustee or its nominee on behalf of the Holders unless and until the Special
Servicer has complied with the terms of this Indenture.
(d) Subject to the rights of the Majority Holders, described in Section
5.12(a), if prior to the Maturity Date an Event of Default has occurred and is
continuing or an Event of Default is reasonably foreseeable and the Special
Servicer determines in accordance with the Servicing Standards that a
modification, waiver or
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amendment of the terms of any Security Document either (i) is reasonably likely
to produce a greater recovery on a present value basis than liquidation of
Indenture Collateral and the Underlying Collateral or (ii) would not reasonably
be likely to adversely affect the timely receipt of payments under the Security
Documents, then the Special Servicer may, but is not required to, agree to a
modification, waiver, or amendment of any of the terms of the Security
Documents; PROVIDED, HOWEVER, notwithstanding the foregoing, that (1) the
action cannot reasonably be expected to result in an increase in the ratio of
(A) the then-outstanding aggregate principal balance of the Notes DIVIDED BY
(B) the most recent appraised value of the Underlying Collateral (net of any
prior liens); (2) the action cannot reasonably be expected to result in a
decrease in the Debt Service Coverage Ratio for the Underlying Collateral; (3)
the action complies with all applicable legal requirements, including without
limitation, all zoning, environmental and building laws, ordinances, and
regulations and any condition, easement, right-of-way, covenant or restriction
of record applicable to the Underlying Properties; (4) to the extent any
additional criteria are specified in the Security Documents for consent to a
specific action, such criteria have been satisfied in all material respects;
(5) the consent to such action is otherwise consistent with the Servicing
Standards; and (6) such action does not impair the rights or increase the
obligations of the Trustee, the Servicer or the Special Servicer; PROVIDED that
any such modification will be made in compliance with the terms of this
Indenture and any other applicable Security Document.
(e) Subject to the rights of the Majority Holders, described in Section
5.12(a) and subject to the terms of this Indenture, the Servicer (the Special
Servicer during a Loan Event) may enter into or grant the following
modifications, waivers or amendments of any Security Document without the
consent of any Holder of the Notes: (i) waivers of minor covenant defaults
(other than financial covenants), including late financial statements; (ii)
grants of easements that do not materially adversely affect the use, operation
or value of the Underlying Properties or the obligation of the Issuer or the
Underlying Borrowers to pay the Notes and the Underlying Loans, respectively;
and (iii) any other modifications, waivers or amendments which the Servicer
(the Special Servicer during a Loan Event) determines, in accordance with the
Servicing Standards, are of a routine nature and which are made in accordance
with the Servicing Standards; PROVIDED that the Servicer (the Special Servicer
during a Loan Event) has determined that (x) any such modification, waiver or
amendment described in this sentence would not in any way affect a payment term
of any Note or the Underlying Loans, and (y) agreeing to such modification,
waiver or amendment would be consistent with the Servicing Standards.
SECTION 7.4 PAYMENT OF TAXES AND OTHER CHARGES, ETC.
The Servicer shall maintain accurate records (i) with respect to the status
of Taxes and Other Charges required to be paid under the Mortgage and (ii) with
respect to the status of insurance premiums payable in respect of any of the
insurance policies required to be maintained by each of the Underlying
Borrowers under the Mortgage and the Mezzanine Loan Agreement. Except to the
extent the same are paid directly by the Servicer from sums on deposit in the
Mortgage Taxes and Insurance Sub Account pursuant to the Cash Management
Agreement, and the Mezzanine Expenses Sub Account pursuant to the Mezzanine
Cash Management Agreement, the Issuer shall supply to the Servicer evidence of
the payment of such amounts at least ten (10) Business Days prior to the
applicable penalty or termination dates. To the extent the Servicer has
obtained notice of any such Taxes and Other Charges that have not been paid by
the borrower under the Mortgage on or before the related penalty date and such
borrower is not contesting such items in accordance with the terms of the
Mortgage, the Servicer shall obtain all bills for the payment of such items and
shall instruct such borrower in writing to effect payment thereof prior to the
applicable penalty or termination date, PROVIDED that failure of the Servicer
to provide such instruction shall in no way limit the obligation of the
borrower under the Mortgage to timely pay such Taxes and Other Charges. To the
extent that the Servicer has obtained notice of any insurance premiums that are
required to be paid an have not been paid on or before the related termination
date, the Servicer shall obtain all bills for the payment of such premiums and
shall instruct the applicable Underlying Borrower in writing to effect payment
thereof (or to cause such payment to be effected) prior to the applicable
termination date, PROVIDED that failure of the Servicer to provide such
instruction shall in no way limit the obligation of the applicable Underlying
Borrower to timely pay such premiums.
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SECTION 7.5 MAINTENANCE OF INSURANCE AND ERRORS AND OMISSIONS AND FIDELITY
COVERAGE.
(a) The Servicer shall, in accordance with the Servicing Standards, use its
best efforts to cause the Underlying Borrowers to maintain for the Underlying
Properties all insurance required by the terms of the Mortgage and the
Mezzanine Loan Agreement in the amounts, with the terms and provisions, and
from the insurers set forth therein. In carrying out the foregoing, the
Servicer shall monitor the Underlying Borrowers' compliance with the Mortgage
and the Mezzanine Loan Agreement, as applicable, and shall advise the
Underlying Borrowers and the Issuer of any instance where the Servicer believes
that the Underlying Borrowers are no longer in compliance with such insurance
requirements. The Special Servicer shall also cause to be maintained on the
Underlying Properties (after foreclosure on the Underlying Collateral) all such
insurance, to the extent the same is then available at commercially reasonable
rates and maintaining such insurance would be in the interest of the Holders in
accordance with the Servicing Standards. The cost of any such insurance with
respect to an Underlying Property will be payable out of amounts on deposit in
the REO Property Account. Pursuant to Section 7.6, any amounts collected by the
Servicer or Special Servicer under any such policies (other than amounts to be
applied to the restoration or repair of the Underlying Properties or property
so acquired or amounts released to the applicable Underlying Borrower in
accordance with the terms of the Mortgage, the Mezzanine Loan Agreement, the
Cash Management Agreement, the Mezzanine Cash Management Agreement, or the
Servicing Standards) shall be deposited in accordance with the Cash Management
Agreement or the Mezzanine Cash Management Agreement, as applicable. Any costs
(including third party costs as described in Section 7.2) incurred by the
Servicer or Special Servicer pursuant to this Section shall be reimbursable to
the Servicer or Special Servicer pursuant to Section 7.6.
(b) The Servicer and Special Servicer shall obtain and maintain at its own
expense, and keep in full force and effect throughout the term of this
Indenture, a blanket fidelity bond and an errors and omissions insurance
policy, with the Trustee named as certificateholder or loss payee, as
applicable, from a provider that is rated at least Aa2 or an equivalent rating
by at least one NRSRO and covering the Servicer's and Special Servicer's
officers and employees in connection with its activities under this Indenture.
The amount of coverage shall be such as is commercially reasonable given the
Servicer's and Special Servicer's role hereunder and at least equal to the
coverage that is required by applicable governmental authorities having
regulatory power over the Servicer and Special Servicer. If no such coverage
amounts are imposed by such regulatory authorities, the amount of coverage
shall be at least equal to the coverage that would be required by FNMA or FHLMC
with respect to the Servicer or Special Servicer if the Servicer or Special
Servicer were servicing and administering the Note Indebtedness and the
Underlying Loans for FNMA or FHLMC. In the event that any such bond or policy
ceases to be in effect, the Servicer or Special Servicer shall obtain a
comparable replacement bond or policy. Coverage of the Servicer or Special
Servicer under a policy or bond obtained by an Affiliate of the Servicer or
Special Servicer and providing the coverage and continuing for the term
required by this Section 7.5 shall satisfy the requirements of this Section 7.5.
No provision of this Section 7.5 requiring such fidelity bond and errors and
omissions insurance shall diminish or relieve the Servicer or Special Servicer
from its duties and obligations as set forth in this Indenture. Promptly
following the Closing Date, the Servicer or Special Servicer shall deliver or
cause to be delivered to the Trustee a certificate of insurance from the
surety, insurer or insurance broker. The Servicer shall promptly provide notice
to the Trustee of any cancellation, termination, expiration, reduction in
amount of, or material change (other than an increase) in, coverage under any
such fidelity bond or policy of errors and omissions insurance.
(c) Any right of the Issuer to approve or withhold approval of adjustments
or settlements of claims under insurance policies described in the first
sentence of Section 7.5(a) shall be exercised by the Servicer.
SECTION 7.6 APPLICATION OF FUNDS IN EVENT OF DEFAULT.
(a) Upon the occurrence and continuation of an Event of Default, the Special
Servicer shall deposit, or cause to be deposited, in the applicable REO
Property Account within one (1) Business Day after receipt all
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revenues received from any Foreclosed Collateral and all other amounts received
by the Special Servicer or Servicer with respect to the Security Documents and
the Underlying Collateral. All funds in the REO Property Account, in excess of
the amount that, in the reasonable judgment of the Special Servicer, will be
required to defray costs relating to the Foreclosed Collateral which this
Indenture contemplates are payable from the REO Property Account, shall be
remitted to the Collection Account at or before 3:00 p.m. (New York time) two
Business Days prior to each Payment Date.
(b) Money held by the Servicer hereunder shall be held in trust for the
purposes for which it was paid, and shall be segregated from any other monies
held by the Servicer, and may be deposited by the Servicer or Special Servicer
under such general conditions as may be prescribed by law.
(c) Payments made with funds obtained by the Special Servicer by liquidating
any part of the Collateral shall not constitute a cure of a failure by the
Issuer to make a payment for purposes of Section 5.1 hereof unless the Event of
Default relating thereto is waived in accordance with Section 5.13.
SECTION 7.7 REALIZATION UPON THE UNDERLYING COLLATERAL.
(a) Upon the occurrence and during the continuance of an Event of Default
and acceleration of the maturity of the Notes pursuant to Section 5.2, and
subject to Sections 7.7(b) through (e), the Special Servicer may or if the
Issuer fails to pay the principal of and interest on any Notes on the Maturity
Date, the Special Servicer shall (i) exercise the remedies available under
Article V hereof, and under the Security Documents, including foreclosing on
all or some of the Collateral, to the extent determined appropriate by the
Special Servicer in accordance with the Servicing Standards and (ii) the
Special Servicer shall deliver such notices as may be required by any Leases to
the parties entitled thereto. Except in the case of rescission of acceleration
in accordance with Article V, to the extent the Special Servicer has determined
to foreclose all or some of the Collateral the Special Servicer shall liquidate
such Collateral and transfer the payments to the REO Property Account. In
addition, upon the occurrence and during the continuance of an Event of
Default, or an event which with the giving of notice or the passage of time
would become an Event of Default, the Special Servicer may obtain advice from
Persons with expertise in the field of distressed real estate, bankruptcy or
other relevant fields the cost of which shall be reimbursed from the REO
Property and until reimbursed shall constitute an Advance. Notwithstanding the
foregoing, the Special Servicer shall promptly commence foreclosure following
the Maturity Date unless prior to that time the term of the Note Indebtedness
has been extended with approval of the requisite Holders as described in
Section 7.3. Within sixty (60) days after the occurrence and during the
continuance of an Event of Default and acceleration of the Notes, the Special
Servicer shall prepare, or cause to be prepared, a liquidation plan for the
Collateral and shall deliver a copy of such plan to the Trustee for
distribution to each Holder. Nothing in such plan shall conflict with or alter
in any way any of the obligations of the parties to this Indenture. Such
liquidation plan shall be deemed approved by the Holders unless, within sixty
(60) days after its delivery, the Majority Holders object by writings filed
with the Trustee to such liquidation plan. If the Majority Holders (but not the
holders of 100% in aggregate principal amount of the Notes then Outstanding)
have objected in writing within such 60-day period, subject to Section 7.7(c),
the Special Servicer may take action pursuant to such liquidation plan if it
has determined such action to be consistent with the Servicing Standards. If
Holders of 100% in aggregate principal amount of the Notes then Outstanding
have objected in writing within such 60-day period, the Special Servicer shall
not take action in accordance with such liquidation plan subject, however, to
its right to propose a new liquidation plan to Holders for approval in
accordance with the foregoing procedure. In connection with such foreclosure or
other conversion, the Special Servicer shall follow such practices and
procedures as it shall deem necessary or advisable and as shall be consistent
with the Servicing Standards. At the time the Special Servicer on behalf of the
Trustee for the benefit of the Holders takes possession of part or all of the
Underlying Collateral by foreclosure or otherwise, the Special Servicer may,
but shall have no obligation whatsoever to, pay the cost of any capital
improvements to the Underlying Properties, as applicable, if the Special
Servicer determines that such expenditures are advisable to protect or, enhance
the value of the Underlying Properties and are in the best interests of the
Holders, and any such payment by the Special Servicer shall constitute an
Advance hereunder.
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(b) Notwithstanding Sections 5.12(a) and 7.7(a), the Special Servicer may,
if it believes it to be in the best economic interest of the Holders of Notes,
and shall, if in its reasonable judgment the amount it estimates would be
realized as Net Liquidation Proceeds, assuming a liquidation of the Collateral
at a price based on the most recent Appraisal of the Underlying Properties, are
less than the present value, applying a discount rate equal to the Base
Interest Rate, of the expected Net Cash Flow from the Collateral through the
remaining term of the Notes, forebear from foreclosing on the Collateral and,
instead, collect all sums available under the terms of the Cash Management
Agreement and the Mezzanine Cash Management Agreement to be applied in
accordance with the terms of such agreements and this Indenture. Any
determination to forebear pursuant to this Section 7.7(b) shall be reevaluated
every twelve (12) months based on a new determination by the Special Servicer
of the estimated Net Liquidation Proceeds and the expected Net Cash Flow from
the Collateral. If a forebearance has been in effect for more than twenty-four
(24) consecutive months, the Majority Holders may direct the Special Servicer
to terminate such forebearance and to initiate foreclosure proceedings with
respect to the Collateral.
(c) Notwithstanding Section 7.7(a), the Special Servicer shall not, on
behalf of the Trustee, obtain title to part or all of the Underlying Collateral
as a result or in lieu of foreclosure or otherwise, and shall not otherwise
acquire possession of, or take other action with respect to any of the
Underlying Collateral, if as a result of any such action, the Special Servicer
or the Trustee would be considered to hold title to, be a
"mortgagee-in-possession" of, or be an "owner" or "operator" of any of the
Underlying Properties within the meaning of CERCLA or any applicable comparable
federal, state or local law, or a "discharger" or "responsible party"
thereunder unless the Special Servicer has also previously determined, based on
an environmental report prepared at the direction of the Special Servicer by a
Person having the qualifications set forth in Section 7.7(d) (a copy of which
report shall have been delivered to the Trustee), that the relevant Underlying
Property does not contain any condition identified in Section 501.04 (or any
successor provision) of Part II of the Xxxxxx Xxx Multifamily Guide, or that,
if any such condition exists, taking such actions as are necessary to bring the
relevant Underlying Property into compliance with applicable Environmental
Laws, or taking such actions as are necessary to contain, clean-up, remove or
remediate Hazardous Materials affecting the relevant Underlying Property is
reasonably likely to produce a greater recovery on a present value basis than
not taking such actions.
Subject to the rights of the Majority Holders pursuant to Section 5.12(a),
if the Special Servicer has so determined based on satisfaction of the criteria
in this Section 7.7(c) that it would be in the best economic interest of the
Holders to take any such actions and foreclose or otherwise acquire possession
of any of the Underlying Collateral, and is otherwise consistent with the
Servicing Standards, the Special Servicer shall notify the Trustee in writing
setting forth in reasonable detail the reasons for its determination, and the
Trustee, in turn, shall send a copy of the related environmental report and
notification to the Holders notifying them of their right to object to such
proposed action. Such proposed action shall be taken unless the Trustee (i)
shall have received and delivered to the Special Servicer, within thirty (30)
days after such notification from the Special Servicer, written instructions
from the Majority Holders directing it not to take such action; PROVIDED,
HOWEVER, that the Special Servicer shall not be required to take any action or
refrain from taking any action that would cause it to violate the Servicing
Standards; or (ii) has given the Special Servicer similar written instructions
based upon the Trustee's reasonable opinion that there would be a likelihood of
the Trustee's individual liability resulting from such action against which it
would not be indemnified hereunder.
(d) Any environmental report contemplated by Section 7.7(c) shall be
prepared by any Independent Person who regularly conducts environmental site
assessments for purchasers of comparable properties, as determined by the
Special Servicer in a manner consistent with the Servicing Standards. The cost
of preparation of any environmental site assessment shall be reimbursed from
the REO Property Account and until reimbursed shall constitute an Advance.
(e) If the Special Servicer determines, pursuant to Section 7.7(c), that
taking such actions as are necessary to bring any of the Underlying Properties
into compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, clean-up, removal or remediation of Hazardous
Substances affecting any of the Underlying Properties is not reasonably likely
to produce a greater recovery on a present value basis than
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not taking such actions, the Special Servicer shall notify the Trustee in
writing setting forth in reasonable detail the reasons for its determination
and any action which it determines to take, and the Trustee, in turn, shall
send a copy of such notification to the Holders notifying them of their right
to give contrary direction. The Special Servicer shall take such alternative
action as it deems to be in the best economic interests of the Holders,
consistent with the Servicing Standards including, without limitation,
releasing the lien of the Mortgage Security Documents or the Mezzanine Security
Documents with respect to the relevant Underlying Collateral unless the Trustee
has received and delivered to the Special Servicer within thirty (30) days
after such notification from the Special Servicer, contrary directions from the
Majority Holders; PROVIDED, HOWEVER, that the Special Servicer shall not be
required to take any action or refrain from taking any action that would cause
it to violate the Servicing Standards unless so directed by Holders of not less
than 100% in aggregate principal amount of Outstanding Notes. Neither the
Trustee nor the Special Servicer shall be obligated to take any action, or
refrain from taking any action at the direction of Holders pursuant to this
Section 7.7(e) unless the Holders offer to the Trustee or the Special Servicer,
as the case may be, security or indemnification satisfactory to the Trustee or
the Special Servicer against the costs, expenses and liabilities that may be
incurred with respect to such actions or inaction.
SECTION 7.8 TRUSTEE TO COOPERATE; RELEASE OF ORIGINAL SECURITY DOCUMENTS.
From time to time and as appropriate for the servicing or foreclosure of the
Note Indebtedness, the Underlying Loans, and the Collateral, the Trustee shall,
upon written request of the Servicer or Special Servicer and delivery to the
Trustee of a trust receipt in the form of Exhibit D hereto, release or cause to
be released originals of any Security Documents being held by it to the
Servicer or Special Servicer and shall execute such documents furnished to it
as shall, according to an Officer's Certificate of the Servicer, be necessary
to the prosecution of any such proceedings. The Servicer or Special Servicer
shall promptly return such items to the Trustee (or the Custodian) when the
need therefor by the Servicer or Special Servicer no longer exists.
SECTION 7.9 TITLE AND MANAGEMENT OF FORECLOSED COLLATERAL.
(a) In the event that title to any of the Underlying Collateral is acquired
by the Special Servicer for the benefit of the Holders in foreclosure or by
deed-in-lieu of foreclosure or otherwise, the deed, certificate of sale,
assignment or other instrument of conveyance shall be taken in the name of the
Trustee, or its nominee, on behalf of the Holders or as otherwise contemplated
pursuant to Section 6.19. To the extent that it determines a sale of any such
Foreclosed Collateral to be in the best economic interest of the Holders, the
Special Servicer, on behalf of the Holders, shall sell such Foreclosed
Collateral as expeditiously as possible in accordance with the provisions of
Section 7.10. Subject to Section 7.9(d), the Special Servicer shall retain the
entity or entities that were acting as the Property Manager with respect to the
related Underlying Property immediately prior to the Event of Default, or such
other property managers as the Special Servicer shall deem appropriate (the
"MANAGER"), to provide property management services at the relevant property.
In connection with such management, the property manager selected by the
Special Servicer shall be entitled to the related Management Fees from the
Collateral, and such fees shall be payable in accordance with Section 7.9.
(b) The Special Servicer and the Manager shall segregate and hold all funds
collected and received in connection with the operation of any Foreclosed
Collateral separate and apart from their own funds and general assets and shall
deposit all such funds collected and received in connection with the operation
of any such property in the REO Property Account.
(c) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Indenture and Servicing
Standards, to do any and all things in connection with any of the Foreclosed
Collateral for the benefit of the Holders on such terms and for such period as
the Special Servicer deems to be in the best interests of the Holders and as
consistent with the Servicing Standards. In connection therewith, the Special
Servicer shall require the Manager to deposit or cause to be deposited within
one (1) Business Day after receipt in the REO Property Account all revenues
received with respect to all Foreclosed
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Collateral. To the extent such funds are available therefor, the Special
Servicer shall withdraw from the REO Property Account funds necessary for the
proper operation, management and maintenance of the relevant Underlying
Properties, including, but not limited to:
(i) all insurance premiums due and payable in respect of such property;
(ii) all taxes or other charges in respect of such property that could
result or have resulted in the imposition of a lien thereon;
(iii) all amounts that are due and payable under any Leases or operating
agreements affecting such property; and
(iv) all costs and expenses necessary to preserve such property
including, but not limited to payment of Management Fees to the related
Manager.
(d) In the event that any Underlying Collateral becomes Foreclosed
Collateral, the Special Servicer, in the name of the Trustee on behalf of the
Holders, shall contract with any Manager for the operation and management of
the relevant Underlying Properties, PROVIDED that no such contract shall impose
individual liability on the Trustee, the Special Servicer or the Holders; and
PROVIDED, FURTHER, that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith (including those set forth in the definition of
Management Fee);
(ii) any such contract shall require, or shall be administered to
require, that the Manager (A) pay from revenues of any such Underlying
Properties all costs and expenses incurred in connection with the operation
and management of such property, and (B) remit all related revenues, net of
such costs and expenses, to the Special Servicer for deposit to the REO
Property Account as soon as practicable but in no event later than the
Business Day immediately following receipt; and
(iii) none of the provisions of this Section 7.9 relating to any such
contract or to actions taken by any such Manager shall be deemed to relieve
the Special Servicer of any of its duties and obligations to the Trustee on
behalf of the Holders with respect to the asset management of such property.
(e) The Special Servicer in the name of the Trustee on behalf of the Holders
shall be entitled to enter into any agreement with any Manager related to its
duties and obligations hereunder for indemnification of the Special Servicer by
such Manager, and nothing in this Indenture shall be deemed to limit or modify
such indemnification. The Special Servicer agrees to monitor the performance of
the Manager and to enforce the obligations of the Manager on behalf of the
Trustee in accordance with the Servicing Standards. Expenses incurred by the
Special Servicer in connection herewith shall be reimbursed from the REO
Account and, until reimbursed, shall constitute Advances. The Special Servicer
shall not serve as Manager, but shall be obligated with respect to any
management contract with the Manager to monitor and act to ensure the Manager's
compliance with its obligations thereunder to the same extent as if the Special
Servicer alone were performing all duties and obligations in connection with
the operation and management of the relevant Underlying Properties.
SECTION 7.10 SALE OF FORECLOSED COLLATERAL.
(a) Promptly after the acquisition of a Foreclosed Collateral by the Special
Servicer in the name of and on behalf of the Trustee, the Special Servicer
shall on behalf of the Trustee obtain a full narrative Appraisal of the related
Underlying Properties (unless there exists and is available to the Special
Servicer a full narrative Appraisal of the relevant properties performed within
the last twelve (12) months and the Special Servicer is not aware of any
circumstance that would materially and adversely affect the value of such
properties as set forth in such appraisal), the cost of which shall be
reimbursed from the REO Property Account and until reimbursed shall constitute
an Advance in order to determine the fair market value of such properties and
shall provide copies of such appraisal to the Trustee and the Issuer. The
Special Servicer may offer to sell to any Person all or part of the Foreclosed
Collateral, if and when the Special Servicer determines, consistent with the
Servicing Standards, that
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such a sale would be in the best economic interests of the Holders. The Special
Servicer shall give the Trustee not less than five (5) days' prior written
notice of its intention to sell any Foreclosed Collateral and shall accept the
highest cash offer received from any Person (which Person shall certify in its
offer as to whether it is an Interested Person) for the Foreclosed Collateral
that is not less than the fair market value of the Foreclosed Collateral based
on the most recent full narrative Appraisal of the related Underlying
Properties. In the absence of any such offer, the Special Servicer shall offer
the Foreclosed Collateral for sale to any Person other than an Interested
Person, in a commercially reasonable manner for a period of not less than
thirty (30) days nor more than such period as shall be determined by the
Special Servicer in accordance with the Servicing Standards, and shall accept
the highest cash offer received therefor in excess of the highest cash offer
previously submitted. If no such offer is received, any Interested Person may
submit an offer for no less than the fair market value of the Foreclosed
Collateral based on the most recent full narrative Appraisal of the related
Underlying Properties and the Special Servicer shall accept the highest
outstanding cash offer, regardless of from whom received and regardless of its
amount. No Interested Person shall be obligated to submit an offer to purchase
any Foreclosed Collateral, and notwithstanding anything to the contrary herein,
neither the Trustee in its individual capacity nor any of its Affiliates may
offer to purchase or purchase any Foreclosed Collateral.
(b) Subject to the provisions of Section 7.9, the Special Servicer shall act
on behalf of the Trustee for the benefit of the Holders in negotiating and
taking any other action necessary or appropriate in connection with the sale of
the Foreclosed Properties, including the collection of all amounts payable in
connection therewith. Any sale of a Foreclosed Collateral shall be without
warranty by, or recourse to, the Trustee, the Issuer, the Servicer, the Special
Servicer, the Holders or any other Person (except for such warranties of title
and condition as may be customary under the circumstances of any such sale)
and, if consummated in accordance with the provisions of this Section 7.10,
neither the Trustee, the Issuer, the Servicer nor the Special Servicer shall
have any liability to any Holder with respect to the purchase price thereof
accepted by the Special Servicer or the Trustee.
(c) The proceeds of any sale effected pursuant to Section 7.10(a), after
deduction of the expenses incurred in connection therewith, shall be deposited
in the REO Property Account in accordance with Section 7.6.
(d) Notwithstanding anything to the contrary in this Section 7.10, the
Special Servicer shall not accept an offer for or conclude a sale of any
Foreclosed Collateral if it determines, in accordance with the Servicing
Standards, that such offer or sale is not in the best economic interest of the
Holders.
SECTION 7.11 SERVICING COMPENSATION.
(a) The Servicer shall be entitled to receive as servicing compensation its
Servicing Fee, and after the occurrence of a Loan Event and while such Loan
Event is continuing, the Special Servicer shall be entitled to receive as
servicing compensation its Special Servicing Fee. In addition, each of the
Servicer and Special Servicer shall be entitled to reimbursement for all other
costs or expenses incurred directly by it in the performance of its duties
hereunder other than: (i) fees and expenses of any sub-servicer unless such
expenses, if incurred by the Servicer or Special Servicer, would be
reimbursable to the Servicer or Special Servicer; (ii) the cost of any fidelity
bond or errors and omissions policy required by Section 7.5(b); (iii) overhead
expenses of the Servicer and Special Servicer including but not limited to
those which may properly be allocable under the Servicer's or Special
Servicer's accounting system or otherwise to the Servicer's or Special
Servicer's activities under this Indenture or the income derived by it
hereunder including the costs to Servicer or Special Servicer associated with
employees of the Servicer or Special Servicer performing services in connection
with the obligations of the Servicer or Special Servicer hereunder; and (iv)
costs and expenses arising from the negligence or willful misconduct of the
Servicer or Special Servicer. If a Loan Event ceases following resolution of
such Loan Event by a written agreement negotiated by the Special Servicer, the
Special Servicer shall be entitled to a Work-Out Fee, PROVIDED, HOWEVER, that
the Work-Out Fees payable to the Special Servicer under this Indenture shall
not exceed $100,000 for each Loan Event that is terminated pursuant to a
written agreement negotiated by the Special Servicer; PROVIDED, FURTHER, that
in the event of a Loan Event pursuant to clause (i) or (ii) of the definition
of Loan Event that the Special Servicer has resolved by a written agreement
negotiated by it and that it
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would have earned a Work-Out Fee but solely for the passage of time after such
written agreement had been entered into and is then terminated pursuant to the
terms of this Indenture prior to the cessation of such Loan Event, whether or
not for cause, such terminated Special Servicer shall be entitled to receive
such Work-Out Fee after its termination and the successor Special Servicer
shall have no rights with respect to such Work-Out Fee. In addition, the
Special Servicer shall be entitled to receive a Liquidation Fee with respect to
the Liquidated Collateral as to which the Special Servicer receives Net
Liquidation Proceeds; provided that the aggregate amount of all Liquidation
Fees payable hereunder shall not exceed $100,000. The Liquidation Fee will be
payable from the related Net Liquidation Proceeds.
(b) No transfer, sale, pledge or other disposition of the Servicer's or
Special Servicer's right to receive all or any portion of the fees payable to
the Servicer or Special Servicer hereunder shall be made, and any such
attempted transfer, sale, pledge or other disposition shall be void, unless
such transfer is made to a successor servicer in connection with the assumption
by such successor servicer of the duties hereunder pursuant to Section 7.22 or
7.27(a) and all (and not a portion) such fees are transferred to such successor
servicer from and after the date of transfer (subject to Section 7.11(a)).
(c) In connection with any discharge of this Indenture pursuant to Section
4.2 prior to the first anniversary of the Closing Date, the Servicer shall be
entitled to receive from the Issuer prior to such discharge a Termination Fee.
SECTION 7.12 REPORTS TO THE TRUSTEE.
The Servicer or the Special Servicer, as applicable, shall furnish the
Trustee with a Payment Date Statement at or before 3:00 p.m. (New York time) on
the third Business Day immediately preceding any Payment Date.
After an Event of Default, the Servicer and Special Servicer shall (i)
furnish to the Trustee or its designee the originals of all agreements entered
into by the Servicer or Special Servicer, as applicable in the name of the
Trustee pursuant to this Indenture, (ii) advise the Trustee in writing of any
event or circumstance materially affecting the Collateral or the interests of
the Holders therein coming to the attention of any Servicing Officer of the
Servicer or Special Servicer in connection or as a result of the fulfillment by
the Servicer or Special Servicer, as applicable of its obligations under this
Indenture, and (iii) furnish, and cause any Manager to furnish, to the Trustee
or its designee such other reports with respect to the Underlying Properties,
their condition, tenants, and the income resulting therefrom as the Trustee or
its designee may reasonably request in writing.
SECTION 7.13 ANNUAL STATEMENT AS TO COMPLIANCE.
Each of the Servicer and the Special Servicer shall deliver to the Trustee
and the Issuer on April 30 of each year (or if such day is not a Business Day,
on the next succeeding Business Day), beginning April 30, 2003, an officer's
certificate stating as to each xxxxxx thereof, (a) that a review of the
activities of the Servicer or Special Servicer, as applicable during the
preceding calendar year (or since the Closing Date in the case of the first
such officer's certificate) and of performance under this Indenture has been
made under such officer's supervision and (b) that to the best of such
officer's knowledge, based on such review, the Servicer or Special Servicer, as
applicable, has fulfilled all of its obligations under this Indenture in all
material respects throughout such period, or if there has been a default in the
fulfillment of any such obligation, specifying each such default known to such
officer and the nature and status thereof.
SECTION 7.14 ACCESS TO CERTAIN DOCUMENTATION REGARDING THE NOTE
INDEBTEDNESS.
Upon reasonable advance notice, the Servicer or Special Servicer, as
applicable shall provide the Trustee with reasonable access during its normal
business hours at its offices to any information in its possession relating to
its servicing of the Note Indebtedness or the Underlying Loans.
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SECTION 7.15 INSPECTIONS.
The Servicer (or after the occurrence and during the continuance of a Loan
Event or with respect to any of the Collateral becoming Foreclosed Collateral,
the Special Servicer) shall, at its expense, inspect or cause to be inspected
the relevant Underlying Properties at least once each calendar year and furnish
to the Trustee upon its request a written report in electronic or hard copy
format of the results of any inspection required hereunder. If the Issuer fails
to pay any sums due under any Note on or before its due date and such failure
is not remedied within five days, or if an inspection is otherwise warranted in
accordance with the Servicing Standards, the Servicer or Special Servicer, as
applicable shall inspect the relevant Underlying Properties (or such of them as
the Servicer or Special Servicer, as applicable deems appropriate) within 30
days of the relevant event (or as soon thereafter as is practicable). The cost
of inspecting the Underlying Properties more than once per year shall be paid
by the Issuer upon written request by the Servicer or Special Servicer, as
applicable, therefor explaining in reasonable detail the basis for such costs.
If an Event of Default shall have occurred and be continuing, the costs of
inspecting the Underlying Properties more than once per year shall be
reimbursed from the REO Property Account and until reimbursed shall constitute
an Advance.
SECTION 7.16 ADVANCES.
(a) In any circumstance in which the Issuer has the right under the Mortgage
or the Mezzanine Loan Agreement to make an advance to or for the benefit of an
Underlying Borrower (including for the payment of real estate taxes or
insurance premiums with respect to an Underlying Property), each of the
Servicer or Special Servicer may, at its sole discretion, make an advance (an
"ADVANCE") to the Issuer, and the Issuer shall apply any such Advance to the
making of an advance in the same amount to or for the benefit of the relevant
Underlying Borrower under the Mortgage or the Mezzanine Loan Agreement, as
applicable. The term "Advance" shall also include other amounts advanced to the
Issuer hereunder and designated herein as Advances, it being understood that,
notwithstanding anything to the contrary herein, neither the Servicer nor the
Special Servicer shall have any obligation to make any Advance or to make any
disbursement that would constitute an Advance.
(b) Interest on each Advance will compound annually and accrue for each day
that such Advance is outstanding at a rate of interest equal to the greater of
the Base Interest Rate and the Prime Rate (such greater rate, the "ADVANCE
INTEREST RATE") as most recently available for such day on the basis of a year
of 360 days and the actual number of days elapsed during the period such
Advance is outstanding. The Servicer or the Special Servicer will be entitled
to recover interest payable on Advances as set forth in Section 5.6, to the
extent not otherwise recovered or reimbursed pursuant to the Cash Management
Agreement or the Mezzanine Cash Management Agreement.
(c) The determination by the Servicer or the Special Servicer that it has
made a Nonrecoverable Advance or that any proposed Advance, if made, would
constitute a Nonrecoverable Advance, shall be evidenced by a certificate of a
Servicing Officer, delivered on or before the fifth Business Day after
determination that an Advance would be a Nonrecoverable Advance, to the
Servicer, Trustee and Issuer (in the case of the Special Servicer) or Trustee
and the Issuer (in the case of the Servicer), and detailing the reasons for
such determination, which in each case shall be accompanied by copies of any
engineers' reports, environmental surveys, other third party reports or other
information relevant thereto that were used by the Servicer or Special Servicer
to support its determination that the Advance is non-recoverable. The costs of
any such reports, surveys or other information used by the Servicer or Special
Servicer in making the determination that an Advance is or would be a
Nonrecoverable Advance shall be an expense of the Holders or shall constitute
an Advance if paid by the Servicer or Special Servicer.
(d) All Advances shall be repaid in the order in which originally advanced,
and Advances owed to any prior Servicer or Special Servicer shall be repaid in
full, with interest, prior to the repayment of Advances made by the successor
Servicer or Special Servicer.
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SECTION 7.17 APPOINTMENT OF SPECIAL SERVICER.
(a) Archon Group, L.P. is hereby appointed as the initial Special Servicer
to service the Note Indebtedness and the Underlying Loans after the occurrence
and during the continuance of a Loan Event.
(b) Neither the Servicer nor the Trustee shall be liable for any actions or
any inaction of the Special Servicer. Any termination fee payable to a
terminated Special Servicer by the Majority Holders (and it is acknowledged
that there is no such fee payable in the event of a termination of Archon
Group, L.P. as Special Servicer or in the event of a termination for breach of
this Agreement) shall be paid by the Holders so terminating the Special
Servicer.
(c) No termination of the Special Servicer and appointment of a successor
special servicer shall be effective until the successor special servicer has
assumed all of its responsibilities, duties and liabilities hereunder pursuant
to a writing satisfactory to the Trustee. Any successor special servicer shall
make the representations and warranties provided for in Section 7.29 MUTATIS
MUTANDIS.
SECTION 7.18 TRANSFER OF SERVICING BETWEEN SERVICER AND SPECIAL SERVICER;
RECORD KEEPING.
(a) Upon the occurrence of a Loan Event, the Servicer shall promptly give
notice thereof to the Special Servicer and the Trustee and shall use its
reasonable best efforts to provide the Special Servicer with all information,
documents (but excluding the original documents constituting the Security
Documents) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to the Note Indebtedness and the
Underlying Loans either in the Servicer's or any of its directors', officers',
employees', affiliates' or agents' possession or control or otherwise available
to the Servicer without undue burden or expense, and reasonably requested by
the Special Servicer to enable it to assume its duties hereunder with respect
thereto without acting through a sub-servicer. The Servicer shall use its
reasonable best efforts to comply with the preceding sentence within five
Business Days of the date of the occurrence of a Loan Event and in any event
shall continue to act as Servicer and administrator of the Note Indebtedness
and the Underlying Loans until the Special Servicer has commenced the servicing
of the Note Indebtedness and the Underlying Loans, which shall occur upon the
receipt by the Special Servicer of the information, documents and records
referred to in the preceding sentence. After the occurrence of a Loan Event,
the Servicer shall instruct the Underlying Borrowers to continue to remit all
payments in respect of the Underlying Loans to the Servicer. The Servicer or
Special Servicer, as applicable, may agree that, notwithstanding the preceding
sentence, after the occurrence of a Loan Event, the Servicer shall instruct the
Underlying Borrowers to remit all payments in respect of the Underlying Loans
to the Special Servicer, PROVIDED that the payee in respect of such payments
shall remain the Servicer. The Special Servicer shall remit to the Servicer any
such payments received by it pursuant to the preceding sentence within one
Business Day of receipt. The Servicer shall forward any notices it would
otherwise send to the Underlying Borrowers or the Issuer to the Special
Servicer who shall send such notices to the Underlying Borrowers or the Issuer.
Upon determining that a Loan Event is no longer continuing, the Special
Servicer shall immediately give notice thereof to the Servicer and the Trustee,
and upon giving such notice, the Special Servicer's obligation to service the
Note Indebtedness and the Underlying Loans shall terminate and the obligations
of the Servicer to service and administer the Note Indebtedness and the
Underlying Loans shall resume. In addition, if the Underlying Borrowers have
been instructed, pursuant to the last sentence of the preceding paragraph, to
make payments to the Special Servicer, upon such determination, the Special
Servicer shall instruct the Underlying Borrowers to remit all payments in
respect of such directly to the Servicer.
(b) The Special Servicer shall provide to the Trustee originals of documents
(to the extent such documents are in the possession of the Special Servicer)
and copies of any additional documents related to the Note Indebtedness or the
Underlying Loans information, including correspondence with the Issuer and the
Underlying Borrowers, and the Special Servicer shall promptly provide copies of
all of the foregoing to the Servicer as well as copies of any analysis or
internal review prepared by or for the benefit of the Special Servicer.
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(c) After the occurrence and during the continuance of a Loan Event, and not
later than 11:00 a.m. New York time on the Business Day preceding each date on
which the Servicer is required to furnish a report under Section 7.12 to the
Trustee, the Special Servicer shall deliver to the Servicer, with a copy to the
Trustee, a written statement describing, (i) the amount of all payments on
account of interest received on the Note Indebtedness and the Underlying Loans,
the amount of all payments on account of principal, on the Note Indebtedness
and the Underlying Loans, the amount of Insurance Proceeds and Net Liquidation
Proceeds received with respect to the Note Indebtedness and the Underlying
Loans and (ii) such additional information relating to the Note Indebtedness
and the Underlying Loans as the Servicer or Trustee reasonably requests to
enable it to perform its duties under this Indenture including but not limited
to files and reports in formats approved by the Commercial Mortgage Securities
Association or any successor organization which are customarily delivered by
special servicers in commercial mortgage-backed securitization transactions.
(d) Notwithstanding the provisions of the preceding subsection (c), the
Servicer shall maintain ongoing payment records with respect to the Note
Indebtedness and the Underlying Loans and shall provide the Special Servicer
with any information reasonably required by a the Special Servicer to perform
its duties under this Indenture. The Special Servicer shall provide the
Servicer with any information reasonably required by the Servicer to perform
its duties under this Indenture.
(e) The Servicer shall maintain all records with respect to the Note
Indebtedness and the Underlying Loans if the Underlying Loans or the Note
Indebtedness is defeased and/or prepaid.
SECTION 7.19 RIGHTS OF THE ISSUER WITH RESPECT TO THE SERVICER.
The Servicer and Special Servicer shall afford the Issuer, upon reasonable
notice, during normal business hours access to all records regarding payments
made with respect to the Note Indebtedness and the Notes, including those in
electronic form, maintained by the Servicer or Special Servicer as required
hereunder and access to Servicing Officers of the Servicer or Special Servicer
responsible for such records. Upon request, the Servicer or Special Servicer
shall furnish the Issuer with the most recent publicly available financial
statements of Servicer (or its corporate parent) or Special Servicer (or its
corporate parent). The Issuer shall not have any responsibility or liability
for any action or failure to act by the Servicer or Special Servicer and is not
obligated to supervise the performance of the Servicer or Special Servicer
under this Indenture or otherwise.
SECTION 7.20 LIMITATION ON THE LIABILITY OF THE SERVICER AND OTHERS.
(a) None of the Servicer, the Special Servicer, nor any of their respective
directors, officers, employees, Affiliates or agents shall be under any
liability to the Trustee or the Holders for any action taken or for refraining
from the taking of any action in good faith pursuant to this Indenture, or for
errors in judgment; PROVIDED, HOWEVER, that this provision shall not protect
the Servicer, the Special Servicer or any such other Person against any breach
of warranties or representations made herein by the Servicer or Special
Servicer, as applicable, or any liability which would otherwise be imposed by
reason of willful misconduct, bad faith or negligence in the performance of the
Servicer's or Special Servicer's, as applicable duties or by reason of
negligent disregard of the Servicer's or Special Servicer's, as applicable,
obligations and duties hereunder. The Servicer, the Special Servicer and any of
their respective directors, officers, employees, Affiliates or agents may rely
in good faith on any document of any kind PRIMA FACIE properly executed and
submitted by any Person respecting any matters arising hereunder. The Servicer,
the Special Servicer, and any of their respective directors, officers,
employees or agents (each, a "SERVICER INDEMNIFIED PARTY" and, collectively,
the "SERVICER INDEMNIFIED PARTIES") shall be indemnified by the Issuer and held
harmless against any loss, liability, claim, demand or expense relating to this
Indenture, the Note Indebtedness, the Underlying Loans, the Collateral, or the
Security Documents, other than any loss, liability or expense incurred by
reason of willful misconduct, bad faith or negligence in the performance by the
Servicer or Special Servicer, as applicable, of its duties hereunder or by
reason of negligent disregard of the Servicer or Special Servicer, as
applicable, of its obligations and duties hereunder; PROVIDED, HOWEVER, that if
it is found that any such claim or liability has resulted from the bad faith,
willful misconduct or negligence of the
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Servicer or Special Servicer, as applicable, in the performance by the Servicer
or Special Servicer, as applicable, of its duties hereunder, such Servicer
Indemnified Party shall repay such portion of the reimbursed amounts that is
attributable to expenses incurred in relation to its act or omission which is
the subject of such finding. If any Servicer Indemnified Party is entitled to
receive indemnification hereunder with respect to any such action or proceeding
brought by a third party, the Issuer shall be entitled to assume the defense of
any such action or proceeding with counsel reasonably satisfactory to such
Servicer Indemnified Party who shall not, except with the consent of such
Servicer Indemnified Party, be counsel to the Issuer. Upon assumption by the
Issuer of the defense of any such action or proceeding, such Servicer
Indemnified Party shall have the right to participate in such action or
proceeding and to retain its own counsel, but the Issuer shall not be liable
for any legal fees or expenses subsequently incurred by such Servicer
Indemnified Party in connection with the defense thereof unless (i) the Issuer
has agreed to pay such fees and expenses or (ii) counsel provided by the Issuer
pursuant to the foregoing is counsel to the Issuer and such Servicer
Indemnified Party shall have been advised by such counsel that representation
of such Servicer Indemnified Party by such counsel provided by the Issuer
pursuant to the foregoing would be inappropriate due to actual or potential
conflicting interests between the Issuer and such Servicer Indemnified Party,
including situations in which there are one or more legal defenses available to
such Servicer Indemnified Party that are different from or additional to those
available to the Issuer; PROVIDED, HOWEVER, that the Issuer shall not, in
connection with any such action or proceeding, or separate but substantially
similar actions or proceedings arising out of the same general allegations, be
liable for the fees and expenses of more than one separate firm of attorneys at
any time, in addition to any local counsel, for all such Servicer Indemnified
Parties. The Issuer shall not consent to the terms of any compromise or
settlement of any action defended by the Issuer in accordance with the
foregoing without the prior consent of the Servicer Indemnified Party. The
Issuer shall not be required to indemnify any Servicer Indemnified Party for
any amount paid or payable by such Servicer Indemnified Party in settlement of
any action, proceeding or investigation without the prior written consent of
the Issuer, which consent shall not be unreasonably withheld. Promptly after
receipt by any Servicer Indemnified Party of notice of its involvement (or the
involvement of any of its affiliates or such affiliate's directors, officers,
shareholders, agents or employees) in any action, proceeding or investigation,
such Servicer Indemnified Party shall, if a claim for indemnification in
respect thereof is to be made against the Issuer hereunder, notify the Issuer
in writing of such involvement, but the failure of such Servicer Indemnified
Party to provide such notice shall neither cause the forfeiture of the right to
receive indemnity hereunder nor limit such right, except to the extent, if any,
that the Issuer is prejudiced by the failure of the Servicer Indemnified Party
to promptly give such notice. This indemnity shall survive termination or
resignation of the Servicer or Special Servicer or termination of the Indenture.
Neither the Servicer nor the Special Servicer shall be under any obligation
to appear in, prosecute or defend any legal action which is not incidental to
its duties under this Indenture or which in the Servicer's or Special
Servicer's opinion may involve it in any expense or liability; PROVIDED,
HOWEVER, that, subject to the rights of the Majority Holders set forth in
Section 5.12(a), the Servicer or Special Servicer may, in its discretion,
undertake any such action which it may deem necessary or desirable in respect
of this Indenture and the rights and duties of the parties hereto and the
interests of the Holders hereunder. In such event, the legal expenses and costs
of such action and any liability resulting therefrom shall be expenses, costs
and liabilities of the Issuer payable from the Collateral. The indemnification
provided herein is limited in each case to actual damages and does not extend
to consequential damages.
(b) Each of the Servicer and the Special Servicer agrees, with respect to
its actions and omissions and those of its agents (but, not with respect to the
actions or omissions of any other Person), to indemnify the Trustee and the
Holders and hold them harmless against any and all claims, losses, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments, and any
other costs, liabilities, fees and expenses (including reasonable attorneys'
fees) that the Trustee and/or the Holders may sustain in connection with this
Indenture related to the willful misconduct, bad faith and/or negligence by the
Servicer or Special Servicer, in the performance of duties by the Servicer or
Special Servicer hereunder or by reason of negligent disregard of obligations
and duties by the Servicer or Special Servicer, as the case may be, except that
neither the Servicer nor the Special Servicer shall be liable for losses (i)
that arise from events occurring or conditions existing prior to the date of
this Indenture;
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(ii) which were known to the Trustee but not disclosed to the Servicer or
Special Servicer and as to which an employee or agent of the Servicer or
Special Servicer performing the duties of the Servicer or Special Servicer
hereunder did not otherwise have knowledge, unless such failure to have such
knowledge resulted from such Person's negligence, bad faith or misconduct;
(iii) which are caused by Servicer's or Special Servicer's inability to perform
because of the unavailability of funds in the Mortgage Deposit Account, the
Mezzanine Deposit Account, or the Collection Account; or (iv) which are caused
by any action or inaction taken by the Servicer or Special Servicer in
accordance with the express recommendation or at the direction of Trustee or
due to the negligence, bad faith or misconduct of the Trustee; PROVIDED, that
such indemnity is limited to actual damages and shall not cover consequential
damages. The Trustee shall immediately notify the Servicer or Special Servicer,
as applicable, if a claim is made with respect to this Indenture or the Note
Indebtedness entitling the Trustee or the Holders to indemnification hereunder,
whereupon the Servicer or Special Servicer, as applicable, shall assume the
defense of any such claim (with counsel reasonably satisfactory to the Trustee)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Servicer or Special Servicer shall not affect any rights the Trustee or the
Holders may have to indemnification under this Indenture or otherwise except to
the extent the Servicer or Special Servicer is prejudiced by such failure. Such
indemnity obligation shall survive the termination of the Trustee and the
Servicer or Special Servicer hereunder and the termination of this Indenture.
Neither the Servicer nor the Special Servicer shall be required to indemnify
the Trustee and the Holders for any amount paid or payable by either of them in
settlement of any action, proceeding or investigation without the prior written
consent of the Servicer or Special Servicer, as applicable, which consent shall
not be unreasonably withheld.
SECTION 7.21 SERVICER AND SPECIAL SERVICER NOT TO RESIGN; TERMINATION OF
SERVICER BY HOLDERS.
(a) Subject to the provisions of Section 7.22, neither the Servicer nor the
Special Servicer shall resign from any of its obligations and duties hereby
imposed on it, except that it may resign from all of its obligations and duties
hereunder (a) upon determination that its duties are no longer permissible
under applicable law or are in material conflict with applicable law, or (b)
upon thirty (30) days' notice to the Trustee provided that, in either case, a
successor servicer meeting the qualifications described in this Section 7.21(a)
and Section 7.26 is appointed. Any determination permitting the resignation of
the Servicer or Special Servicer upon a determination that its duties hereunder
are no longer permissible under applicable law or are in material conflict with
applicable law must be evidenced by an Opinion of Counsel to such effect
obtained by the Servicer or Special Servicer (at the Servicer's or Special
Servicer's expense) and delivered to the Trustee and the Issuer. No resignation
by the Servicer or Special Servicer under this Indenture shall become effective
until the Trustee, in accordance with Section 7.26 hereof, or a successor
Servicer or Special Servicer shall have assumed all of the Servicer's or
Special Servicer's responsibilities and obligations. Any such successor
Servicer or Special Servicer shall satisfy the requirements set forth in the
fourth sentence of Section 7.26(a) (other than clause (iii) of such section).
The Servicer or Special Servicer may assign its rights and delegate its duties
hereunder to a directly or indirectly wholly owned subsidiary of the Servicer
or Special Servicer PROVIDED such assignment is consented to in writing by the
Trustee (which consent shall not be unreasonably withheld).
(b) Upon the occurrence and continuance of a Servicer Default, the Trustee
may, and on the written request of the Holders of Notes evidencing, in the
aggregate, no less than 25% of the aggregate principal amount of the
Outstanding Notes, shall, terminate the Servicer or Special Servicer, as
applicable, under this Indenture and replace the Servicer or Special Servicer,
as applicable, with a successor servicer having the qualifications set forth in
Section 7.26; PROVIDED, HOWEVER, that such replacement shall not terminate any
rights (including rights to any amounts owed to the Servicer or Special
Servicer under this Indenture or any other Security Documents) and obligations
accrued prior to such replacement. In connection with any termination and
replacement of the Servicer or Special Servicer, the Trustee shall make such
arrangements for the compensation of the successor servicer or successor
special servicer as it shall deem reasonable and, if such compensation is in
excess of the compensation being paid the Servicer or Special Servicer
hereunder, such compensation shall be approved by the Majority Holders and, if
no Event of Default has occurred and is continuing, the Issuer; PROVIDED that
if the
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Holders select a successor Servicer or successor Special Servicer the Holders
will also be responsible for negotiating the compensation to be paid to such
successor Servicer or successor Special Servicer in accordance with the
foregoing.
SECTION 7.22 MERGER OR CONSOLIDATION OF THE SERVICER.
The Servicer and the Special Servicer shall each keep in full effect its
existence and rights as a corporation or other entity, as the case may be,
under the laws of the jurisdiction of its organization, and shall obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary and shall be
in compliance with the laws of the State of New York and each such other State
to the extent necessary to perform its duties under this Indenture.
Any Person into which the Servicer or Special Servicer may be merged or
consolidated, or any Person resulting from any merger or consolidation to which
the Servicer or Special Servicer shall be a party, or any Person succeeding to
substantially all business of the Servicer or Special Servicer (which may be
limited to the commercial mortgage servicing business of the Servicer or
Special Servicer), shall be a permitted successor of the Servicer or Special
Servicer, as the case may be, hereunder and shall be deemed to have assumed all
of the liabilities and obligations of the Servicer or Special Servicer, as
applicable, hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto (other than such Person),
anything herein to the contrary notwithstanding; so long as the successor or
surviving Person to the Servicer or Special Servicer shall agree in writing to
service the Note Indebtedness and the Underlying Loan Documentation in
accordance with this Indenture.
SECTION 7.23 SERVICER DEFAULT.
"SERVICER DEFAULT," wherever used herein, means any one of the following
events (whatever the reason for such Servicer Default and whether it is
voluntary or involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) any failure by the Servicer or Special Servicer to remit to the
Trustee or to any other Person or entity to which it is payable any payment
required to be so made or remitted by it under the terms of this Indenture
or any other Security Document which, with respect to remittances to the
Trustee or to the Payment Account, are not cured by 11:00 a.m. on the
related Payment Date, Redemption Date or Maturity Date, as applicable,
PROVIDED, HOWEVER, that in the event the Servicer or Special Servicer fails
to make any such remittance required to be made by the Servicer or the
Special Servicer to the Payment Account on the Business Day immediately
preceding the Payment Date or, as applicable, on the Business Day
immediately preceding the Redemption Date or Maturity Date, the Servicer or
the Special Servicer shall pay to the Trustee for the account of the Trustee
interest on any amount not timely remitted at the Prime Rate from and
including the first Business Day prior to the Payment Date or Maturity Date,
as applicable, to but not including the date such remittance is actually
made; or
(ii) any failure by the Servicer or Special Servicer to observe or
perform in any material respect any other of the Servicer's or Special
Servicer's covenants or agreements contained in this Indenture, which
failure shall continue unremedied for a period of thirty (30) days after the
date on which written notice of such failure shall have been given to the
Servicer or Special Servicer by the Trustee; PROVIDED that in the case of
any such failure that is susceptible to cure, but that cannot with diligence
be cured within such 30-day period, if the Servicer or Special Servicer will
have promptly commended to cure the same within such 30-day period and
thereafter (as evidenced by a certificate of a Servicing Officer),
prosecutes the curing thereof with diligence, the period within which such
failure may be cured will be extended for such further period as will be
reasonably necessary for the curing thereof, such period not to exceed an
additional 30 days; or
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(iii) a representation or warranty of the Servicer or Special Servicer
set forth in this Indenture shall prove to be incorrect as of the time made
in any respect that materially and adversely affects the interests of the
Holders, and the circumstances or condition in respect of which such
representation or warranty was incorrect shall not have been eliminated or
cured within thirty (30) days after the date on which written notice thereof
shall have been given to the Servicer or Special Servicer by the Trustee;
PROVIDED that in the case of any such failure that is susceptible to cure,
but that cannot with diligence be cured within such 30-day period, if the
Servicer or Special Servicer will have promptly commenced to cure the same
within such 30-day period (as evidenced by a certificate of a Servicing
Officer) and thereafter prosecutes the curing thereof with diligence, the
period within which such failure may be cured will be extended for such
further period as will be reasonably necessary for the curing thereof, such
period not to exceed an additional 30 days; or
(iv) the entry of a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings against the
Servicer or Special Servicer, or for the winding-up or liquidation of the
Servicer's or Special Servicer's affairs, and such decree or order remains
unstayed and in effect for a period of sixty (60) days; or
(v) the consent by the Servicer or Special Servicer to the appointment of
a conservator or receiver or liquidator or liquidating committee in any
insolvency, readjustment of debt, marshaling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to the Servicer
or Special Servicer or of or relating to all or substantially all of its
property.
Subject to Section 7.21(b), if (A) a Servicer Default due to any action or
inaction of the Servicer or Special Servicer shall occur, (B) any of the
representations or warranties of Servicer or Special Servicer are breached in
any material respect and, as a result thereof, a Servicer Default occurs, or
(C) the Servicer or Special Servicer fails to carry out any other of its
obligations under this Indenture or any other Security Document and, as a
result thereof, a Servicer Default occurs, then, and in each and every such
case, so long as such Servicer Default shall not have been remedied, the
Trustee may terminate all of the rights and obligations of the Servicer or
Special Servicer, as applicable hereunder other than rights (including rights
to any amounts owed to it under this Indenture or any other Security Documents)
and obligations accrued prior to such termination by notice in writing to the
Servicer or Special Servicer.
If a Responsible Officer of the Trustee shall obtain knowledge of any
Servicer Default hereunder, the Trustee shall immediately notify the Servicer
or Special Servicer, as applicable, of the occurrence of such Servicer Default.
Upon the occurrence and continuation of any Servicer Default hereunder known to
a Responsible Officer of the Trustee, the Trustee shall give the Issuer written
notice of the occurrence thereof. Within ten (10) days after a Responsible
Officer of the Trustee obtains actual knowledge of the occurrence of any
Servicer Default, the Trustee shall transmit by mail to all Holders notice of
such Servicer Default, unless such Servicer Default shall have been cured or
waived.
On or after the receipt by the Servicer or Special Servicer, as applicable,
of written notice of termination, all authority, power and obligations of the
Servicer or Special Servicer, as applicable, under this Indenture (other than
its capacity, if any, as a Holder) shall pass to and be vested in the Trustee
in its capacity as successor Servicer or Special Servicer, as applicable,
hereunder pursuant to and under this Section. The Servicer and Special Servicer
agree to provide to the Trustee promptly (and in any event no later than five
Business Days subsequent to such notice) all documents and records, including
those in electronic form, requested by it to enable it to assume the Servicer's
or Special Servicer's, as applicable, obligations hereunder, and to cooperate
with the Trustee in effecting the termination of the Servicer's or Special
Servicer's, as applicable, responsibilities and rights hereunder, including,
without limitation, the transfer within one Business Day to the Trustee or its
duly appointed agent or any successor appointed by it for administration by it
of all cash and other securities then held in the Mortgage Deposit Account, the
Mezzanine Deposit Account, the Collection Account, or any of the
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sub-accounts maintained pursuant to the Cash Management Agreement or the
Mezzanine Cash Management Agreement and any other cash received by the Servicer
or Special Servicer under the Underlying Loan Documentation or the Security
Documents and which shall at the time have been or should have been credited by
the Servicer or Special Servicer to the Payment Account or thereafter received
with respect to the Underlying Loan Documentation (PROVIDED, HOWEVER, that
notwithstanding anything to the contrary in this Section, the Servicer and
Special Servicer shall continue to be entitled to receive all amounts accrued
or owing to it under this Indenture and the other Security Documents on or
prior to the date of such termination, whether in respect of Advances or
otherwise in accordance with the terms hereof). All reasonable costs and
expenses (including attorneys' fees) incurred by the Trustee, the Issuer or the
Holders in connection with the appointment of a successor Servicer or Special
Servicer, including, but not limited to, transferring originals of the Security
Documents to the successor Servicer or Special Servicer and, if applicable,
amending this Indenture to reflect such succession as Servicer or Special
Servicer pursuant to this Section shall be paid by the predecessor Servicer or
Special Servicer upon presentation of reasonable documentation of such costs
and expenses to the Trustee; PROVIDED, HOWEVER, that all such costs and
expenses shall be paid pro rata by the Majority Holders in the event that the
Special Servicer is terminated pursuant to Section 5.12(c) and no Servicer
Event of Default has occurred or is continuing. If not paid by the predecessor
Servicer or Special Servicer within sixty (60) days after the request therefor,
such costs and expenses shall be advanced by the Issuer, who shall then be
entitled to reimbursement therefor from the predecessor Servicer, predecessor
Special Servicer or Majority Holders as applicable.
SECTION 7.24 REMEDIES OF TRUSTEE.
During the continuance of any Servicer Default and so long as such Servicer
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.21 and/or 7.23 and elsewhere in this Indenture, shall
have the right, in its own name as trustee of an express trust, to take all
actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights
and remedies, of the Holders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of
claim, debt and other papers in connection therewith). Except as otherwise
expressly provided in this Indenture, no remedy provided for by this Indenture
shall be exclusive of any other remedy, and each and every remedy shall be
cumulative and in addition to any other remedy and no delay or omission to
exercise any right or remedy shall impair any such right or remedy or shall be
deemed to be a waiver of any Servicer Default.
SECTION 7.25 DIRECTIONS BY HOLDERS AND DUTIES OF TRUSTEE DURING SERVICER
DEFAULT.
During the continuance of any Servicer Default, the Majority Holders may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture; PROVIDED, HOWEVER, that the Trustee shall be
under no obligation to pursue any such remedy, or to exercise any of the trusts
or powers vested in it by this Indenture (including, without limitation, (i)
the conducting or defending of any administrative action or litigation
hereunder or in relation hereto, and (ii) the terminating of the Servicer or
Special Servicer or any successor Servicer or Special Servicer from its rights
and duties as Servicer or Special Servicer hereunder) at the request, order or
direction of any of the Holders, unless such Holders shall have offered the
Trustee security or indemnification satisfactory to the Trustee against the
costs, expenses and liabilities which may be incurred therein or thereby and,
PROVIDED, FURTHER, that the Trustee shall have the right to decline to follow
any such direction if the Trustee determines that the action or proceeding so
directed may not lawfully be taken (such determination to be evidenced by an
Opinion of Counsel obtained by the Trustee and delivered to the Holders of
Notes making such direction, with a copy to the Servicer or Special Servicer
and the Issuer; the cost of such Opinion of Counsel to be payable by the Issuer
in accordance with Section 6.5), if the Trustee in good faith determines that
the action or proceeding so directed would involve it in personal liability or
be unjustly prejudicial to the non-assenting Holders or if the Trustee
determines that the action or proceeding is not consistent with the Servicing
Standards.
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SECTION 7.26 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer or Special Servicer receives a notice
of termination pursuant to Section 5.12(d) or Section 7.23 or the Trustee
receives the resignation of the Servicer or Special Servicer in accordance with
Section 7.21(a) (unless a successor is appointed pursuant to Section 7.21), the
Trustee shall be the successor in all respects to the Servicer or Special
Servicer, as the case may be, in its capacity as Servicer or Special Servicer,
as the case may be, under this Indenture and the transactions set forth or
provided for herein and shall have all the rights and powers and be subject to
all the responsibilities, duties and liabilities relating thereto placed on the
Servicer or Special Servicer, as the case may be, accruing after such
termination; and PROVIDED, that any failure to perform such duties or
responsibilities caused by the Servicer's or Special Servicer's, as the case
may be, failure to comply with Section 7.21 shall not be considered a default
by the Trustee hereunder. In its capacity as such successor, the Trustee shall
have the same limitation of liability herein granted to the Servicer or Special
Servicer, as the case may be. As compensation therefor, the Trustee shall be
entitled to such compensation as the Servicer or Special Servicer, as the case
may be, would have been entitled to hereunder if no such notice of termination
or resignation had been given (other than amounts due under this Indenture or
the other Security Documents prior to the date of such termination), including,
without limitation, the fees payable hereunder. Notwithstanding anything
contained herein, the Trustee may, if it shall be unwilling to so act, or
shall, if it is unable to so act, appoint any established financial institution
or mortgage servicing institution which has a net worth of not less than
$15,000,000 and if no declaration of acceleration of the Notes has occurred,
has been consented to in writing by the Issuer, such consent not to be
unreasonably withheld (as such consent right to terminate after the expiration
of 30 days after request therefore from the Trustee), as the successor to the
Servicer or Special Servicer, as the case may be, hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the
Servicer or Special Servicer, as the case may be, hereunder; PROVIDED, HOWEVER,
that until such appointment and assumption, the Trustee will continue to
perform the servicing obligations pursuant to this Indenture to the extent set
forth above. In connection with any such appointment and assumption, the
Trustee may make such arrangements for the compensation of such successor as it
and such successor shall agree; PROVIDED, HOWEVER, that no such compensation
shall be in excess of that permitted the Servicer or Special Servicer, as the
case may be, hereunder unless approved by the Issuer and the Majority Holders.
In the event that no successor Servicer or Special Servicer has been appointed
as provided above, the Trustee shall solicit, by public announcement, bids from
commercial finance institutions, banks and mortgage servicing institutions
meeting the qualifications set forth above. Within sixty (60) days after any
such public announcement, the Trustee shall negotiate and effect the sale,
transfer and assignment of the servicing rights and responsibilities hereunder
to the qualified party submitting the highest satisfactory bid. The Trustee
shall deduct all costs and expenses of any public announcement and of any sale,
transfer and assignment of the servicing rights and responsibilities hereunder
from any sum received by the Trustee from the successor to the Servicer or
Special Servicer in respect of such sale, transfer and assignment. After such
deductions, the remainder of such sum shall be paid by the Trustee to the
Servicer or Special Servicer, as the case may be, at the time of such sale,
transfer and assignment to the Servicer's or Special Servicer's, as the case
may be, successor, net of any amounts due from the Servicer or Special
Servicer, as the case may be, hereunder, which shall be deposited in the
Payment Account. If no successor servicer or special servicer shall have been
so appointed and have accepted appointment within sixty (60) days after the
Trustee receives the resignation of the Servicer or Special Servicer in
accordance with Section 7.21, the Trustee may petition any court of competent
jurisdiction for the appointment of a successor servicer or special servicer in
accordance with the procedures and terms set forth above. The Trustee, the
Issuer, the Servicer, the Special Servicer and such successor shall take such
action, consistent with this Indenture, as shall be necessary to effectuate any
such succession. Neither the Trustee nor any successor Servicer or Special
Servicer shall be deemed to be in default of any of its obligations under this
Section if and to the extent that such default arises from failure of the
Servicer or Special Servicer to timely provide all applicable books, records
and other documents necessary to effectuate the sale, transfer or assignment of
servicing rights to the Trustee or a successor Servicer or Special Servicer in
accordance with this Section.
(b) Any successor, including the Trustee, to the Servicer or Special
Servicer hereunder shall during the term of its service as servicer maintain in
force (i) a policy or policies of insurance covering errors and omissions in
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the performance of its obligations as mortgage servicer hereunder, and (ii) a
fidelity bond in respect of its officers, employees and agents to the same
extent that the Servicer or Special Servicer is required pursuant to Section
7.5(b).
SECTION 7.27 NOTIFICATION TO HOLDERS.
(a) Upon any termination of the Servicer or Special Servicer or appointment
of a successor to the Servicer or Special Servicer, in each case as provided
herein, the Trustee shall as soon as practicable give written notice thereof to
the Issuer and to each of the Holders at its addresses appearing in the
Register.
(b) Any notification to Holders required pursuant to Section 7.23 or Section
7.21 shall advise the Holders of their rights hereunder.
SECTION 7.28 WAIVER OF PAST EVENTS OF DEFAULT.
Either the Trustee or the Majority Holders may, on behalf of all Holders of
Notes, waive any Servicer Default hereunder and its consequences; PROVIDED,
that in the absence of written instructions from all Holders the Trustee shall
not waive any Servicer Default (i) consisting of the failure to remit or
deposit any interest on the Notes as required by it hereunder or (ii) in
respect of a covenant or provision hereunder that under Article IX hereof
cannot be modified or amended without the consent of each Holder. Upon any such
waiver of a past default, such default shall cease to exist, and any Servicer
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Indenture. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 7.29 REPRESENTATIONS AND WARRANTIES.
Each of the Servicer and the Special Servicer hereby represents and warrants
to the other parties hereto that as of the Closing Date:
(i) it has been duly organized and is validly existing under the laws of
the State of Delaware and is in compliance with and in good standing as a
corporation under the laws of each State in which the Underlying Collateral
or the Underlying Properties are located to the extent necessary to perform
its obligations in accordance with the terms of this Indenture, except where
the failure to so qualify or comply would not materially adversely affect
the ability of the Servicer or Special Servicer, as applicable, to perform
its obligations hereunder in accordance with the terms of this Indenture;
(ii) the execution and delivery of this Indenture by it have been duly
authorized by all necessary action on the part of the Servicer or Special
Servicer, as the case may be; it is duly authorized under applicable law and
its organizational documents to perform its obligations under this Indenture
and all action necessary or required therefor has been duly and effectively
taken or obtained; none of the execution, delivery or performance of this
Indenture, or the consummation of the transactions herein contemplated, or
the compliance with the provisions hereof, in each case by the Servicer or
Special Servicer, as the case may be, will conflict with or result in a
breach of or constitute a default under (A) the terms of any material
agreement or instrument to which it is a party or by which it is bound; (B)
the organizational documents of the Servicer or Special Servicer, as the
case may be; or (C) to its knowledge, the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Servicer or Special Servicer or its properties, as the case may be, which
conflict, breach or default in the case of clause (A) or clause (C)
materially and adversely affects (X) the ability of the Servicer or Special
Servicer, as the case may be, to perform its obligations under this
Indenture or (Y) the operations or financial condition of the Servicer or
Special Servicer, as the case may be;
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(iii) no consent, approval, authorization or order of, or registration or
qualification with any court or any regulatory authority or other
governmental agency or body is required for the execution, delivery and
performance by Servicer or Special Servicer of this Indenture, except such
as has been obtained prior to the Closing Date and is in full force and
effect;
(iv) this Indenture has been duly executed and delivered by it and,
assuming due authorization, execution and delivery by the other parties
hereto, constitutes a valid, legal and binding obligation of the Servicer or
Special Servicer, as the case may be, enforceable against it in accordance
with its terms, except as such enforcement may be limited by applicable
bankruptcy, fraudulent conveyance or transfer, insolvency, reorganization,
moratorium or other laws of general applicability relating to or affecting
the rights and remedies of creditors generally or by general principles of
equity (regardless of whether such enforceability is considered and applied
in a proceeding in equity or at law);
(v) there are no actions, suits or proceedings pending or, to its
knowledge, threatened against it, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Indenture or (B) with respect to any other
matter which, either in any one instance or in the aggregate, would result
in any material adverse change in the business, operations or financial
condition of it or would materially impair its ability to perform its
obligations under this Indenture;
(vi) it is not in default with respect to any order or decree of any
court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default could reasonably have consequences that
would materially and adversely affect its business, operations or financial
condition or could reasonably have consequences that would materially and
adversely affect its ability to perform its obligations hereunder; and
(vii) it has obtained as of the Closing Date the insurance required to be
maintained by it pursuant to Section 7.5(b).
ARTICLE VIII
THE ISSUER
SECTION 8.1 REPORTS BY THE ISSUER.
(a) The Issuer shall, at its own expense, promptly deliver to the Trustee,
with copies to the Servicer and Special Servicer, copies of all reports and
statements to be prepared hereunder and under the Mortgage and the Mezzanine
Loan Agreement.
(b) The Issuer shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; PROVIDED that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
(c) The Issuer shall furnish the Trustee:
(i) within 90 days after the execution and delivery of this Indenture, an
Opinion of Counsel either stating that in the opinion of such counsel this
Indenture and all other necessary statements and documents have been
properly recorded and filed and all fees paid thereon so as to make
effective and fully perfected the lien intended to be created hereby and
reciting the details of such action, or stating that in the opinion of such
counsel no such action is necessary to make such lien effective; such
Opinion of Counsel may contain appropriate assumptions, exceptions,
qualifications and limitations; and
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(ii) at least annually after the execution and delivery of this
Indenture, an Opinion of Counsel either stating that in the opinion of such
counsel such action has been taken with respect to the recording, filing,
re-recording and refilling of this Indenture, any indentures supplemental
hereto and any other requisite documents and with respect to the execution
and filing of any financing statements and continuation statements as is
necessary to maintain the lien of this Indenture and reciting the details of
such action, or stating that in the opinion of such counsel no such action
is necessary to maintain such lien; such Opinion of Counsel may contain
appropriate assumptions, exceptions, qualifications and limitations.
SECTION 8.2 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER.
(a) The Issuer hereby represents and warrants to the other parties hereto
that as of the Closing Date:
(i) the Issuer is a limited liability company duly formed, validly
existing and in good standing under the laws of Delaware, with full limited
liability company power and authority to own the Indenture Collateral, to
carry on its business relating to the Indenture Collateral as presently
conducted and to enter into and perform its obligations under the Notes,
this Indenture and the other Security Documents to which it is a party;
(ii) the execution and delivery of the Notes, this Indenture and the
other Security Documents to which it is a party by the Issuer have been duly
authorized by all necessary limited liability company action on the part of
the Issuer; neither the execution, delivery and performance of the Notes,
this Indenture and the other Security Documents to which it is a party, nor
the consummation of the transactions herein or therein contemplated, nor the
compliance with the provisions hereof or thereof by the Issuer, will
conflict with or result in a breach of, or constitute a default under (A)
the terms of any material agreement or instrument to which the Issuer is a
party or by which it is bound; (B) the limited liability company agreement
of the Issuer; or (C) to the knowledge of the Issuer, the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on the
Issuer; none of the Issuer or any of its Affiliates is a party to, bound by,
or in breach of or in violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which, in any such case,
would reasonably be expected to have a material adverse effect on the
Issuer's ability to perform its obligations under this Indenture or the
other Security Documents to which it is a party;
(iii) to the Issuer's knowledge, no consent, approval, authorization,
order, registration or qualification of or with any court or any regulatory
authority or other governmental agency or body required for the execution,
delivery and performance by the Issuer of its obligations under the Notes,
this Indenture or the other Security Documents, except such as has been
obtained and is in full force and effect;
(iv) each of the Notes, this Indenture and each of the other Security
Documents have been duly executed and delivered by the Issuer and, assuming
due authorization, execution and delivery by the other parties hereto or
thereto, as applicable, constitutes a valid and legally binding obligation
of the Issuer enforceable against it in accordance with its terms, except as
such enforcement may be limited by bankruptcy, fraudulent conveyance or
transfer, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting the rights of creditors generally, and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(v) there are no actions, suits or proceedings pending or, to the
knowledge of the Issuer, threatened against the Issuer, before or by any
court or other governmental body (A) with respect to any of the transactions
contemplated by this Indenture or any other Security Document or (B) with
respect to any other matter which could, if determined adversely to the
Issuer, materially and adversely affect its ability to perform its
obligations under the Notes, this Indenture and the other Security Documents
to which it is a party; and
(vi) the Issuer, on the date hereof and prior to the assignment of the
Underlying Loans to the Trustee, is the sole owner and holder of the
Underlying Loans and has all right, title and interest in and to the
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Underlying Collateral as mortgagee or pledgee, as applicable, in each case
free and clear of any liens, pledges, charges, participation interests and
security interests of any nature, other than the security interest granted
to the Trustee in connection with the Notes.
(b) Commencing upon the earlier of discovery by the Issuer or receipt of
notice by the Issuer of a breach of any representation or warranty set forth in
this Section 8.2, the Issuer shall diligently cure such breach in all material
respects.
ARTICLE IX
SUPPLEMENTAL INDENTURES; AMENDMENTS
SECTION 9.1 SUPPLEMENTAL INDENTURES OR AMENDMENTS WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Issuer, when authorized by its
members, the Servicer, the Special Servicer (it being understood that the
Servicer's and Special Servicer's signature shall not be required for any such
supplement or amendment unless the supplement or amendment restricts, changes
or impairs the rights of the Servicer or Special Servicer hereunder or under
any of the Security Documents or adds to or changes the liability or
obligations of the Servicer or Special Servicer hereunder or under any of the
Security Documents in any respect) and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, or one or
more amendments hereto or to the Notes, and the Issuer and the relevant
Underlying Borrower may enter into any amendments to the Mortgage Security
Documents or the Mezzanine Security Documents, and the Issuer and the Trustee
may enter into any amendments to the other Indenture Security Documents in form
satisfactory to the Trustee and the Servicer and Special Servicer (it being
understood that the Servicer's and Special Servicer's consent or signature
shall not be required for any such supplement or amendment unless the
supplement or amendment restricts, changes or impairs the rights of the
Servicer or Special Servicer hereunder under any of the Security Documents or
adds to or changes the liability or obligations of the Servicer or Special
Servicer hereunder or under any of the Security Documents in any respect), for
any of the following purposes:
(i) to add to the covenants of the Issuer for the benefit of the Holders
of Notes or to surrender any right or power herein conferred upon the
Issuer; or
(ii) to add to the covenants of the Underlying Borrowers under any
Mezzanine Security Document or any Mortgage Security Document for the
benefit of the Holders of Notes or to surrender any right or power conferred
upon the Underlying Borrowers under those aforementioned agreements; or
(iii) to add any additional Events of Default or Servicer Defaults
hereunder; or
(iv) to add any additional "Events of Default" to any Mezzanine Security
Document or any Mortgage Security Document; or
(v) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee or successor Servicer or Special Servicer; or
(vi) to correct any typographical error, to cure any ambiguity, or to
cure, correct or supplement any defective or inconsistent provision herein,
in the Notes, or in any Security Document, or to conform any such provision
to the description thereof in the Registration Statement PROVIDED such
action shall not adversely affect the interests of the Holders of Notes; or
(vii) to convey, transfer, assign, mortgage or pledge any property to the
Issuer in the case of an amendment to a Mortgage Security Document or a
Mezzanine Security Document, or the Trustee in the case of an amendment to
the Indenture, the Notes or another Indenture Security Document, in either
case so long as the interests of the Holders of Notes would not be adversely
affected; or
(viii) to correct any manifestly incorrect description, or amplify the
description, of any property subject to the lien of this Indenture or the
other Security Documents; or
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(ix) to make a required or conforming change to any Mezzanine Security
Document or any Mortgage Security Document in connection with any amendment
or supplement to this Indenture permitted hereunder; or
(x) to modify any Security Document as required or made necessary by any
change in applicable law, so long as the interests of the Holders of Notes
would not be adversely affected.
SECTION 9.2 SUPPLEMENTAL INDENTURES OR AMENDMENTS WITH CONSENT OF HOLDERS.
With the consent of the Majority Holders, the Issuer, the Servicer, the
Special Servicer (it being understood that the Servicer's and Special
Servicer's signature shall not be required for any such supplement or amendment
unless the supplement or amendment restricts, changes or impairs the rights of
the Servicer or Special Servicer hereunder or under any of the Security
Documents or adds to or changes the liability or obligations of the Servicer or
Special Servicer hereunder or under any of the Security Documents in any
respect) and the Trustee may enter into an indenture or indentures supplemental
hereto or one or more amendments hereto for the purpose of adding to any
provisions of or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of Notes
under this Indenture and the Issuer and the Trustee may enter into any
amendments to the other Security Documents; PROVIDED, HOWEVER, that no such
supplemental indenture or amendment shall, without the consent of the Holder of
each Outstanding Note adversely affected thereby,
(i) change the Maturity Date of, the principal of, or the due date or
amount of any interest on, any Note, or reduce the principal amount thereof
or the rate of interest thereon or change the coin or currency in which any
Note or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Maturity Date
thereof (or, in the case of redemption, on or after the Redemption Date), or
(ii) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose Holders is required for any supplemental indenture, or
the consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or for any other reason under this
Indenture or reduce the requirements of Section 12.4 for quorum or voting, or
(iii) change any obligation of the Issuer to maintain an office or agency
in the places and for the purposes specified in Section 10.2, or
(iv) modify any of the provisions of this Section 9.2 or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Note affected thereby, or
(v) except as otherwise expressly provided in this Indenture or in the
other Security Documents, deprive any Holder of the benefit of a first
priority security interest in the Indenture Collateral, or
(vi) modify the provisions of this Indenture relating to payments on the
Notes, or
(vii) release from the lien of the Indenture all or any part of the
Indenture Collateral except as described in this Indenture or the other
Security Documents, or
(viii) modify the Servicing Standards, or
(ix) authorize the Trustee to agree to delay the timing of, or reduce the
payments to be made on, the Notes except as described herein.
In connection with the execution of any such supplemental indenture or
amendment, the Issuer shall obtain and deliver to the Trustee an Opinion of
Counsel from counsel experienced in federal income tax matters that the
execution of such supplemental indenture will not result in the Notes being
treated as having been exchanged for new notes pursuant to Section 1001 of the
Code, PROVIDED that no such Opinion of Counsel shall be required if such
Opinion of Counsel cannot be obtained and that fact is disclosed to the Holder
of each Outstanding Note
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whose consent is required hereunder. It shall not be necessary for the consent
of the Holders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof. No such supplement or amendment of this
Indenture or the Notes shall be permitted to the extent that such amendment
would cause an outstanding Advance to be a Nonrecoverable Advance.
SECTION 9.3 DELIVERY OF SUPPLEMENTS.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.1 or Section
9.2, the Issuer shall mail, first class postage prepaid, a notice to each
Holder at the address for such Holder set forth in the Register setting forth
in general terms the substance of such supplemental indenture or amendment. Any
failure of the Issuer to mail such a notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.4 OPINION OF COUNSEL.
If the Trustee determines in the exercise of its good faith judgment that it
has doubt as to whether a proposed amendment or supplement to this Indenture is
permitted under the terms of Section 9.1 or 9.2 above, the Trustee may require,
as a condition to its executing any such amendment or supplement, that the
Issuer deliver, at no expense to the Trustee, an Opinion of Counsel confirming
that the amendment or supplement in question is permitted under the relevant
Section of this Article IX, it being understood that the Trustee does not have
any affirmative obligation to request such an opinion.
ARTICLE X
COVENANTS; WARRANTIES
SECTION 10.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Issuer covenants and agrees for the benefit of the Holders of Notes that
it will duly and punctually pay the principal of, and interest on, the Notes
and any fees due and payable in accordance with the terms of the Notes and this
Indenture.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Issuer will maintain or cause to be maintained an office or agency in
the continental United States where notices and demands to or upon the Issuer
in respect of the Notes and this Indenture may be served. The Issuer will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Issuer hereby
appoints the Trustee as its agent to receive such respective notices and
demands.
The Issuer may also from time to time designate one or more other offices or
agencies outside the United States where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall
in any manner relieve the Issuer of its obligation to maintain an office or
agency in accordance with the requirements set forth in the preceding
paragraph. The Issuer will give prompt written notice to the Trustee and prompt
notice to the Holders, in accordance with the provisions of Section 1.6, of any
such designation or rescission and of any change in the location of such office
or agency.
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SECTION 10.3 FISCAL AGENT; MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
The Trustee hereby appoints (on behalf of the Issuer) itself, at its
Corporate Trust Office, as Fiscal Agent in connection with the Notes. The
foregoing appointment may be rescinded at any time by the Trustee giving notice
thereof to the Issuer. All payments made by the Trustee in its capacity as
Fiscal Agent, will be made by wire transfer to such account as a Holder shall
designate by written instructions to be received by the Trustee no less than
five (5) Business Days prior to the applicable Regular Record Date.
The Trustee will cause any Fiscal Agent other than the Trustee, appointed
pursuant to Section 3.6, to execute and deliver to the Trustee an instrument in
which such Fiscal Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Fiscal Agent will:
(i) hold all sums held by it for the payment of the principal of and
interest on the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(ii) give the Trustee notice of the occurrence and continuance of any
Event of Default by the Issuer (or any other obligor upon the Notes) in the
making of any payment of principal of or interest on the Notes; and
(iii) at any time during the continuance of any such Event of Default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Fiscal Agent.
SECTION 10.4 ENTITY EXISTENCE.
The Issuer represents and agrees that it will do or cause to be done all
things necessary and within its control to preserve and keep in full force and
effect the existence, rights (contractual and statutory) and franchises of the
Issuer. The Issuer represents that neither it nor the Underlying Borrowers or
the owners of the Underlying Properties are in default in the payment of any
taxes levied or assessed against any of the Underlying Collateral or Underlying
Properties under any applicable statute, rule, order or regulation of any
governmental authority, under the Notes, this Indenture or any of the other
Security Documents to which the Issuer is a party or under any other agreement
to which the Issuer is a party or by which the Issuer or the Underlying
Collateral is bound.
SECTION 10.5 PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuer agrees, in its independent capacity, that it will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, all taxes, assessments and governmental charges levied or imposed
upon the Underlying Properties or upon the income or profits of the Issuer or
the Underlying Borrowers derived from the Underlying Properties as shown to be
due on the tax returns filed by the Issuer or the Underlying Borrowers and all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the Underlying Properties, except any such taxes,
assessments, governmental charges or claims which the Issuer or the Underlying
Borrowers are in good faith contesting in appropriate proceedings in accordance
with the Mortgage and the Mezzanine Loan Agreement.
SECTION 10.6 MAINTENANCE OF LIEN AND RECORDING.
(a) The Issuer will maintain and preserve the security interest created by
this Indenture (in Section 3.1(c)) and each other Security Document to which it
is a party (except in connection with a release thereof permitted hereby or
thereby) so long as any Note is Outstanding.
(b) The Issuer will, forthwith after the execution and delivery of this
Indenture and thereafter from time to time, cause the Mortgage, the Mezzanine
Pledge Agreement and any continuation statement or, upon the reasonable request
of the Trustee or the Servicer, any additional financing statement or similar
instrument relating to the Security Documents or to any property intended to be
subject to the lien thereof to be filed,
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registered and recorded in such manner and in such places as may be required by
law in order to publish notice of and fully to protect and perfect the validity
thereof or the lien thereof purported to be created upon the property subject
thereto and the Issuer will take such actions with respect to the interest and
rights of the Trustee in the Collateral as are necessary or reasonably
requested by the Trustee or the Servicer to preserve the interest and rights of
the Trustee therein. The Issuer will pay or cause to be paid all document,
recording, stamp and similar taxes and fees incident to such filing,
registration and recording, and all expenses incident to the preparation,
execution and acknowledgment of the Security Documents and of any instrument of
further assurance, and all taxes (except income taxes and franchise taxes of
parties other than the Issuer), duties and charges arising out of or incurred
in connection with the execution and delivery of such instruments; PROVIDED,
HOWEVER, that the Issuer shall not be required to pay or discharge or cause to
be paid or discharged any lien or encumbrance affecting the Collateral to the
extent such lien or encumbrance is being contested in good faith by appropriate
proceedings in accordance with and as permitted by the provisions of the
Security Documents. The Issuer will at all times or will cause the Underlying
Borrowers to preserve, warrant and defend the Trustee's title and right in and
to the property included in the Collateral against the claims of all Persons
claiming by or through the Issuer or any Underlying Borrower, subject to the
Permitted Exceptions.
SECTION 10.7 PERFORMANCE AND ENFORCEMENT.
(a) The Issuer will faithfully observe and perform, or cause to be observed
and performed, all its covenants, agreements, conditions and requirements
contained in the Security Documents in accordance with the terms thereof and
will maintain the validity and effectiveness of such instruments and the pledge
thereof to the Trustee. The Issuer will not take any action, nor permit any
action to be taken, that will release any party to such instruments from any of
its obligations or liabilities thereunder, or will result in the termination,
modification or amendment, or will impair the validity, of any such
instruments, except as expressly provided for herein and therein. The Issuer
will give the Trustee and the Servicer written notice of any default by any
party to any of such instruments promptly after it becomes known to the Issuer.
(b) Subject to the provisions of the Leases, the Mortgage and the Mezzanine
Loan Agreement in the event of a casualty or condemnation resulting in the
payment of any Proceeds, the Servicer shall hold such Proceeds as part of the
Collateral in an Eligible Account (the "CASUALTY ACCOUNT"), in the name of the
Servicer as agent for the Trustee and shall disburse or apply such Proceeds in
accordance with the provisions of the Mortgage and the Mezzanine Loan Agreement.
SECTION 10.8 NEGATIVE COVENANTS.
The Issuer agrees that:
(a) it shall not incur, create, assume or permit the existence of any
debt (including guaranteeing any obligation) other than (i) the Notes and
other debt expressly permitted by the other provisions of this Indenture and
the other Security Documents; (ii) the Underlying Loans; and (iii) customary
unsecured trade payables incurred in the ordinary course of business
relating to the ownership of Park Plaza 2 or the Underlying Properties,
PROVIDED, in the case of this clause (iii), that the same (A) do not exceed,
in the aggregate, at any time a maximum amount of $100,000; and (B) are paid
within sixty (60) days of the date incurred. The Issuer shall not permit the
Underlying Borrowers to incur, create, assume or permit the existence of any
debt (including guaranteeing any obligations), other than debt permitted
under the terms of the Underlying Loans;
(b) it shall, and will cause the Underlying Borrowers and Park Plaza 2
not to pledge or to incur, create, assume or permit the existence of any
Lien upon the Collateral, the Underlying Properties or any of their
respective other property, assets or revenues, whether now owned or
hereafter acquired, except the security interest in the Indenture Collateral
granted to the Trustee in connection with the Notes, the security interest
in the Underlying Collateral granted to the Issuer in connection with the
Underlying Loans, and the Permitted Exceptions;
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(c) it shall not engage in any business unrelated to (i) the ownership of
the direct and/or indirect interests in the Underlying Borrowers, (ii)
making the Mortgage Loan and the Mezzanine Loan, (iii) issuing the Notes,
and (iv) otherwise dealing with the Underlying Borrowers, the wholly owned
subsidiaries of the Underlying Borrowers, the Mortgage Loan, the Mezzanine
Loan and the Notes;
(d) it shall not own any assets other than assets relating to the
Underlying Loans (including, without limitation, any proceeds therefrom and
any funds in the Mortgage Deposit Account and the Mezzanine Deposit Account)
and its interest in Park Plaza 1;
(e) it shall not, except as required by law (i) (and then only in a
manner that does not violate the requirements of any of the Security
Documents and the Indenture) engage in, seek or consent to any dissolution,
winding up, liquidation, consolidation, merger, asset sale, transfer of all
or any portion of its assets, or amend its organizational or governing
documents in any manner adverse to the Issuer's ability to satisfy the
requirements of Sections 10.8(a) through (d) hereof, or (ii) (and then only
in a manner that does not violate the requirements of any of the Security
Documents and the Indenture) cause or permit Park Plaza 1 to engage in, seek
or consent to any dissolution, winding up, liquidation, consolidation,
merger, asset sale, transfer of all or any portion of its assets, or amend
its applicable organizational documents in a manner adverse to Park Plaza
1's ability to satisfy any requirement of the Mezzanine Loan Agreement that
Park Plaza 1 be a single-purpose entity;
(f) it shall separately identify and segregate its funds and assets from
those of any other entity and shall not commingle its funds or assets with
those of any other person or entity; and
(g) it shall not consent to any amendment to the Mezzanine Security
Documents or the Mortgage Security Documents other than an amendment in
accordance with Article IX.
SECTION 10.9 STATEMENT AS TO COMPLIANCE.
The Issuer will deliver to the Servicer and the Trustee, within one hundred
and twenty (120) days after the end of each fiscal year, an Officer's
Certificate, stating that in the course of the performance by the signer of
such Officer's Certificate of his or her present duties as an officer or
authorized signatory of the Issuer such signer would normally obtain knowledge
or have made due inquiry as to the existence of any condition or event which
constitutes an Event of Default or would constitute an Event of Default after
notice or lapse of time or both and that to the best of the signer's knowledge,
based on such review, (a) the Issuer has fulfilled all its obligations under
this Indenture in all material respects throughout such year, or, if there has
been a default in the fulfillment of any such obligation in any material
respect, specifying each such default known to such signer and the nature and
status thereof, and (b) no event has occurred and is continuing which is, or
after notice or lapse of time or both would become, an Event of Default, or, if
such an event has occurred and is continuing, specifying each such event known
to such signer and the nature and status thereof.
ARTICLE XI
REDEMPTION OF NOTES
SECTION 11.1 APPLICABILITY OF ARTICLE.
(a) The Notes shall be subject to redemption on any Payment Date or any
other date fixed for redemption in accordance with this Article XI, in whole or
in part, as provided in Section 11.1(b) or 11.7 below; PROVIDED, that in each
such case no Notes may be redeemed hereunder unless and until all other amounts
then due and payable to the Trustee, the Servicer and Special Servicer under
this Indenture have been paid in full.
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(b) If during any 30 consecutive days the Redemption Account shall have a
balance in excess of $10,000, the Issuer shall redeem an equivalent principal
amount of Notes at a Redemption Price equal to 100% of their principal amount,
together with interest and all other amounts owing on the principal amount of
the Notes so redeemed accrued to the date of redemption, on the first Payment
Date on which the Issuer is able to do so after the Trustee has complied with
the notice provisions of this Article XI.
SECTION 11.2 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
In the case of any redemption pursuant to Section 11.1(b):
(a) if less than all of the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than twenty (20) days prior
to the Redemption Date by the Trustee from the Outstanding Notes not
previously called for redemption, pursuant to a random selection procedure
which may provide for the selection for redemption of portions (equal to
$100 and integral multiples in excess thereof) of a Note. The Trustee shall
promptly notify the Issuer in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal
amount thereof to be redeemed; and
(b) for purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate,
in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
SECTION 11.3 NOTICE OF REDEMPTION.
Notice of a redemption pursuant to Section 11.1(b) shall be given by the
Trustee in the manner provided in Section 1.6 to the Holders of Notes to be
redeemed, not later than fifteen (15) days prior to the Redemption Date.
All such notices of redemption shall state:
(a) the Redemption Date (which date may either be a Payment Date or such
other Business Day provided that if the Redemption Date is to occur on a
date other than a Payment Date, the Redemption Price shall include interest
on the Notes to be redeemed through but excluding the next succeeding
Payment Date),
(b) if less than all the Outstanding Notes are to be redeemed, which
Notes are to be redeemed and the aggregate principal amount of the Notes to
be redeemed,
(c) the Redemption Price,
(d) that on the Redemption Date the Redemption Price will become due and
payable upon each Note to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date, and
(e) with respect to Notes other than those in global form, the place or
places where such Notes maturing after the Redemption Date are to be
surrendered for payment of the Redemption Price.
SECTION 11.4 DEPOSIT OF REDEMPTION PRICE.
In the case of any redemption pursuant to Section 11.1(b), the Trustee shall
transfer to the Payment Account at or before 3:00 p.m. on the Redemption Date
an amount of Cash from the Redemption Account sufficient to pay the Redemption
Price of the Notes to be redeemed.
SECTION 11.5 NOTES PAYABLE ON REDEMPTION DATE.
If notice of a redemption pursuant to Section 11.1(b) shall have been given
as aforesaid, the Notes subject to redemption shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless the Issuer shall default in the payment of the
Redemption Price) such Notes
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shall cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Issuer at the
Redemption Price; PROVIDED, HOWEVER, that principal and interest on the Notes
which have a Maturity Date on or prior to the Redemption Date shall be payable
to the Holders of such Notes, or one or more Predecessor Notes, as of the close
of business on the relevant Record Dates according to their terms and the
provisions of this Indenture.
If any such Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Note.
SECTION 11.6 NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be surrendered at the
Corporate Trust Office or such other office designated by the Trustee (with, if
the Issuer or the Trustee so requires, due endorsement by, or written
instrument of transfer in form satisfactory to the Issuer or the Trustee, as
applicable, duly executed by, the Holder thereof or an attorney for the Holder
duly authorized in writing), and the Issuer shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Notes so surrendered.
In the event of a redemption of the Notes in part, the Issuer shall not be
required (i) to register the transfer of or to exchange any Note during a
period beginning at the opening of business fifteen (15) days before, and
continuing until, the date notice is given identifying the Notes to be
redeemed, or (ii) to register the transfer or exchange of any Note, or portion
thereof, called for redemption, or (iii) to exchange any Note called for
redemption, except for a Note of like aggregate principal amount which is
simultaneously surrendered for redemption.
SECTION 11.7 HOLDERS' REDEMPTION RIGHT.
(a) Each Holder of Notes shall have the right (the "REDEMPTION RIGHT") to
require the Issuer to redeem such Holder's Notes on the 90th day after the
Closing Date at a Redemption Price equal to 60.91% of the principal amount
thereof, without interest, provided that the Redemption Right shall not apply
to any Note to the extent that (i) it was issued pursuant to a Shareholder Note
Purchase Right; (ii) it is not held on the Redemption Date by the Holder to
which it was originally issued; or (iii) the Holder thereof shall not have
certified to the Redemption Agent in the manner set forth in Section 11.7(b)
the matters described therein. Notwithstanding the foregoing, at the Issuer's
option, the Issuer may designate another Person or Persons pursuant to Section
11.7(d) to fulfill its redemption obligation by the designee's payment of the
required funds in exchange for the Notes to be redeemed pursuant to the
Redemption Right.
(b) In order for a Note to be redeemed pursuant to the Redemption Right on
the Redemption Date, the Redemption Agent must have received a duly completed
Election Form before 5:00 p.m. on the 80th day after the Closing Date, at the
address specified thereon, on which the Holder (or the DTC participant through
which the Notes are held, if the Notes are in the form of a Global Note) has
elected to exercise the Redemption Right in respect of such Note on behalf of
its beneficial owner and such beneficial owner has certified that:
(i) no beneficial interest in the Note has been transferred, either
directly or indirectly, after the Closing Date;
(ii) the Note was not issued pursuant to a Shareholder Note Purchase
Right; and
(iii) with respect to each owner of a beneficial interest in such Note,
the Redemption Right has been exercised for all Notes or beneficial
interests in Notes owned by such owner eligible for redemption pursuant to
the Redemption Right.
86
Any such Election Form received by the Redemption Agent shall be irrevocable.
All questions as to the validity, eligibility (including time of receipt) and
acceptance of the Notes for payment shall be determined by the Redemption
Agent, whose determination shall be final and binding.
(c) The Issuer shall deposit (or shall cause any other Person or Persons
designated pursuant to Section 11.7(d) to deposit), on or before 11:00 a.m. on
the date that is two Business Days prior to the Redemption Date, an amount with
the Redemption Agent sufficient to make payment of the Redemption Price to
Holders of all the Notes with respect to which the Redemption Right was
exercised. Upon surrender of any such Notes for repurchase in accordance with
the procedures printed on the Election Form, the Redemption Agent shall make
payment of the Redemption Price in respect of such Notes on the Redemption
Date, to the account or accounts designated by such Holders.
(d) At its option, the Issuer may designate, by written notice to the
Redemption Agent prior to the Redemption Date, one or more other Persons, which
may include one or more affiliates of the Issuer, to fulfill its redemption
obligation by the designee's payment of the required funds in exchange for the
Notes to be redeemed pursuant to the Redemption Right. If the Issuer designates
GGC or an affiliate of GGC pursuant to the preceding sentence, then GGC or its
affiliate may in turn designate, by written notice to the Issuer and the
Redemption Agent prior to the Redemption Date, one or more Persons to fulfill
such redemption obligation. The Registrar shall register the transfer of any
Notes that are redeemed pursuant to this Section 11.7(d) by a Person other than
the Issuer. For the avoidance of doubt, the interest accrued prior to the
Redemption Date on such redeemed Notes shall be for the benefit of the Holder
or Holders of such Notes on the Regular Record Date for the next Payment Date.
(e) Any Note which is to be redeemed pursuant to this Section 11.7 shall be
surrendered at an office designated by the Redemption Agent (with, if the
Issuer or the Redemption Agent so requires, due endorsement by, or written
instrument of transfer in form satisfactory to the Issuer or the Redemption
Agent, as applicable, duly executed by, the Holder thereof or an attorney for
the Holder duly authorized in writing). If the Redemption Agent determines that
such Note has been validly submitted for redemption in accordance with this
Section 11.7, it shall deliver such Note to the Trustee together with a
statement specifying the amount of any unredeemed portion of such Note and any
portion of the principal of such Note which is being acquired by a person
designated pursuant to Section 11.7(d). If on the Redemption Date the Notes are
in the form of a single Global Note, the Issuer shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to the sum of and in
exchange for any unredeemed portion of the principal of the Notes so
surrendered and any portion of the principal of the Notes surrendered to the
Redemption Agent and accepted for redemption pursuant to Section 11.7(b) the
beneficial ownership of which is being acquired by a person designated pursuant
to Section 11.7(d). If on the Redemption Date the Notes are no longer in the
form of a single Global Note, the Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder of any Note delivered to the Trustee
pursuant to this Section 11.7(e), without service charge, a new Note or Notes,
of any authorized denomination as requested by such Holder, in an aggregate
principal amount equal to and in exchange for any unredeemed portion of the
principal of the Notes so surrendered, and shall deliver to the Person or
Persons designated pursuant to Section 11.7(d) a New Note or Notes of any
authorized denomination requested by such Person or Persons, in an aggregate
principal amount equal to the principal amount of redeemed Notes acquired by
such Person or Persons.
(f) In the event that any Person designated pursuant to Section 11.7(d)
shall fail to make the payment described in Section 11.7(c), the Issuer shall
make the required payment to the Redemption Agent in accordance with Section
11.7(c) and shall redeem the related Notes on the Redemption Date as if such
Person had not been designated.
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ARTICLE XII
MEETINGS OF HOLDERS OF NOTES
SECTION 12.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Notes may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Notes as required by
Section 1.3.
SECTION 12.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Notes for any
purpose specified in Section 12.1, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of Holders of Notes, setting forth the time and place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given by the Trustee to each Holder of Notes and the Issuer,
in the manner provided in Sections 1.5 and 1.6, not less than 10 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Issuer or the Holders of at least 10% in
principal amount of the Outstanding Notes shall have requested the Trustee to
call a meeting of the Holders of Notes for any purpose specified in Section
12.1, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 10 days after receipt of such
request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer or the Holders of Notes in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection
(a) of this Section.
SECTION 12.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders a Person shall (a) be a
Holder of one or more Notes or (b) be a Person appointed by an instrument in
writing as proxy by a Holder of one or more Notes. The only Persons who shall
be entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Issuer and its legal and financial advisers. Notwithstanding the foregoing, the
Issuer is not entitled to vote any Notes of which it may be the Holder.
SECTION 12.4 QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Notes shall constitute a quorum for a meeting of Holders of Notes.
In the absence of a quorum within 60 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Notes, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than ten (10) days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than ten (10) days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 12.2, except
that such notice need be given only once not less than five (5) days prior to
the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Notes that shall
constitute a quorum.
Except as limited by the proviso to the first paragraph of Section 9.2, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the
88
affirmative vote of the Majority Holders PROVIDED that, except as limited by
the proviso to the first paragraph of Section 9.2, any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other action that this Indenture expressly provides may be made, given or taken
by the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Notes may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Notes.
Any resolution passed or decision taken at any meeting of Holders of Notes
duly held in accordance with this Section shall be binding on all the Holders
of such Notes, whether or not present or represented at the meeting.
Notwithstanding any provision of this Indenture or any other Security
Document to the contrary, Servicer shall not be required to take any action or
refrain from taking any action hereunder or thereunder at the direction of the
Holders that would cause it to violate the Servicing Standards.
SECTION 12.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Notes in regard to proof of the holding of Notes and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 1.3 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint as chairman of
the meeting the Holder of the greatest principal amount in aggregate of the
Outstanding Notes represented at the meeting, unless the meeting shall have
been called by the Issuer or by Holders of Notes as provided in Section
12.2(b), in which case the Issuer or the Holders of Notes calling the meeting,
as the case may be, shall in like manner appoint a chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Notes represented at the meeting.
(c) At any meeting each Holder of a Note or proxy shall be entitled to one
vote for each $100 principal amount of the Outstanding Notes held or
represented by such Holder; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect of any Note challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Note or of a proxy.
(d) Any meeting of Holders of Notes duly called pursuant to Section 12.2 at
which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the Outstanding Notes
represented at the meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 12.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of Notes
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Notes or their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Notes shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more
89
Persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in Section 12.2 and,
if applicable, Section 12.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
SOUTHWEST SHOPPING CENTERS CO.
II, L.L.C.,
a Delaware limited liability
company
By: -----------------------------
Name:
Title: Authorized Signatory
THE BANK OF NEW YORK,
as Trustee
By: -----------------------------
Name:
Title:
ARCHON GROUP, L.P.,
as Servicer
By: -----------------------------
Name:
Title:
ARCHON GROUP, L.P.,
as Special Servicer
By: -----------------------------
Name:
Title:
90
EXHIBIT A
[FORM OF NOTE]
THIS NOTE REPRESENTS AN OBLIGATION OF THE ISSUER SECURED BY THE COLLATERAL
(AS DEFINED IN THE INDENTURE (AS DEFINED HEREIN)) AND THE HOLDER HEREOF SHALL
HAVE NO RECOURSE AGAINST ANY PERSON OTHER THAN THE ISSUER. THIS NOTE DOES NOT
REPRESENT AN OBLIGATION OF OR INTEREST IN THE TRUSTEE, THE SERVICER, THE
SPECIAL SERVICER OR ANY OF THEIR RESPECTIVE AFFILIATES. THE NOTES ARE NOT
INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY THE
ISSUER, THE TRUSTEE, THE SERVICER, THE SPECIAL SERVICER OR ANY OF THEIR
RESPECTIVE AFFILIATES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO
HEREIN. THIS GLOBAL NOTE MAY NOT BE EXCHANGED, IN WHOLE OR IN PART, FOR A NOTE
REGISTERED IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES SET FORTH IN THE INDENTURE. BENEFICIAL
INTERESTS IN THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH
THE INDENTURE./1/
THIS NOTE WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN A
GLOBAL NOTE UNLESS THE HOLDER OF THIS NOTE, SUBSEQUENT TO SUCH EXCHANGE, WILL
HOLD A MINIMUM AGGREGATE BENEFICIAL INTEREST IN SUCH GLOBAL NOTE OF AT LEAST
ONE HUNDRED DOLLARS ($100).
X-0
XXXXXXXXX XXXXXXXX XXXXXXX XX. XX, X.X.X.
SECURED NOTES, SERIES 2002-SSCC,
DUE MAY 30, 2010
Base Interest Rate: 11% No.:
First Payment Date: January 6, 2003 Scheduled Maturity Date: May 31, 2010
Original principal balance of all Notes: Initial principal balance of this Note: $20,000,000
CUSIP: 00000XXX0 ISIN: US84522VAA26
Common Code:
Southwest Shopping Centers Co. II., L.L.C. (herein called the "Issuer"), for
value received, hereby promises to pay in lawful currency of the United States
to Cede & Co., or registered assigns, the principal sum of Twenty Million
Dollars (U.S.$20,000,000) as provided in the Indenture, and to pay interest
thereon in arrears on a semi-annual basis two business days after the first
business day of January and July, respectively, commencing January 6, 2003
(each a "Payment Date"), from the date hereof until the Maturity Date. The
interest payable on this Note for the period from the date of issuance to, but
not including, the Maturity Date shall be the Base Interest Rate (as defined in
the Indenture) for the Notes.
The interest so payable, and punctually paid or duly provided for, on any
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such Payment Date, which shall be the
Business Day immediately prior to the related Payment Date. Interest shall be
calculated on the basis of a 360-day year and the actual number of days elapsed
during each Interest Period (as defined in the Indenture). On the Maturity
Date, the Issuer shall pay in full all of the remaining obligations of the
Issuer under this Note, the Indenture and the other Security Documents to which
the Issuer is a party.
If, (i) any Note is not paid in full on or before the Maturity Date, (ii)
any payment due on a Payment Date has not been provided for in full (including
by deposit in the Collection Account) by the Issuer or before the second
Business Day prior to the date that such payment is due (as such due date may
be extended by the applicable grace period, if any) or (iii) the Redemption
Price in respect of all Notes to be redeemed pursuant to a redemption is not
paid in full on or before a Redemption Date, the Issuer will be required to pay
interest at the Default Rate as set forth in Section 3.11(d) of the Indenture.
The Holders shall also be entitled to receive as additional interest on each
Payment Date any amounts received by the Issuer by way of Exit Fee or late
payment charges under the Mortgage Security Documents or the Mezzanine Security
Documents, as defined in the Indenture, during the immediately preceding
Interest Period.
At the Maturity Date, the Trustee shall pay the principal amount of the
Note, and any unpaid interest thereon in immediately available funds from funds
in the Payment Account as promptly as possible after presentation to the
Trustee of such Note but shall initiate such payment no later than 3:00 p.m.
(New York time) on the day of such presentation, PROVIDED that such
presentation has been made no later than 11:00 a.m. (New York time). If
presentation is made after 11:00 a.m. (New York time) on any day, such
presentation shall be deemed to have been made not later than 11:00 a.m. (New
York time) on the immediately succeeding Business Day.
If an Event of Default occurs and is continuing, then in every such case the
Special Servicer may to the extent consistent with the Servicing Standards
(subject to the rights of the Majority Holders set forth in Section 5.12(a) of
the Indenture) and at the direction of the Majority Holders shall, by a notice
in writing to the Issuer and the Trustee, declare the sum of (i) the principal
amount of all Outstanding Notes and (ii) any other amounts, including but not
limited to, accrued interest payable to the Holders under the Notes, to the
extent such amounts are permitted by law to be paid, to be due and payable
immediately, and upon any such declaration such amounts shall become
immediately due and payable.
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This Note is one of a duly authorized issue of securities of the Issuer
(herein called the "Notes") designated as specified in the title hereof, issued
and to be issued in accordance with the Indenture and Servicing Agreement,
dated as of [ ], 2002 (herein called the "Indenture"), among the
Issuer, The Bank of New York, as Trustee (herein called the "Trustee", which
term includes any successors and any separate or co-trustee under the
Indenture), Archon Group, L.P., as Special Servicer and Archon Group, L.P., as
Servicer, copies of which Indenture are on file and available for inspection at
the corporate trust office of the Trustee at 0 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, XX 00000. Reference is hereby made to the Indenture and all
indentures supplemental thereto for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee, the Special Servicer, the Servicer and the Holders of Notes. All
capitalized terms used but not defined herein shall have the meanings specified
in the Indenture.
The Holder of this Note may receive distributions only in the manner and
subject to the priorities as provided in the Indenture.
The Holder of this Note shall have the right (the "Redemption Right") to
require the Issuer to redeem this Note on the 90th day after the Closing Date
at a price of 60.91% of the principal amount hereof, without interest, PROVIDED
that the Redemption Right shall not apply to this Note to the extent that (i)
it was issued pursuant to a Shareholder Note Purchase Right; (ii) it is not
held on the Redemption Date by the Holder to which it was originally issued; or
(iii) the Holder thereof shall not have certified to the Redemption Agent in
the manner set forth in Section 11.7(b) of the Indenture the matters described
therein relating to the beneficial ownership of such Note. For the avoidance of
doubt, if the Redemption Right is exercised with respect to this Note and it is
repurchased by a designee of the Issuer, the interest accrued to the Redemption
Date on this Note will be for the benefit of the Holder or Holders of this Note
on the Regular Record Date for the subsequent Payment Date. The Issuer may
designate another Person or Persons to fulfill its redemption obligation with
respect to any Note to be redeemed pursuant to a Redemption Right, by the
designee's payment of the required funds in exchange for such Note. The
Indenture sets forth the conditions for and manner of exercise of the
Redemption Right.
The Notes shall also be subject to redemption as set forth in writing to the
Trustee on any Payment Date or any other date fixed for redemption in
accordance with Article XI of the Indenture, in whole or in part, as provided
in Section 11.1(b) of the Indenture. However, no Notes may be redeemed unless
and until all other amounts then due and payable to the Trustee, the Special
Servicer and the Servicer under the Indenture and the other Security Documents
have been paid in full.
Notice of a redemption of any Notes pursuant to Section 11.1(b) will be
given no later than fifteen (15) days prior to the proposed redemption date for
such Notes. Such notice shall specify, among other things, the redemption date,
the redemption price and (if less than all Notes are to be redeemed) the
principal amount of the Notes to be redeemed.
In the event that this Note is redeemed in part only, a New Note for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
As more fully described in the Indenture, this Note is secured by the
Indenture Collateral. The Indenture constitutes a security agreement under the
Uniform Commercial Code as in effect in the states where the Payment Account,
the Collection Account, the Holdover Account and any other similar account
established by the Trustee or the Servicer in furtherance of its rights or
responsibilities under the Indenture or any other Security Document are located
(with respect to the liens and security interests granted in Section 3.1(c) of
the Indenture). Upon the occurrence of any Event of Default, and in addition to
any other rights available under the Indenture, the Security Documents or any
other instruments included in the Collateral or otherwise available at law or
in equity, the Trustee shall have all rights and remedies of a secured party
under the Uniform Commercial Code to enforce the assignments and security
interests contained in the Indenture and, in addition, shall have the right,
subject to compliance with any mandatory requirements of applicable law, to
sell at public or private sale or apply, as appropriate, all monies or other
property then on deposit in the Payment Account, the Collection
A-3
Account, the Holdover Account and any other similar account established by the
Trustee or the Servicer in furtherance of its rights or responsibilities under
the Indenture or any other Security Document and any other rights and other
interests assigned or pledged hereby in accordance with the terms of the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof or the modification of the rights and obligations of the
Issuer and the rights of the Holders of Notes under the Indenture at any time
by the Issuer, the Special Servicer, the Servicer and the Trustee with the
consent of Majority Holders. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the Notes
at the time Outstanding, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consents or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in the Indenture and subject to the limitations therein set
forth, the transfer of this Note is registrable in the Register, upon surrender
of this Note for registration of transfer at the Corporate Trust Office, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Registrar duly executed by, the Holder
hereof or his or her attorney duly authorized in writing, and thereupon one or
more New Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
Prior to due presentation of this Note for registration of transfer, the
Issuer, the Servicer, the Trustee and any agent of the Issuer, the Servicer or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof, for all purposes, whether or not this Note be overdue, and none
of the Issuer, the Servicer, the Trustee or any such agent shall be affected by
notice to the contrary.
The agreements contained herein shall remain in full force and effect
notwithstanding any changes in the members or other equity owners of, or the
officers and directors relating to, the Issuer, and the term "Issuer" as used
herein, shall include any alternate or successor Person.
The Issuer and all others who may become liable for the payment of all or
any part of the amounts due under this Note do hereby severally waive
presentment and demand for payment, notice of dishonor, protest, notice of
protest and non-payment and all other notices of any kind, except those
expressly required under the Indenture and the other Security Documents. No
notice to or demand on the Issuer or any other Person shall be deemed to be a
waiver of the obligation of the Issuer or the Servicer to take further action
without notice or demand as permitted in this Note, the Indenture and the other
Security Documents.
It is not intended that, and none of the terms and conditions of the
Indenture or the other Security Documents shall ever be construed to create a
contract whereby, the Issuer or any guarantor, endorser or other party now or
hereafter becoming liable for payment of this Note shall be required to pay
interest on this Note at a rate in excess of the maximum interest that may be
lawfully charged under applicable law.
The representations, undertakings, covenants and agreements of the Issuer
contained in the Indenture are those of the Issuer only and not of the Trustee,
the Special Servicer or the Servicer and neither the Trustee, the Special
Servicer nor the Servicer will have any liability with respect thereto.
As provided in Section 1.14 of the Indenture, this Note is an obligation of
the Issuer secured only by the Collateral and the holder hereof shall no
recourse against any person other than the Issuer. The provisions of Section
1.14 of the Indenture are hereby incorporated by reference, as if set forth in
full herein.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
A-4
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[The remainder of this page was intentionally left blank]
A-5
IN WITNESS WHEREOF, the undersigned have caused this instrument to be duly
executed.
Dated: _________________________________________________________ , ____
SOUTHWEST SHOPPING CENTERS CO.
II, L.L.C., a Delaware limited
liability company
By: -----------------------------
Name:
Title: Authorized Signatory
TRUSTEE CERTIFICATE OF AUTHENTIFICATION
This Note is one of the Notes referred to in the above-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: -----------------------------
Name:
Title:
A-6
REPAYMENT OF PRINCIPAL, IF ANY, AND
TRANSFERS AFFECTING THE NOTE
(Initial Principal Balance on ________ __, ____: $______)
AMOUNT OF REPAYMENT OR
TRANSFER TO OR FROM DATE OF REPAYMENT OR BALANCE AFTER REPAYMENT
ANOTHER NOTE TRANSFER OR TRANSFER NOTATION MADE BY:
--------------------------------------------------------------------------------------------------
(Add Additional Sheets As Necessary)
A-7
EXHIBIT B
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned ("Assignor(s)") hereby sell(s),
assign(s) and transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name(s) and address(es), including postal zip
code(s) of assignee(s)) ("Assignee(s)") the entire principal amount represented
by the within Note and hereby authorizes the registration of transfer of such
interest to Assignee(s) on the Register for the Notes.
I (we) further direct the Registrar to issue a new Note of the entire
principal amount represented by the within Note to the above-named Assignee(s)
and to deliver such Note to the following address:
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Date:
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Signature by or on behalf of
Assignor(s)
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Taxpayer Identification Number
B-1
EXHIBIT C
LIST OF AUTHORIZED PERSONS
Name: Xxxx Xxxxxxxx
Title: Manager
C-1
EXHIBIT D
REQUEST FOR RELEASE OF DOCUMENTS
The undersigned [Servicer] [Special Servicer] hereby acknowledges that it
has received on behalf of [ ], as Trustee for the Holders of Notes issued
pursuant to that certain Indenture and Servicing Agreement, dated as of
[ ], 2002 (the "INDENTURE"), among Southwest Shopping Centers Co. II.,
L.L.C, as Issuer, The Bank of New York, as Trustee, Archon Group, L.P., as
Special Servicer and Archon Group, L.P., as Servicer, the documents referred to
below (the "DOCUMENTS"). All capitalized terms not otherwise defined in this
Request for Release of Documents shall have the meanings given them in the
Indenture.
[Identify documents]
The undersigned [Servicer] [Special Servicer] hereby acknowledges and agrees
as follows:
(1) The [Servicer] [Special Servicer] will hold and retain possession of
the Documents in trust for the benefit of the Trustee, solely for the
purposes provided in the Indenture.
(2) The [Servicer] [Special Servicer] will not cause or permit the
Documents to become subject to, or encumbered by, any claims, liens,
security interests, charges, writs of attachment or other impositions, nor
shall the Servicer assert or seek to assert any claims or rights of set-off
to or against the Documents or any proceeds thereof.
(3) The [Servicer] [Special Servicer] shall return the Documents to the
Custodian when the need therefor no longer exists, unless the Note
Indebtedness has been liquidated and the proceeds thereof have been remitted
to the Collection Account as expressly provided in the Indenture.
(4) The Documents and any proceeds thereof, including any proceeds of
proceeds, coming into the possession or control of the Servicer at all times
shall be earmarked for the account of the Trustee and the [Servicer]
[Special Servicer] shall keep the Documents and any proceeds separate and
distinct from all other property in the [Servicer's] [Special Servicer's]
possession.
____________________________ ,
as [Servicer] Special Servicer
By: __________________________
Name:
Title:
Dated: ______________________________ , 20__
D-1
