ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LTD., as Issuer, ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC, as Co-Issuer, ARBOR REALTY SR, INC., as Advancing Agent AND U.S. BANK NATIONAL ASSOCIATION, as Trustee, Paying Agent,...
Exhibit 10.41
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Execution Version
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ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD.,
as Issuer,
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ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC,
as Co-Issuer,
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ARBOR REALTY SR,Β INC.,
as Advancing Agent
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AND
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee, Paying Agent, Calculation Agent, Transfer Agent,
Custodial Securities Intermediary, Backup Advancing Agent and Notes Registrar
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INDENTURE
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Dated as of JanuaryΒ 28, 2013
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TABLEΒ OFΒ CONTENTS |
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ARTICLEΒ 1 |
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DEFINITIONS |
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SectionΒ 1.1 |
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Definitions |
3 | |
SectionΒ 1.2 |
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Assumptions as to Assets |
38 | |
SectionΒ 1.3 |
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Interest Calculation Convention |
39 | |
SectionΒ 1.4 |
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Rounding Convention |
39 | |
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ARTICLEΒ 2 |
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THE NOTES |
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SectionΒ 2.1 |
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Forms Generally |
40 | |
SectionΒ 2.2 |
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Forms of Notes and Certificate of Authentication |
40 | |
SectionΒ 2.3 |
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Authorized Amount; Stated Maturity Date; and Denominations |
41 | |
SectionΒ 2.4 |
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Execution, Authentication, Delivery and Dating |
42 | |
SectionΒ 2.5 |
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Registration, Registration of Transfer and Exchange |
43 | |
SectionΒ 2.6 |
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Mutilated, Defaced, Destroyed, Lost or Stolen Note |
49 | |
SectionΒ 2.7 |
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Payment of Principal and Interest and Other Amounts; Principal and Interest Rights Preserved |
50 | |
SectionΒ 2.8 |
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Persons Deemed Owners |
54 | |
SectionΒ 2.9 |
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Cancellation |
54 | |
SectionΒ 2.10 |
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Global Securities; Definitive Notes; Temporary Notes |
54 | |
SectionΒ 2.11 |
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U.S. Tax Treatment of Notes and the Issuer |
56 | |
SectionΒ 2.12 |
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Authenticating Agents |
56 | |
SectionΒ 2.13 |
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Forced Sale on Failure to Comply with Restrictions |
57 | |
SectionΒ 2.14 |
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No Gross Up |
58 | |
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ARTICLEΒ 3 |
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CONDITIONS PRECEDENT; PLEDGED LOAN OBLIGATIONS |
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SectionΒ 3.1 |
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General Provisions |
58 | |
SectionΒ 3.2 |
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Security for Notes |
61 | |
SectionΒ 3.3 |
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Transfer of Assets |
63 | |
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ARTICLEΒ 4 |
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SATISFACTION AND DISCHARGE |
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SectionΒ 4.1 |
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Satisfaction and Discharge of Indenture |
70 |
SectionΒ 4.2 |
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Application of Amounts held in Trust |
72 |
SectionΒ 4.3 |
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Repayment of Amounts Held by Paying Agent |
72 |
SectionΒ 4.4 |
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Limitation on Obligation to Incur Company Administrative Expenses |
73 |
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ARTICLEΒ 5 |
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REMEDIES |
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SectionΒ 5.1 |
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Events of Default |
73 |
SectionΒ 5.2 |
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Acceleration of Maturity; Rescission and Annulment |
75 |
SectionΒ 5.3 |
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Collection of Indebtedness and Suits for Enforcement by Trustee |
77 |
SectionΒ 5.4 |
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Remedies |
79 |
SectionΒ 5.5 |
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Preservation of Assets |
81 |
SectionΒ 5.6 |
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Trustee MayΒ Enforce Claims Without Possession of Notes |
82 |
SectionΒ 5.7 |
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Application of Amounts Collected |
83 |
SectionΒ 5.8 |
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Limitation on Suits |
83 |
SectionΒ 5.9 |
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Unconditional Rights of Noteholders to Receive Principal and Interest |
83 |
SectionΒ 5.10 |
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Restoration of Rights and Remedies |
84 |
SectionΒ 5.11 |
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Rights and Remedies Cumulative |
84 |
SectionΒ 5.12 |
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Delay or Omission Not Waiver |
84 |
SectionΒ 5.13 |
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Control by the Controlling Class |
84 |
SectionΒ 5.14 |
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Waiver of Past Defaults |
85 |
SectionΒ 5.15 |
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Undertaking for Costs |
85 |
SectionΒ 5.16 |
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Waiver of Stay or Extension Laws |
86 |
SectionΒ 5.17 |
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Sale of Assets |
86 |
SectionΒ 5.18 |
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Action on the Notes |
87 |
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ARTICLEΒ 6 |
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THE TRUSTEE |
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SectionΒ 6.1 |
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Certain Duties and Responsibilities |
87 |
SectionΒ 6.2 |
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Notice of Default |
89 |
SectionΒ 6.3 |
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Certain Rights of Trustee |
90 |
SectionΒ 6.4 |
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Not Responsible for Recitals or Issuance of Notes |
92 |
SectionΒ 6.5 |
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MayΒ Hold Notes |
92 |
SectionΒ 6.6 |
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Amounts Held in Trust |
92 |
SectionΒ 6.7 |
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Compensation and Reimbursement |
92 |
SectionΒ 6.8 |
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Corporate Trustee Required; Eligibility |
94 |
SectionΒ 6.9 |
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Resignation and Removal; Appointment of Successor |
94 |
SectionΒ 6.10 |
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Acceptance of Appointment by Successor |
96 |
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SectionΒ 6.11 |
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Merger, Conversion, Consolidation or Succession to Business of Trustee |
96 |
SectionΒ 6.12 |
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Co-Trustees and Separate Trustee |
96 |
SectionΒ 6.13 |
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Certain Duties of Trustee Related to Delayed Payment of Proceeds |
98 |
SectionΒ 6.14 |
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Representations and Warranties of the Trustee |
98 |
SectionΒ 6.15 |
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Requests for Consents |
99 |
SectionΒ 6.16 |
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Withholding |
99 |
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ARTICLEΒ 7 |
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COVENANTS |
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SectionΒ 7.1 |
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Payment of Principal and Interest |
100 |
SectionΒ 7.2 |
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Maintenance of Office or Agency |
100 |
SectionΒ 7.3 |
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Amounts for Note Payments to be Held in Trust |
101 |
SectionΒ 7.4 |
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Existence of the Issuer and Co-Issuer |
103 |
SectionΒ 7.5 |
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Protection of Assets |
105 |
SectionΒ 7.6 |
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Notice of Any Amendments |
106 |
SectionΒ 7.7 |
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Performance of Obligations |
106 |
SectionΒ 7.8 |
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Negative Covenants |
107 |
SectionΒ 7.9 |
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Statement as to Compliance |
109 |
SectionΒ 7.10 |
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Issuer and Co-Issuer MayΒ Consolidate or Merge Only on Certain Terms |
110 |
SectionΒ 7.11 |
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Successor Substituted |
113 |
SectionΒ 7.12 |
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No Other Business |
113 |
SectionΒ 7.13 |
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Reporting |
113 |
SectionΒ 7.14 |
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Calculation Agent |
114 |
SectionΒ 7.15 |
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REIT Status |
115 |
SectionΒ 7.16 |
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Permitted Subsidiaries |
115 |
SectionΒ 7.17 |
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Repurchase Requests |
116 |
SectionΒ 7.18 |
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Purchase of Additional Loan Obligations |
117 |
SectionΒ 7.19 |
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Portfolio Finalization Date Actions |
117 |
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ARTICLEΒ 8 |
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SUPPLEMENTAL INDENTURES |
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SectionΒ 8.1 |
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Supplemental Indentures Without Consent of Securityholders |
118 |
SectionΒ 8.2 |
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Supplemental Indentures with Consent of Securityholders |
121 |
SectionΒ 8.3 |
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Execution of Supplemental Indentures |
123 |
SectionΒ 8.4 |
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Effect of Supplemental Indentures |
124 |
SectionΒ 8.5 |
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Reference in Notes to Supplemental Indentures |
124 |
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ARTICLEΒ 9 |
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REDEMPTION OF SECURITIES; REDEMPTION PROCEDURES |
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SectionΒ 9.1 |
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Clean-up Call; Tax Redemption and Optional Redemption |
124 |
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SectionΒ 9.2 |
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Notice of Redemption |
126 |
SectionΒ 9.3 |
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Notice of Redemption or Maturity by the Issuer |
126 |
SectionΒ 9.4 |
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Notes Payable on Redemption Date |
127 |
SectionΒ 9.5 |
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Mandatory Redemption |
127 |
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ARTICLEΒ 10 |
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ACCOUNTS, ACCOUNTINGS AND RELEASES |
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SectionΒ 10.1 |
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Collection of Amounts; Custodial Account |
127 |
SectionΒ 10.2 |
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Collection Accounts |
128 |
SectionΒ 10.3 |
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Payment Account |
130 |
SectionΒ 10.4 |
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Unused Proceeds Account |
131 |
SectionΒ 10.5 |
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Reserved |
131 |
SectionΒ 10.6 |
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RDD Funding Account |
131 |
SectionΒ 10.7 |
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Expense Account |
132 |
SectionΒ 10.8 |
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Reserved |
133 |
SectionΒ 10.9 |
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Interest Advances |
133 |
SectionΒ 10.10 |
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Reports by Parties |
136 |
SectionΒ 10.11 |
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Reports; Accountings |
137 |
SectionΒ 10.12 |
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Release of Loan Obligations; Release of Assets |
142 |
SectionΒ 10.13 |
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Reports by Independent Accountants |
144 |
SectionΒ 10.14 |
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Reports to Rating Agency |
144 |
SectionΒ 10.15 |
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Certain Procedures |
145 |
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ARTICLEΒ 11 |
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APPLICATION OF AMOUNTS |
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SectionΒ 11.1 |
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Disbursements of Amounts from Payment Account |
146 |
SectionΒ 11.2 |
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Securities Accounts |
150 |
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ARTICLEΒ 12 |
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SALE OF LOAN OBLIGATIONS |
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SectionΒ 12.1 |
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Sales of Loan Obligations |
150 |
SectionΒ 12.2 |
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Replacement Loan Obligations |
153 |
SectionΒ 12.3 |
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Conditions Applicable to all Transactions Involving Sale or Grant |
153 |
SectionΒ 12.4 |
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Modifications to Xxxxxβx Tests |
154 |
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ARTICLEΒ 13 |
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NOTEHOLDERSβ RELATIONS |
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SectionΒ 13.1 |
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Subordination |
155 |
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SectionΒ 13.2 |
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Standard of Conduct |
156 |
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ARTICLEΒ 14 |
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MISCELLANEOUS |
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SectionΒ 14.1 |
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FormΒ of Documents Delivered to the Trustee |
156 |
SectionΒ 14.2 |
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Acts of Securityholders |
157 |
SectionΒ 14.3 |
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Notices,Β etc., to the Trustee, the Issuer, the Co-Issuer, the Advancing Agent, the Loan Obligation Manager, the Placement Agent and the Rating Agency |
157 |
SectionΒ 14.4 |
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Notices to Noteholders; Waiver |
159 |
SectionΒ 14.5 |
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Effect of Headings and Table of Contents |
160 |
SectionΒ 14.6 |
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Successors and Assigns |
160 |
SectionΒ 14.7 |
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Severability |
160 |
SectionΒ 14.8 |
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Benefits of Indenture |
160 |
SectionΒ 14.9 |
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Governing Law |
160 |
SectionΒ 14.10 |
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Submission to Jurisdiction |
160 |
SectionΒ 14.11 |
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Counterparts |
161 |
SectionΒ 14.12 |
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Liability of Co-Issuers |
161 |
SectionΒ 14.13 |
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17g-5 Information |
161 |
SectionΒ 14.14 |
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Rating Agency Condition |
162 |
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ARTICLEΒ 15 |
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ASSIGNMENT OF LOAN OBLIGATION PURCHASE AGREEMENTS AND LOAN MANAGEMENT AGREEMENT |
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SectionΒ 15.1 |
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Assignment of Loan Obligation Purchase Agreements and the Loan Obligation Management Agreement |
163 |
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ARTICLEΒ 16 |
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CURE RIGHTS; PURCHASE RIGHTS; REPLACEMENT LOAN OBLIGATIONS |
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SectionΒ 16.1 |
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Reserved |
165 |
SectionΒ 16.2 |
Loan Obligation Purchase Agreements |
165 | |
SectionΒ 16.3 |
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Representations and Warranties Related to Replacement Loan Obligations |
165 |
SectionΒ 16.4 |
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Operating Advisor |
166 |
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ARTICLEΒ 17 |
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ADVANCING AGENT |
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SectionΒ 17.1 |
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Liability of the Advancing Agent |
166 |
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SectionΒ 17.2 |
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Merger or Consolidation of the Advancing Agent |
166 | ||
SectionΒ 17.3 |
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Limitation on Liability of the Advancing Agent and Others |
167 | ||
SectionΒ 17.4 |
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Representations and Warranties of the Advancing Agent |
167 | ||
SectionΒ 17.5 |
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Resignation and Removal; Appointment of Successor |
168 | ||
SectionΒ 17.6 |
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Acceptance of Appointment by Successor Advancing Agent |
169 | ||
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SCHEDULES |
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Schedule A |
Closing Date Loan Obligations |
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Schedule B |
LIBOR |
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Schedule C |
List of Authorized Officers of Loan Obligation Manager |
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EXHIBITS |
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ExhibitΒ A-1 |
FormΒ of ClassΒ A Senior Secured Floating |
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Rate Note (Global Security) |
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ExhibitΒ A-2 |
FormΒ of ClassΒ A Senior Secured Floating |
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Rate Note (Definitive Note) |
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ExhibitΒ B-1 |
FormΒ of ClassΒ B Secured Floating |
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Rate Note (Global Security) |
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ExhibitΒ B-2 |
FormΒ of ClassΒ B Secured Floating |
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Rate Note (Definitive Note) |
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ExhibitΒ C-1 |
FormΒ of Transfer Certificate β Regulation S Global Security |
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ExhibitΒ C-2 |
FormΒ of Transfer Certificate - RuleΒ 144A Global Security |
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ExhibitΒ C-3 |
FormΒ of Transfer Certificate - Definitive Note |
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ExhibitΒ D |
FormΒ of Trustee Report Regarding the Loan Obligation File |
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ExhibitΒ E |
FormΒ of Trust Receipt |
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ExhibitΒ F |
FormΒ of Request for Release |
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ExhibitΒ G |
FormΒ of NRSRO Certification |
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ExhibitΒ H |
FormΒ or Representations and Warranties For Loan Obligations |
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INDENTURE, dated as of JanuaryΒ 28, 2013, by and between ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD., an exempted company incorporated in the Cayman Islands with limited liability (the βIssuerβ), ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC, a limited liability company formed under the laws of Delaware (the βCo-Issuerβ), U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (herein, together with its permitted successors and assigns in the trusts hereunder, the βTrusteeβ), paying agent, calculation agent, transfer agent, custodial securities intermediary, backup advancing agent and notes registrar, and ARBOR REALTY SR,Β INC. (including any successor by merger, the βArbor Parentβ), a Maryland corporation, as advancing agent (herein, together with its permitted successors and assigns in the trusts hereunder, the βAdvancing Agentβ).
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PRELIMINARY STATEMENT
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Each of the Issuer and the Co-Issuer is duly authorized to execute and deliver this Indenture to provide for the Notes issuable as provided in this Indenture.Β All covenants and agreements made by the Issuer and Co-Issuer herein are for the benefit and security of the Secured Parties.Β The Issuer, the Co-Issuer, U.S. Bank National Association, in all of its capacities, and the Advancing Agent are entering into this Indenture, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
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All things necessary to make this Indenture a valid agreement of the Issuer and Co-Issuer in accordance with this Indentureβs terms have been done.
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GRANTING CLAUSES
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The Issuer hereby Grants to the Trustee, for the benefit and security of the Secured Parties, all of its right, title and interest in, to and under, in each case, whether now owned or existing, or hereafter acquired or arising:
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(a)Β Β Β Β Β Β Β Β Β Β the Loan Obligations listed in the Schedule of Closing Date Loan Obligations which the Issuer purchases on the Closing Date and causes to be delivered to the Trustee (directly or through an agent or bailee) herewith, all payments thereon or with respect thereto and all Loan Obligations which are delivered to the Trustee (directly or through an agent or bailee) after the Closing Date pursuant to the terms hereof (including all Additional Loan Obligations and Replacement Loan Obligations) and all payments thereon or with respect thereto,
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(b)Β Β Β Β Β Β Β Β Β Β the Collection Accounts, the Payment Account, the Expense Account, the Unused Proceeds Account, the RDD Funding Account, the Custodial Account and the related security entitlements and all income from the investment of funds in any of the foregoing at any time credited to any of the foregoing accounts,
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(c)Β Β Β Β Β Β Β Β Β Β the Eligible Investments,
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(d)Β Β Β Β Β Β Β Β Β Β the rights of the Issuer under the Loan Obligation Management Agreement, each Loan Obligation Purchase Agreement (including any Loan Obligation Purchase Agreement entered into after the Closing Date) and the Servicing Agreement,
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(e)Β Β Β Β Β Β Β Β Β Β all amounts delivered to the Trustee (or its bailee) (directly or through a securities intermediary),
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(f)Β Β Β Β Β Β Β Β Β Β Β all other investment property, instruments and general intangibles in which the Issuer has an interest, other than the Excepted Assets,
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(g)Β Β Β Β Β Β Β Β Β Β the Issuerβs ownership interest in, and rights to, all Permitted Subsidiaries and
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(h)Β Β Β Β Β Β Β Β Β Β all proceeds with respect to the foregoing clauses (a)Β through (g).
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The collateral described in the foregoing clauses (a)Β through (h), with the exception of any Excepted Assets, is referred to herein as the βAssets.βΒ Such Grants are made to secure the Notes equally and ratably without prejudice, priority or distinction between any Note and any other Note for any reason, except as expressly provided in this Indenture (including, but not limited to, the Priority of Payments) and to secure (i)Β the payment of all amounts due on and in respect of the Notes in accordance with their terms, (ii)Β the payment of all other sums payable under this Indenture and (iii)Β compliance with the provisions of this Indenture, all as provided in this Indenture.Β The foregoing Grant shall, for the purpose of determining the property subject to the lien of this Indenture, be deemed to include any securities and any investments granted by or on behalf of the Issuer to the Trustee for the benefit of the Secured Parties, whether or not such securities or such investments satisfy the criteria set forth in the definitions of βLoan Obligationβ or βEligible Investment,β as the case may be.
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Except to the extent otherwise provided in this Indenture, this Indenture shall constitute a security agreement under the laws of the State of New York applicable to agreements made and to be performed therein, for the benefit of the Noteholders.Β Upon the occurrence and during the continuation of any Event of Default hereunder, and in addition to any other rights available under this Indenture or any other Assets held for the benefit and security of the Noteholders or otherwise available at law or in equity but subject to the terms hereof, the Trustee shall have all rights and remedies of a secured party on default under the laws of the State of New York and other applicable law to enforce the assignments and security interests contained herein and, in addition, shall have the right, subject to compliance with any mandatory requirements of applicable law and the terms of this Indenture, to sell or apply any rights and other interests assigned or pledged hereby in accordance with the terms hereof at public and private sale.
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The Trustee acknowledges such Grants, accepts the trusts hereunder in accordance with the provisions hereof, and agrees to perform the duties herein in accordance with, and subject to, the terms hereof, in order that the interests of the Secured Parties may be adequately and effectively protected in accordance with this Indenture.
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ARTICLEΒ 1
Β
DEFINITIONS
Β
SectionΒ 1.1Β Β Β Β Β Β Β Β Β Β Β Definitions.
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Except as otherwise specified herein or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Indenture, and the definitions of such terms are equally applicable both to the singular and plural forms of such terms and to the masculine, feminine and neuter genders of such terms.Β The word βincludingβ and its variations shall mean βincluding without limitation.βΒ Whenever any reference is made to an amount the determination of which is governed by SectionΒ 1.2 hereof, the provisions of SectionΒ 1.2 shall be applicable to such determination or calculation, whether or not reference is specifically made to SectionΒ 1.2, unless some other method of calculation or determination is expressly specified in the particular provision. All references in this Indenture to designated βArticles,β βSections,β βSubsectionsβ and other subdivisions are to the designated Articles, Sections, Subsections and other subdivisions of this Indenture as originally executed.Β The words βherein,β βhereof,β βhereunderβ and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, Subsection or other subdivision.
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β17g-5 Informationβ:Β The meaning specified in SectionΒ 14.3(h)Β hereof.
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β17g-5 Websiteβ:Β A password-protected internet website which shall initially be located at xxx.xxxxxx.xxx/xxx.Β Any change of the 17g-5 Website shall only occur after notice has been delivered by the Issuer to the Information Agent, the Trustee, the Collateral Administrator, the Loan Obligation Manager, the Placement Agent and the Rating Agency, which notice shall set forth the date of change and new location of the 17g-5 Website.
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β1940 Actβ:Β Investment Company Act of 1940, as amended.
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βA Noteβ:Β A promissory note secured by a mortgage on commercial real estate property that is not subordinate in right of payment to any separate promissory note secured by a direct or beneficial interest in the same property.
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βAccepted Loan Servicerβ:Β Any commercial mortgage loan master or primary servicer that (1)Β is engaged in the business of servicing commercial mortgage loans (with a minimum servicing portfolio of U.S.$100,000,000) that are comparable to the Loan Obligations owned or to be owned by the Issuer and (2)Β as to which Xxxxxβx has not cited servicing concerns of such servicer as the sole or material factor in any downgrade or withdrawal of the ratings (or placement on βwatch statusβ in contemplation of a ratings downgrade or withdrawal) of securities in any commercial mortgage backed securities transaction serviced by such servicer prior to the time of determination.
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βAccountβ: Any of the Interest Collection Account, the Principal Collection Account, the Unused Proceeds Account, the RDD Funding Account, the Payment Account, the Expense Account, the Custodial Account and the Preferred Share Distribution Account and any subaccount thereof that the Trustee deems necessary or appropriate.
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βAccountantsβ Reportβ:Β A report of a firm of Independent certified public accountants of recognized national reputation appointed by the Issuer pursuant to SectionΒ 10.13(a), which may be the firm of independent accountants that reviews or performs procedures with respect to the financial reports prepared by the Issuer or the Loan Obligation Manager.
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βActβ or βAct of Securityholdersβ:Β The meaning specified in SectionΒ 14.2 hereof.
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βAdditional Loan Obligationsβ:Β Loan Obligations that are acquired by the Issuer during the Post-Closing Acquisition Period.
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βAdvancing Agentβ:Β Arbor Realty SR,Β Inc., unless a successor Person shall have become the Advancing Agent pursuant to the applicable provisions of this Indenture, and thereafter βAdvancing Agentβ shall mean such successor Person.
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βAdvancing Agent Feeβ:Β The fee payable monthly in arrears on each Payment Date to the Advancing Agent in accordance with the Priority of Payments, equal to 0.07% per annum on the Aggregate Outstanding Amount of the Notes on such Payment Date prior to giving effect to distributions with respect to such Payment Date; which fee may be waived by the Advancing Agent, in its discretion in connection with any Payment Date unless such fee is payable to the Back-up Advancing Agent pursuant to the Priority of Payments.
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βAdvisers Actβ: The Investment Advisers Act of 1940, as amended.
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βAdvisory Committeeβ: The meaning specified in the Loan Obligation Management Agreement.
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βAffiliateβ or βAffiliatedβ:Β With respect to a Person, (i)Β any other Person who, directly or indirectly, is in control of, or controlled by, or is under common control with, such Person or (ii)Β any other Person who is a director, Officer or employee (a)Β of such Person, (b)Β of any subsidiary or parent company of such Person or (c)Β of any Person described in clause (i)Β above.Β For the purposes of this definition, control of a Person shall mean the power, direct or indirect, (i)Β to vote more than 50% of the securities having ordinary voting power for the election of directors of such Person, or (ii)Β to direct or cause the direction of the management and policies of such Person whether by contract or otherwise; provided that neither the Company Administrator nor any other company, corporation or person to which the Company Administrator provides directors and/or administrative services and/or acts as share trustee shall be an Affiliate of the Issuer or Co-Issuer; provided, further, that neither the Loan Obligation Manager, the Arbor Parent nor any of the Arbor Parentβs subsidiaries shall be deemed to be Affiliates of the Issuer.
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βAgent Membersβ:Β Members of, or participants in, the Depository, Clearstream, Luxembourg or Euroclear.
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βAggregate Collateral Balanceβ:Β The sum of (without duplication) (i)Β the aggregate Principal Balance of Loan Obligations (excluding for purposes of this clause (i), for the avoidance of doubt, the then unfunded portion of any RDD Obligation), (ii)Β the sum of Cash and the aggregate Principal Balance of Eligible Investments held as Principal Proceeds, (iii)Β the sum of Cash and the aggregate Principal Balance of Eligible Investments held in the Unused
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Proceeds Account and (iv)Β the sum of cash and the aggregate Principal Balance of Eligible Investments held in the RDD Funding Account.
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βAggregate Outstanding Amountβ:Β With respect to any ClassΒ or Classes of the Notes as of any date of determination, the aggregate principal balance of such ClassΒ or Classes of Notes Outstanding as of such date of determination.
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βAggregate Principal Balanceβ: When used with respect to any Loan Obligations as of any date of determination, the sum of the Principal Balances on such date of determination of all such Loan Obligations.
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βArbor Parentβ: The meaning specified in the first paragraph of this Indenture.
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βARMS Equityβ:Β ARMS 2013-1 Equity Holdings LLC, a Delaware limited liability company.
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βArticleΒ 15 Agreementβ:Β The meaning specified in SectionΒ 15.1(a)Β hereof.
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βAs-Stabilized DSCRβ:Β With respect to any Loan Obligation, the ratio, as calculated by the Loan Obligation Manager in accordance with the Loan Obligation Management Standard, of (a)Β the βstabilizedβ annual net cash flow generated from the related property before interest, depreciation and amortization; to (b)Β the annual payments of principal and interest due pursuant to the terms of the related Underlying Instruments (but excluding any balloon payments, required principal paydowns or reserve payments, and including any required funding of working capital reserves).Β In determining the βstabilizedβ net cash flow the Loan Obligation Manager may make certain assumptions, including, without limitation, with respect to occupancy rates, rental rates and operational expenses as the Loan Obligation Manager believes is reasonable in its good faith judgment executed in accordance with the Loan Obligation Management Standard.Β In determining As-Stabilized DSCR for any Senior Participation, the calculation of As-Stabilized DSCR shall take into account the annual payments of principal and interest due on any Senior Participation pursuant to the terms of the related Senior Participation Agreement (and, in the case of a Senior Participation that is a Senior Pari Passu Participation, the annual payments of principal and interest due pursuant to the terms of the related Non-Acquired Participation that is pari passu with the Senior Participation being acquired) and shall exclude the annual payments of principal and interest due on any related Junior Participation.
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βAs-Stabilized LTVβ:Β With respect to any Loan Obligation, the ratio, expressed as a percentage, as calculated by the Loan Obligation Manager in accordance with the Loan Obligation Management Standard, of the Principal Balance of such Loan Obligation to the value estimate of the related Underlying Mortgaged Property as reflected in an appraisal that was obtained not less than 6 months prior to the date of closing of such Loan Obligation, which value is based on the appraisal or portion of an appraisal that states an βas-stabilizedβ value and/or βas-renovatedβ value for such property, which may be based on the assumption that certain events will occur, including without limitation, with respect to the re-tenanting, renovation or other repositioning of such property.Β In determining As-Stabilized LTV for any Senior Participation, the calculation of As-Stabilized LTV shall take into account the outstanding Principal Balance of the Senior Participation being acquired by the Issuer (and, in the case of a Senior Participation
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that is a Senior Pari Passu Participation, the Principal Balance of the related Non-Acquired Participation that is pari passu with the Senior Participation being acquired) and shall exclude the Principal Balance of any related Junior Participation.
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βAssetsβ:Β The meaning specified in the first paragraph of the Granting Clause of this Indenture.
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βAuthenticating Agentβ:Β With respect to the Notes or a ClassΒ of the Notes, the Person designated by the Trustee to authenticate such Notes on behalf of the Trustee pursuant to SectionΒ 2.12 hereof.
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βAuthorized Officerβ:Β With respect to the Issuer or Co-Issuer, any Officer (or attorney-in-fact appointed by the Issuer or the Co-Issuer) who is authorized to act for the Issuer or Co-Issuer in matters relating to, and binding upon, the Issuer or Co-Issuer.Β With respect to the Loan Obligation Manager, the persons listed on Schedule C attached hereto.Β With respect to the Trustee or any other bank or trust company acting as trustee of an express trust or as custodian, a Trust Officer.Β Each party may receive and accept a certification of the authority of any other party as conclusive evidence of the authority of any person to act, and such certification may be considered as in full force and effect until receipt by such other party of written notice to the contrary.
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βAvailable Principal Proceedsβ:Β With respect to any Payment Date, the amount of Principal Proceeds standing to the credit of the Principal Collection Account as of the Determination Date related to such Payment Date.
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βBackup Advancing Agentβ:Β U.S. Bank National Association, a national banking association, solely in its capacity as Backup Advancing Agent hereunder, or any successor Backup Advancing Agent; provided that any such successor Backup Advancing Agent must be a financial institution having a long-term debt rating from Xxxxxβx at least equal to βA2β and a short-term debt rating from Xxxxxβx at least equal to βP-1.β
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βBackup Advancing Agent Feeβ:Β The fee payable monthly in arrears on each Payment Date to the Backup Advancing Agent in accordance with the Priority of Payments, equal to 0.001% per annum on the Aggregate Outstanding Amount of the Notes on such Payment Date prior to giving effect to distributions with respect to such Payment Date.
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βBailee Letterβ:Β The meaning specified in SectionΒ 12.4(b)(v)Β hereof.
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βBankβ:Β U.S. Bank National Association, a national banking association, in its individual capacity and not as Trustee and, if any Person is appointed as a successor Trustee, such Person in its individual capacity and not as Trustee.
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βBankruptcy Codeβ:Β The federal Bankruptcy Code, Title 11 of the United States Code, as amended and PartΒ V of the Companies Law (2012 Revision) of the Cayman Islands, as amended from time to time, the Bankruptcy Law (1997 Revision) of the Cayman Islands, as amended from time to time and the Foreign Bankruptcy Proceedings (International Cooperation) RulesΒ 2008 of the Cayman Islands, as amended from time to time.
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βBearer Securitiesβ:Β The meaning specified in SectionΒ 3.3(a)(iv)Β hereof.
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βBoard of Directorsβ:Β With respect to the Issuer, the directors of the Issuer duly appointed in accordance with the Governing Documents of the Issuer and, with respect to the Co-Issuer, the LLC Managers duly appointed by the sole member of the Co-Issuer or otherwise.
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βBoard Resolutionβ:Β With respect to the Issuer, a resolution of the Board of Directors of the Issuer and, with respect to the Co-Issuer, a resolution or unanimous written consent of the LLC Managers or the sole member of the Co-Issuer.
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βBusiness Dayβ:Β Any day other than (i)Β a Saturday or Sunday and (ii)Β a day on which commercial banks are authorized or required by applicable law, regulation or executive order to close in New York, New York or the location of the Corporate Trust Office.
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βBuy/Sell Interestβ:Β A Loan Obligation for which one of the participants has exercised, or has the right to exercise, the purchase its corresponding participantβs interest, or sell its interest to such corresponding participant for the same price, in accordance with the related Underlying Instrument.
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βCalculation Agentβ:Β The meaning specified in SectionΒ 7.14(a)Β hereof.
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βCalculation Amountβ:Β With respect to any Loan Obligation, at any time, the lesser of (a)Β the Xxxxxβx Recovery Rate of such Loan Obligation multiplied by the Principal Balance of such Loan Obligation and (b)Β the market value of such Loan Obligation, as determined by the Loan Obligation Manager in accordance with the Loan Obligation Management Standard based upon, among other things, a recent appraisal and information from one or more third party commercial real estate brokers and such other information as the Loan Obligation Manager deems appropriate.
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βCashβ:Β Such coin or currency of the United States of America as at the time shall be legal tender for payment of all public and private debts.
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βCertificate of Authenticationβ:Β The meaning specified in SectionΒ 2.1 hereof.
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βCertificated Securityβ:Β A βcertificated securityβ as defined in SectionΒ 8-102(a)(4)Β of the UCC.
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βClassβ:Β The ClassΒ A Notes or the ClassΒ B Notes, as applicable.
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βClassΒ A Defaulted Interest Amountβ:Β With respect to the ClassΒ A Notes as of each Payment Date, the accrued and unpaid amount due to Holders of the ClassΒ A Notes on account of any shortfalls in the payment of the ClassΒ A Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful).
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βClassΒ A Interest Distribution Amountβ:Β On each Payment Date, the amount due to Holders of the ClassΒ A Notes on account of interest equal to the product of (i)Β the Aggregate Outstanding Amount of the ClassΒ A Notes on the first day of the related Interest Accrual Period,
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(ii)Β the actual number of days in such Interest Accrual Period divided by 360 and (iii)Β the ClassΒ A Rate.
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βClassΒ A Notesβ:Β The ClassΒ A Senior Secured Floating Rate Notes, Due 2023, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
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βClassΒ A Rateβ:Β With respect to any ClassΒ A Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a)Β one-month LIBOR for the related Interest Accrual Period plus (b)Β 2.00% per annum.
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βClassΒ B Defaulted Interest Amountβ:Β With respect to the ClassΒ B Notes as of each Payment Date, the accrued and unpaid amount due to Holders of the ClassΒ B Notes on account of any shortfalls in the payment of the ClassΒ B Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful).
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βClassΒ B Interest Distribution Amountβ:Β On each Payment Date, the amount due to Holders of the ClassΒ B Notes on account of interest equal to the product of (i)Β the Aggregate Outstanding Amount of the ClassΒ B Notes on the first day of the related Interest Accrual Period, (ii)Β the actual number of days in such Interest Accrual Period divided by 360 and (iii)Β the ClassΒ B Rate.
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βClassΒ B Notesβ:Β The ClassΒ B Secured Floating Rate Notes due 2023, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
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βClassΒ B Rateβ:Β With respect to any ClassΒ B Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a)Β one-month LIBOR for the related Interest Accrual Period plus (b)Β 5.00% per annum.
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βClean-up Callβ:Β The meaning specified in SectionΒ 9.1 hereof.
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βClean-up Call Dateβ:Β The meaning specified in SectionΒ 9.1 hereof.
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βClearing Agencyβ: An organization registered as a βclearing agencyβ pursuant to SectionΒ 17A of the Exchange Act.
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βClearstream, Luxembourgβ: Clearstream Banking, sociΓ©tΓ© anonyme, a limited liability company organized under the laws of the Grand Duchy of Luxembourg.
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βCLO Servicerβ:Β Arbor Commercial Mortgage, LLC, each of Arbor Commercial Mortgage, LLCβs permitted successors and assigns or any successor Person that shall have become the servicer and special servicer pursuant to the provisions of the Servicing Agreement.
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βClosingβ:Β The transfer of any Note to the initial registered Holder of such Note.
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βClosing Dateβ:Β JanuaryΒ 28, 2013.
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βClosing Date Loan Obligationsβ:Β The Loan Obligations listed on Schedule A attached hereto, for which PartΒ 1 are Loan Obligations that are acquired by the Issuer on the Closing Date and for which PartΒ 2 are Loan Obligations that are expected to be acquired by the Issuer during the Post-Closing Acquisition Period.
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βCo-Issuerβ:Β Arbor Realty Collateralized Loan Obligation 2013-1, LLC, a limited liability company formed under the laws of the State of Delaware, until a successor Person shall have become the Co-Issuer pursuant to the applicable provisions of this Indenture, and thereafter βCo-Issuerβ shall mean such successor Person.
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βCo-Issuersβ:Β The Issuer and the Co-Issuer.
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βCodeβ:Β The United States Internal Revenue Code of 1986, as amended.
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βCollateral Administration Agreementβ:Β An agreement dated as of the Closing Date among the Issuer, the Loan Obligation Manager and the Collateral Administrator, as amended from time to time.
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βCollateral Administratorβ:Β The Bank, in its capacity as such under the Collateral Administration Agreement, and any successor thereto.
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βCollection Accountsβ:Β The trust accounts so designated and established pursuant to SectionΒ 10.2(a)Β hereof.
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βCompany Administration Agreementβ:Β The administration agreement, dated on or about the Closing Date, by and among the Issuer and the Company Administrator, as modified and supplemented and in effect from time to time.
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βCompany Administrative Expensesβ:Β All fees, expenses and other amounts due or accrued with respect to any Payment Date and payable by the Issuer, the Co-Issuer or any Permitted Subsidiary (including legal fees and expenses) to (i)Β the Trustee pursuant to SectionΒ 6.7 hereof or any co-trustee appointed pursuant to this Indenture (including amounts payable by the Issuer as indemnification pursuant to this Indenture), (ii)Β the Company Administrator under the Company Administration Agreement (including amounts payable by the Issuer as indemnification pursuant to the Company Administration Agreement) and to provide for the costs of liquidating the Issuer following redemption of the Notes, (iii)Β the LLC Managers (including indemnification), (iv)Β payable in the order in which invoices are received by the Issuer, the Independent accountants, agents and counsel of the Issuer for reasonable fees and expenses (including amounts payable in connection with the preparation of tax forms on behalf of the Issuer and the Co-Issuer) and any registered office and government filing fees, (v)Β Xxxxxβx for fees and expenses in connection with any rating (including the annual fee payable with respect to the monitoring of any rating) of the Notes, including fees and expenses due or accrued in connection with any credit assessment or rating of the Loan Obligations, (vi)Β the Loan Obligation Manager under this Indenture and the Loan Obligation Management Agreement, (vii)Β the Loan Obligation Manager or other Persons as indemnification pursuant to the Loan Obligation Management Agreement, (viii)Β the Advancing Agent or other Persons as indemnification pursuant to SectionΒ 17.3, (ix)Β each member of the Advisory Committee (including amounts payable as indemnification) under each agreement between such Advisory
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Committee member and the Issuer (and the amounts payable by the Issuer to each member of the Advisory Committee as indemnification pursuant to each such agreement); (x)Β the Preferred Shares Paying Agent and the Share Registrar under the Preferred Share Paying Agency Agreement (including amounts payable as indemnification), (xi)Β payable in the order in which invoices are received by the Issuer, any other Person in respect of any governmental fee, charge or tax in relation to the Issuer or the Co-Issuer (in each case as certified by an Authorized Officer of the Issuer or the Co-Issuer to the Trustee), and (xii)Β payable in the order in which invoices are received by the Issuer, any other Person in respect of any other fees or expenses (including indemnifications) permitted under this Indenture (including, without limitation, any costs or expenses incurred in connection with certain modeling systems and services) and the documents delivered pursuant to or in connection with this Indenture and the Notes and any amendment or other modification of any such documentation, in each case unless expressly prohibited under this Indenture (including, without limitation, the payment of all transaction fees and all legal and other fees and expenses required in connection with the purchase of any Loan Obligations or any other transaction authorized by this Indenture); provided that Company Administrative Expenses shall not include (a)Β amounts payable in respect of the Notes and (b)Β any Loan Obligation Manager Fee payable pursuant to the Loan Obligation Management Agreement.
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βCompany Administratorβ:Β MaplesFS Limited, a licensed trust company incorporated in the Cayman Islands, as administrator pursuant to the Company Administration Agreement, unless a successor Person shall have become administrator pursuant to the Company Administration Agreement, and thereafter, Company Administrator shall mean such successor Person.
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βControlling Classβ:Β The ClassΒ A Notes, so long as any ClassΒ A Notes are Outstanding, then the ClassΒ B Notes, so long as ClassΒ B Notes are Outstanding, and then the Preferred Shares.
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βCorporate Trust Officeβ:Β The designated corporate trust office of the Trustee, currently located at: (a)Β for Note transfer purposes, presentment of the Notes for final payment thereon, 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, XX 00000, Attention: Corporate Trust ServicesβArbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.; and (b)Β for all other purposes, 000 Xxxxx XxXxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx,Β Xxxxxxxx, 00000, Attention: Corporate Trust ServicesβArbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., fax: (000) 000-0000, or such other address as the Trustee may designate from time to time by notice to the Noteholders, the Holder of the Preferred Shares, the Loan Obligation Manager, Xxxxxβx and the Issuer or the principal corporate trust office of any successor Trustee.
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βCredit Risk/Defaulted Obligation Cash Purchaseβ:Β The meaning specified in SectionΒ 12.1(a)(i)Β hereof.
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βCredit Risk Obligationβ: Any Loan Obligation that, in the Loan Obligation Managerβs reasonable business judgment, has a significant risk of declining in credit quality or, with a lapse of time, becoming a Defaulted Obligation.
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βCustodial Accountβ:Β An account at the Custodial Securities Intermediary in the name of the Trustee pursuant to SectionΒ 10.1(b)Β hereof.
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βCustodial Securities Intermediaryβ:Β The meaning specified in SectionΒ 3.3(a)Β hereof.
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βDefaultβ:Β Any Event of Default or any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.
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βDefaulted Interest Amountβ:Β The ClassΒ A Defaulted Interest Amount and/or the ClassΒ B Defaulted Interest Amount, as the context requires.
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βDefaulted Obligationβ:Β Any Loan Obligation if a foreclosure or default (whether or not declared) with respect to the related Whole Loan (or, in the case of a Senior Participation, the related Underlying Whole Loan) has occurred and, with respect to a default, is continuing as determined by the Loan Obligation Manager; provided, however, that notwithstanding the foregoing, a Loan Obligation shall not be deemed to be a Defaulted Obligation as a result of (A)Β the related borrowerβs failure to pay interest on such Loan Obligation or on the related Whole Loan (or, in the case of a Senior Participation, the related Underlying Whole Loan) on the due date therefor, if the related lender or holder of such Loan Obligation or of the related Whole Loan (or, in the case of a Senior Participation, the related Underlying Whole Loan) consents to extend the due date when such interest is due and payable, and such interest is paid on or before such extended due date (provided that such interest is paid not more than 60 days (or 30 days if such interest was previously paid 60 days after the initial date that it was due) as a result of the Loan Obligation Manager, on behalf of the Issuer, (subject to the applicable provisions of the Servicing Agreement) previously consenting to extend such due date after the initial date that it was due), or (B)Β the related borrowerβs failure to pay principal on such Loan Obligation or on the related Whole Loan (or, in the case of a Senior Participation, the related Underlying Whole Loan) on the maturity date thereof, if the maturity date has been extended by the related servicer or special servicer in connection with a modification of such related Whole Loan (or, in the case of a Senior Participation, the related Underlying Whole Loan) (so long as the Maturity Extension Requirements are met), or (C)Β the occurrence of any default other than a payment default with respect to such Loan Obligation or the related Whole Loan (or, in the case of a Senior Participation, the related Underlying Whole Loan), unless and until the earlier of (x)Β the declaration of default and acceleration of the maturity of the Loan Obligation by the lender or holder thereof and (y)Β the continuance of such default uncured for 60 days after such default became known to the Loan Obligation Manager or the CLO Servicer or, subject to the satisfaction of the Rating Agency Condition, such longer period as the Loan Obligation Manager (subject to the applicable provisions of the Servicing Agreement) determines.Β Notwithstanding the foregoing, any Loan Obligation that has sustained an implied reduction of principal balance due to an appraisal reduction will not necessarily be considered a Defaulted Obligation solely due to such implied reduction.
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For purposes of the definition of βDefaulted Obligation,β the βMaturity Extension Requirementsβ will be satisfied with respect to any extension if the maturity date is extended to a new maturity date that is not more than three years after the original maturity date.Β As used above, the term βoriginal maturity dateβ means the maturity date of a Loan Obligation or the related Whole Loan (or, in the case of a Senior Participation, the related Underlying Whole Loan) as extended by all extensions thereof that the related borrower had the right to elect and did elect under the terms of the instruments and agreements relating to such Loan Obligation or to the related Whole Loan
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(or, in the case of a Senior Participation, the related Underlying Whole Loan), but before taking into account any additional extensions thereof that are consented to by the servicer or special servicer of such Loan Obligation.
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For the avoidance of doubt (x)Β any initial permissible 60 day extension period described in this definition shall in no event be combined with any subsequent permissible 30 day extension period described in this definition and (y)Β if a Defaulted Obligation is the subject of a work-out, modification or otherwise has cured the default such that the subject Loan Obligation is no longer in default pursuant to its terms (as such terms may have been modified), such Loan Obligation will no longer be treated as a Defaulted Obligation.
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βDefaulted Obligation Exchangeβ: The meaning specified in SectionΒ 12.1(a)Β hereof.
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βDefinitive Notesβ:Β The meaning specified in SectionΒ 2.2(b)Β hereof.
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βDepositoryβ or βDTCβ:Β The Depository Trust Company, its nominees, and their respective successors.
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βDetermination Dateβ:Β With respect to any Payment Date, the fourth Business Day prior to such Payment Date.
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βDisqualified Transfereeβ:Β The meaning specified in SectionΒ 2.5(l)Β hereof.
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βDissolution Expensesβ:Β The amount of expenses reasonably likely to be incurred in connection with the discharge of this Indenture, the liquidation of the Assets and the dissolution of the Co-Issuers, as reasonably certified by the Loan Obligation Manager or the Issuer, based in part on expenses incurred by the Trustee and reported to the Loan Obligation Manager.
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βDollar,β βU.S. $β or β$β:Β A U.S. dollar or other equivalent unit in Cash.
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βDue Dateβ:Β Each date on which a Scheduled Distribution is due on an Asset.
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βDue Periodβ:Β With respect to any Payment Date, the period commencing on the day immediately succeeding the second preceding Determination Date (or commencing on the Closing Date, in the case of the Due Period relating to the first Payment Date) and ending on and including the Determination Date immediately preceding such Payment Date.
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βEligibility Criteriaβ:Β The criteria set forth below with respect to any Loan Obligation, whether an Additional Loan Obligation or a Replacement Loan Obligation, acquired by the Issuer after the Closing Date, compliance with which shall be evidenced by an Officerβs Certificate of the Loan Obligation Manager delivered to the Trustee as of the date of such acquisition:
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(i)Β Β Β Β Β Β it is a Whole Loan or a Senior Participation that is secured by Multi-Family Property;
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(ii)Β Β Β Β Β the obligor is incorporated or organized under the laws of, and the Loan Obligation is secured by property located in, the United States;
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(iii)Β Β Β Β it was originated within the past six months;
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(iv)Β Β Β it provides for monthly payments of interest at a floating rate of interest based on one-month LIBOR;
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(v)Β Β Β Β it has a Xxxxxβx Rating;
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(vi)Β Β Β the Whole Loan (or, in the case of a Senior Participation, the Underlying Whole Loan) has a maturity date, assuming the exercise of all extension options (if any) that are exercisable at the option of the related borrower under the terms of such Whole Loan (or, as applicable, in the case of a Senior Participation, the Underlying Whole Loan) is not more than five years from its origination date;
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(vii)Β Β it has an As-Stabilized LTV that is not greater than 75%;
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(viii)Β it has an As-Stabilized DSCR that is not less than 1.25x;
Β
(ix)Β Β Β the Principal Balance of such Loan Obligation is not greater than U.S.$30,000,000;
Β
(x)Β Β Β Β (I)Β with respect to the Additional Loan Obligations, as of the Portfolio Finalization Date and (II)Β with respect to any Replacement Loan Obligation, immediately after giving effect to the acquisition of such Replacement Loan Obligation:
Β
(A)Β Β Β Β Β Β Β Β Β the Weighted Average Life of all the Loan Obligations is not greater than 4.5 years from the Closing Date;
Β
(B)Β Β Β Β Β Β Β Β Β the Weighted Average Spread of all the Loan Obligations is not less than 5.0%;
Β
(C)Β Β Β Β Β Β Β Β Β the aggregate Principal Balance of all Loan Obligations allocated to a related Underlying Mortgaged Property located in any one State is no greater than 40% of the Portfolio Finalization Date Collateral Principal Balance; and
Β
(D)Β Β Β Β Β Β Β Β Β the aggregate Principal Balance of all Loan Obligations divided by the number of Loan Obligations does not exceed U.S.$13,000,000;
Β
(xi)Β Β Β with respect to each (1)Β Replacement Loan Obligation, the Xxxxxβx Weighted Average Rating Factor for such Replacement Loan Obligation is equal to or less than the Xxxxxβx Weighted Average Rating Factor of the Loan Obligations that generated the Principal Proceeds that are being applied to the
Β
Β
purchase such Replacement Loan Obligations; and (2)Β Additional Loan Obligation, the Xxxxxβx Rating for such Loan Obligation is equal to or better than the Xxxxxβx Rating that equates to the Xxxxxβx Weighted Average Rating Factor for all Loan Obligations acquired by the Issuer on the Closing Date;
Β
(xii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β except with respect to RDD Obligations, it will not require the Issuer to make any future payments after the initial purchase thereof;
Β
(xiii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if it is a RDD Obligation, the aggregate amount of RDD Funding Advances with respect to such RDD Obligation is deposited into the RDD Funding Account on the date such RDD Obligation is acquired by the Issuer;
Β
(xiv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is not prohibited under its Underlying Instruments from being purchased by the Issuer and pledged to the Trustee;
Β
(xv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is not the subject of any solicitation by the borrower or Junior Participation holder to amend, modify or waive any provision of any of the related Underlying Instruments;
Β
(xvi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is not an interest that, in the Loan Obligation Managerβs reasonable business judgment, has a significant risk of declining in credit quality or, with lapse of time or notice, becoming a Defaulted Obligation;
Β
(xvii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is not a Defaulted Obligation (as determined by the Loan Obligation Manager after reasonable inquiry);
Β
(xviii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is Dollar denominated and may not be converted into an obligation payable in any other currencies;
Β
(xix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if such Loan Obligation has attached reciprocal βbuy/sellβ rights as a dispute resolution mechanism, such rights in favor of the Issuer are freely assignable by the Issuer to any of its affiliates;
Β
(xx)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it provides for the repayment of principal at not less than par no later than upon its maturity or upon redemption, acceleration or its full prepayment;
Β
(xxi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is serviced pursuant to the Servicing Agreement or it is serviced by an Accepted Loan Servicer pursuant to a commercial mortgage servicing arrangement that includes the standard servicing provisions found in commercial mortgage backed securities transactions;
Β
(xxii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the requirements set forth in SectionΒ 16.3 hereof have been met (subject to such exceptions as are reasonably acceptable to the Loan Obligation Manager);
Β
(xxiii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if it is a Senior Participation, the related Participating Institution is any of (1)Β a βspecial purpose entityβ or a βqualified institutional lenderβ as such
Β
Β
terms are typically defined in the Underlying Instruments related to participations; (2)Β an entity that has a long-term unsecured debt rating from Xxxxxβx of βA3β or higher; (3)Β a securitization trust, a CDO issuer or a similar securitization vehicle, or (4)Β a special purpose entity that is 100% directly or indirectly owned by the Arbor Parent, for so long as the separateness provisions of its organizational documents have not been amended (unless the Rating Agency Condition was satisfied in connection with such amendment);
Β
(xxiv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β its acquisition will be in compliance with SectionΒ 206 of the Advisers Act;
Β
(xxv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β its acquisition, ownership, enforcement and disposition will not cause the Issuer to fail to be a Qualified REIT Subsidiary unless an appropriate tax opinion has previously been received from Cadwalader, XxxxxxxxxxΒ & Xxxx LLP or another nationally recognized tax counsel experienced in such matters that the Issuer will be treated as a foreign corporation that is not engaged in a trade or business in the United States for U.S. federal income tax purposes;
Β
(xxvi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β its acquisition would not cause the Issuer, the Co-Issuer or the pool of Assets to be required to register as an investment company under the 1940 Act; and if the borrowers with respect to the Loan Obligation are excepted from the definition of an βinvestment companyβ solely by reason of SectionΒ 3(c)(1)Β of the 1940 Act, then either (x)Β such Loan Obligation does not constitute a βvoting securityβ for purposes of the 1940 Act or (y)Β the aggregate amount of such Loan Obligation held by the Issuer is less than 10% of the entire issue of such Loan Obligation;
Β
(xxvii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β it does not provide for any payments which are or will be subject to deduction or withholding for or on account of any withholding or similar tax, other than any taxes imposed pursuant to FATCA, unless the borrowers under such Loan Obligation are required to make βgross upβ payments that ensure that the net amount actually received by the Issuer or the relevant Permitted Subsidiary (free and clear of taxes, whether assessed against such borrower or the Issuer or such Permitted Subsidiary) will equal the full amount that the Issuer or such Permitted Subsidiary would have received had no such deduction or withholding been required; and
Β
(xxviii)Β Β Β Β Β Β Β Β Β Β Β (a)Β with respect to each Additional Loan Obligation (excluding the Closing Date Loan Obligations identified on PartΒ 2 of Schedule A or any Additional Loan Obligation acquired in lieu thereof), the Principal Balance of (1)Β the largest Additional Loan Obligation is equal to or less than U.S.$25,000,000, (2)Β the second-largest Additional Loan Obligation is equal to or less than U.S.$15,000,000 and (3)Β the third-largest Additional Loan Obligation is equal to or less than U.S.$10,000,000; and (b)Β with respect to the Closing Date Loan Obligations identified in PartΒ 2 of Schedule A or any Additional Loan Obligation acquired in lieu thereof, the maximum Principal Balances shall be as follows: (1)Β the largest of such Additional Loan Obligations is equal to or less than
Β
Β
U.S.$18,000,000 and (2)Β the second-largest of such Additional Loan Obligations is equal to or less than U.S.$13,200,000.
Β
βEligible Investmentsβ:Β Any Dollar-denominated investment that, at the time it is Granted to the Trustee (directly or through a Securities Intermediary or bailee), is Registered and is one or more of the following obligations or securities:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β direct obligations of, and obligations the timely payment of principal of and interest on which is fully and expressly guaranteed by, the United States, or any agency or instrumentality of the United States, the obligations of which are expressly backed by the full faith and credit of the United States;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β demand and time deposits in, certificates of deposit of, bankersβ acceptances issued by, or federal funds sold by, any depository institution or trust company incorporated under the laws of the United States or any state thereof or the District of Columbia (including the Trustee or the commercial department of any successor Trustee, as the case may be; provided that such successor otherwise meets the criteria specified herein) and subject to supervision and examination by federal and/or state banking authorities so long as the commercial paper and/or the debt obligations of such depositary institution or trust company (or, in the case of the principal depositary institution in a holding company system, the commercial paper or debt obligations of such holding company) at the time of such investment or contractual commitment providing for such investment have a credit rating not less than βAa3β by Xxxxxβx, in the case of long-term debt obligations, and βP-1β by Xxxxxβx, for short-term debt obligations;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β unleveraged repurchase or forward purchase obligations with respect to (a)Β any security described in clause (i)Β above or (b)Β any other security issued or guaranteed by an agency or instrumentality of the United States of America, in either case entered into with a depository institution or trust company (acting as principal) described in clause (ii)Β above (including the Trustee or the commercial department of any successor Trustee, as the case may be; provided that such person otherwise meets the criteria specified herein) or entered into with a corporation (acting as principal) whose long-term rating is not less than βAa3β by Xxxxxβx, and whose short-term credit rating is not less than βP-1β by Xxxxxβx;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β registered securities bearing interest or sold at a discount issued by any corporation incorporated under the laws of the United States or any state thereof or the District of Columbia that has a long-term credit rating of not less than βAa3β by Xxxxxβx and a short-term credit rating of not less than P-1 by Xxxxxβx, at the time of such investment or contractual commitment providing for such investment;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β commercial paper or other similar short-term obligations (including that of the Trustee or the commercial department of any successor Trustee, as the case may be, or any affiliate thereof; provided that such person
Β
Β
otherwise meets the criteria specified herein) having at the time of such investment a short-term credit rating of βP-1β by Xxxxxβx; provided, further, that the issuer thereof must also have at the time of such investment a senior long-term debt rating of not less than βAa3β by Xxxxxβx;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β a reinvestment agreement issued by any bank (if treated as a deposit by such bank), or a Registered guaranteed investment or reinvestment agreement issued by an insurance company or other corporation or entity, in each case that has a short term credit rating of not less than βP-1β by Xxxxxβx; provided that the issuer thereof must also have at the time of such investment a long term credit rating of not less than βAa3β by Xxxxxβx; and
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any other investment similar to those described in clauses (i)Β through (vi)Β above that (1)Β Xxxxxβx has confirmed may be included in the portfolio of Assets as an Eligible Investment without adversely affecting its then-current ratings on the Notes and (2)Β has a long-term credit rating of not less than βAa3β by Xxxxxβx and a short term credit rating of not less than βP-1β by Xxxxxβx;
Β
provided that mortgage-backed securities and interest only securities shall not constitute Eligible Investments; and provided, further, that (a)Β Eligible Investments acquired with funds in the Collection Accounts shall include only such obligations or securities as mature no later than three Business Day prior to the next Payment Date succeeding the acquisition of such obligations or securities, (b)Β Eligible Investments shall not include obligations bearing interest at inverse floating rates, (c)Β Eligible Investments shall be treated as indebtedness for U.S. federal income tax purposes and such investment shall not cause the Issuer to fail to be treated as a Qualified REIT Subsidiary (unless the Issuer has previously received an opinion of Cadwalader, XxxxxxxxxxΒ & Xxxx LLP or another nationally recognized tax counsel experienced in such matters opining that the Issuer will be treated as a foreign corporation not engaged in a trade or business in the United States for U.S. federal income tax purposes, in which case the investment will not cause the Issuer to be treated as a foreign corporation engaged in a trade or business in the United States for U.S. federal income tax purposes), (d)Β Eligible Investments shall not be subject to deduction or withholding for or on account of any withholding or similar tax (other than any taxes imposed pursuant to FATCA), unless the payor is required to make βgross upβ payments that ensure that the net amount actually received by the Issuer (free and clear of taxes, whether assessed against such obligor or the Issuer) will equal the full amount that the Issuer would have received had no such deduction or withholding been required, (e)Β Eligible Investments shall not be purchased for a price in excess of par and (f)Β Eligible Investments shall not include margin stock.Β Eligible Investments may be obligations of, and may be purchased from, the Trustee and its Affiliates so long as the Trustee has a capital and surplus of at least U.S.$200,000,000 and has a long term unsecured credit rating of at least βBaa1β by Xxxxxβx, and may include obligations for which the Trustee or an Affiliate thereof receives compensation for providing services.
Β
βEntitlement Orderβ:Β The meaning specified in SectionΒ 8-102(a)(8)Β of the UCC.
Β
Β
βERISAβ:Β The United States Employee Retirement Income Security Act of 1974, as amended.
Β
βEuroclearβ:Β Euroclear Bank S.A./N.V., as operator of the Euroclear system.
Β
βEvent of Defaultβ:Β The meaning specified in SectionΒ 5.1 hereof.
Β
βExcepted Assetsβ:Β (i)Β The U.S.$250 proceeds of share capital contributed by ARMS Equity as the holder of the ordinary shares of the Issuer, the U.S.$250 representing a profit fee to the Issuer, and, in each case, any interest earned thereon and the bank account in which such amounts are held and (ii)Β the Preferred Share Distribution Account and all of the funds and other property from time to time deposited in or credited to the Preferred Share Distribution Account.
Β
βExchange Actβ:Β The Securities Exchange Act of 1934, as amended.
Β
βExchange Obligationβ: The meaning specified in SectionΒ 12.1(a(ii)) hereof.
Β
βExpense Accountβ:Β The account established pursuant to SectionΒ 10.7(a)Β hereof.
Β
βFATCAβ:Β Sections 1471 through 1474 of the Code and any related provisions of law, court decisions, administrative guidance or agreements with any taxing authority in respect thereof.
Β
βFinancial Assetβ:Β The meaning specified in SectionΒ 8-102(a)(9)Β of the UCC.
Β
βFinancing Statementsβ:Β Financing statements relating to the Assets naming the Issuer, as debtor, and the Trustee, on behalf of the Secured Parties, as secured party.
Β
βFitchβ:Β Fitch,Β Inc., Fitch Ratings,Β Ltd. and their subsidiaries including Derivative Fitch,Β Inc. and Derivative FitchΒ Ltd. and any successor or successors thereto.
Β
βGAAPβ:Β The meaning specified in SectionΒ 6.3(k)Β hereof.
Β
βGeneral Intangibleβ:Β The meaning specified in SectionΒ 9-102(a)(42) of the UCC.
Β
βGlobal Securitiesβ:Β The RuleΒ 144A Global Securities and the Regulation S Global Securities.
Β
βGoverning Documentsβ:Β With respect to (i)Β the Issuer, the memorandum and articles of association of the Issuer, as amended and restated and/or supplemented and in effect from time to time and certain resolutions of its Board of Directors and (ii)Β all other Persons, the articles of incorporation, certificate of incorporation, by-laws, certificate of limited partnership, limited partnership agreement, limited liability company agreement, certificate of formation, articles of association and similar charter documents, as applicable to any such Person.
Β
βGovernment Itemsβ:Β A security (other than a security issued by the Government National Mortgage Association) issued or guaranteed by the United States of America or an
Β
Β
agency or instrumentality thereof representing a full faith and credit obligation of the United States of America and, with respect to each of the foregoing, that is maintained in book-entry form on the records of a Federal Reserve Bank.
Β
βGrantβ:Β To grant, bargain, sell, warrant, alienate, remise, demise, release, convey, assign, transfer, mortgage, pledge, create and grant a security interest in and right of set-off against, deposit, set over and confirm.Β A Grant of the Assets or of any other security or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including without limitation the immediate continuing right to claim, collect, receive and take receipt for principal and interest payments in respect of the Assets (or any other security or instrument), and all other amounts payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Β
βHolderβ or βSecurityholderβ:Β With respect to any Note, the Person in whose name such Note is registered in the Notes Register.Β With respect to any Preferred Share, the Person in whose name such Preferred Share is registered in the register maintained by the Share Registrar.
Β
βIAIβ:Β An institutional βaccredited investorβ within the meaning of RuleΒ 501(a)(1), (2), (3)Β or (7)Β under Regulation D under the Securities Act.
Β
βIndentureβ:Β This instrument as originally executed and, if from time to time supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, as so supplemented or amended.
Β
βIndependentβ:Β As to any Person, any other Person (including, in the case of an accountant, or lawyer, a firm of accountants or lawyers and any member thereof or an investment bank and any member thereof) who (i)Β does not have and is not committed to acquire any material direct or any material indirect financial interest in such Person or in any Affiliate of such Person, and (ii)Β is not connected with such Person as an Officer, employee, promoter, underwriter, voting trustee, partner, director or Person performing similar functions.Β βIndependentβ when used with respect to any accountant may include an accountant who audits the books of such Person if in addition to satisfying the criteria set forth above the accountant is independent with respect to such Person within the meaning of RuleΒ 101 of the Code of Ethics of the American Institute of Certified Public Accountants.
Β
Whenever any Independent Personβs opinion or certificate is to be furnished to the Trustee such opinion or certificate shall state that the signer has read this definition and that the signer is Independent within the meaning hereof.
Β
βInformation Agentβ:Β The meaning specified in SectionΒ 14.13(b)Β hereof.
Β
βInitial Maturity Dateβ:Β With respect to any Loan Obligation, (i)Β the maturity date of such Loan Obligation without giving effect to any exercised extension options available under the terms of such Loan Obligation, or (ii)Β if the related borrower has exercised an
Β
Β
extension option, the maturity date of such Loan Obligation after giving effect to the exercised extension option, but without giving effect to any additional extension option available under the terms of such Loan Obligation.
Β
βInstrumentβ:Β The meaning specified in SectionΒ 9-102(a)(47) of the UCC.
Β
βInterest Accrual Periodβ:Β With respect to the Notes, (i)Β with respect to the first Payment Date, the period from and including the Closing Date to but excluding such first Payment Date and (ii)Β with respect to each successive Payment Date, the period from and including the immediately preceding Payment Date to, but excluding, such Payment Date.
Β
βInterest Advanceβ:Β The meaning specified in SectionΒ 10.9(a)Β hereof.
Β
βInterest Collection Accountβ:Β The trust account established pursuant to SectionΒ 10.2(a)Β hereof.
Β
βInterest Coverage Ratioβ: As of any Measurement Date, the ratio calculated in accordance with the assumptions set forth in SectionΒ 1.2(e)Β hereof by dividing:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (i)Β the sum of (A)Β Cash standing to the credit of the Expense Account, plus (B)Β the scheduled interest payments due (in each case regardless of whether the due date for any such interest payment has yet occurred) in the Due Period in which such Measurement Date occurs on (x)Β the Loan Obligations (excluding, subject to clause (3)Β below, accrued and unpaid interest on Defaulted Obligations); provided that no interest (or dividends or other distributions) will be included with respect to any Loan Obligation to the extent that such Loan Obligation does not provide for the scheduled payment of interest (or dividends or other distributions) in Cash and (y)Β the Eligible Investments held in the Payment Account, the Collection Accounts, the RDD Funding Account and the Expense Account (whether purchased with Interest Proceeds or Principal Proceeds), plus (C)Β Interest Advances, if any, advanced by the Advancing Agent or the Backup Advancing Agent, with respect to the related Payment Date, minus (ii)Β any amounts scheduled to be paid pursuant to SectionΒ 11.1(a)(i)(1)Β through (4)Β (other than any Loan Obligation Manager Fees that the Loan Obligation Manager has agreed to waive in accordance with this Indenture and the Loan Obligation Management Agreement); by
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the sum of (i)Β the scheduled interest on the ClassΒ A Notes payable on the Payment Date immediately following such Measurement Date, plus (ii)Β any ClassΒ A Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date, plus (iii)Β the scheduled interest on the ClassΒ B Notes payable immediately following such Measurement Date, plus (iv)Β any ClassΒ B Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date.
Β
βInterest Coverage Testβ:Β The test that will be met as of any Measurement Date on which any Notes remain Outstanding if the Interest Coverage Ratio as of such Measurement Date is equal to or greater than 120.00%.
Β
βInterest Distribution Amountβ:Β Each of the ClassΒ A Interest Distribution Amount and ClassΒ B Interest Distribution Amount.
Β
Β
βInterest Proceedsβ:Β With respect to any Payment Date, (A)Β the sum (without duplication) of (1)Β all Cash payments of interest (including any deferred interest and any amount representing the accreted portion of a discount from the face amount of a Loan Obligation or an Eligible Investment) or other distributions received during the related Due Period on all Loan Obligations other than Defaulted Obligations (net of the Servicing Fee and other amounts payable in accordance with the Servicing Agreement) and Eligible Investments, including, in the Loan Obligation Managerβs commercially reasonable discretion (exercised as of the trade date), the accrued interest received in connection with a sale of such Loan Obligations or Eligible Investments (to the extent such accrued interest was not applied to the purchase of Replacement Loan Obligations), in each case, excluding any accrued interest included in Principal Proceeds pursuant to clause (A)(3)Β or (4)Β of the definition of Principal Proceeds, (2)Β all make-whole premiums, yield maintenance or prepayment premiums or any interest amount paid in excess of the stated interest amount of a Loan Obligation received during the related Due Period, (3)Β all amendment, modification and waiver fees, late payment fees, commitment fees, exit fees, extension fees and other fees and commissions received by the Issuer during such Due Period in connection with such Loan Obligations and Eligible Investments (other than, in each such case, fees and commissions received in connection with the restructuring of a Defaulted Obligation or default of Loan Obligations and Eligible Investments), (4)Β those funds in the Expense Account designated as Interest Proceeds by the Loan Obligation Manager pursuant to SectionΒ 10.7(a), (5)Β all funds remaining on deposit in the Expense Account upon redemption of the Notes in whole, pursuant to SectionΒ 10.7(a), (6)Β Interest Advances, if any, advanced by the Advancing Agent or the Backup Advancing Agent, with respect to such Payment Date, (7)Β all accrued original issue discount on Eligible Investments, (8)Β any interest payments received in Cash by the Issuer during the related Due Period on any asset held by a Permitted Subsidiary that is not a Defaulted Obligation, (9)Β all payments of principal on Eligible Investments purchased with proceeds of items (A)(1), (2)Β and (3)Β of this definition, (10)Β Cash and Eligible Investments contributed by ARMS Equity pursuant to SectionΒ 12.2(c)Β and designated as βInterest Proceedsβ by ARMS Equity and (11)Β any excess proceeds received in respect of a Loan Obligation to the extent such proceeds are designated βInterest Proceedsβ by the Loan Obligation Manager in its sole discretion with notice to the Trustee on or before the related Determination Date; provided that Interest Proceeds will in no event include any payment or proceeds specifically defined as βPrincipal Proceedsβ in the definition thereof, minus (B)Β the aggregate amount of any Nonrecoverable Interest Advances that were previously reimbursed to the Advancing Agent or the Backup Advancing Agent.
Β
βInterest Shortfallβ:Β The meaning set forth in SectionΒ 10.9(a)Β hereof.
Β
βIssuerβ:Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., an exempted company incorporated under the laws of the Cayman Islands with limited liability, until a successor Person shall have become the Issuer pursuant to the applicable provisions of this Indenture, and thereafter βIssuerβ shall mean such successor Person.
Β
βIssuer Orderβ and βIssuer Requestβ:Β A written order or request (which may be in the form of a standing order or request) dated and signed in the name of the Issuer (and the Co-Issuer, if applicable) by an Authorized Officer of the Issuer (and by an Authorized Officer of the Co-Issuer, if applicable), or by an Authorized Officer of the Loan Obligation Manager.
Β
Β
βJunior Participationβ: One or more junior participation interests (or B Notes) in an Underlying Whole Loan pursuant to a Senior AB Participation, in which the related Senior Participation is a Loan Obligation that has been acquired by the Issuer.
Β
βLIBORβ:Β The meaning set forth in Schedule B attached hereto.
Β
βLIBOR Determination Dateβ:Β The meaning set forth in Schedule B attached hereto.
Β
βListβ:Β The meaning specified in SectionΒ 12.4(a)(ii)Β hereof.
Β
βListed Biddersβ:Β The meaning specified in SectionΒ 12.4(a)(ii)Β hereof.
Β
βLLC Managersβ:Β The managers of the Co-Issuer duly appointed by the sole member of the Co-Issuer (or, if there is only one manager of the Co-Issuer so duly appointed, such sole manager).
Β
βLoan Obligation Management Agreementβ:Β The Loan Obligation Management Agreement, dated as of the Closing Date, by and between the Issuer and the Loan Obligation Manager, as amended, supplemented or otherwise modified from time to time in accordance with its terms.
Β
βLoan Obligationβ and βLoan Obligationsβ:Β Any Whole Loan or Senior Participation acquired by the Issuer in accordance with the provisions of this Indenture.
Β
βLoan Obligation Fileβ: The meaning set forth in SectionΒ 3.3(d).
Β
βLoan Obligation Managerβ or βARCMβ:Β Arbor Realty Collateral Management, LLC, each of Arbor Realty Collateral Management, LLCβs permitted successors and assigns or any successor Person that shall have become the Loan Obligation Manager pursuant to the provisions of the Loan Obligation Management Agreement and thereafter βLoan Obligation Managerβ shall mean such successor Person.
Β
βLoan Obligation Manager Feeβ: The meaning set forth in the Loan Obligation Management Agreement.
Β
βLoan Obligation Management Standardβ:Β The meaning set forth in the Loan Obligation Management Agreement.
Β
βLoan Obligation Purchase Agreementβ: Any Loan Obligation Purchase agreement entered into on or about the Closing Date and any other Loan Obligation Purchase agreement entered into after the Closing Date if a purchase agreement is necessary to comply with this Indenture, which agreement is assigned to the Trustee pursuant to this Indenture.
Β
βLondon Banking Dayβ:Β The meaning set forth in Schedule B attached hereto.
Β
βLoss Value Paymentβ:Β A cash payment made to the Issuer by the Seller in connection with a breach of representation or warranty with respect to any Loan Obligation
Β
Β
pursuant to the Loan Obligation Purchase Agreement in an amount that the Loan Obligation Manager on behalf of the Issuer, subject to the consent of a majority of the holders of each ClassΒ of Notes (excluding any Note hold by any Seller or any of their respective affiliates), determines is sufficient to compensate the Issuer for such breach of representation or warranty, which Loss Value Payment will be deemed to cure sure breach of representation or warranty.
Β
βMajorityβ:Β With respect to:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any ClassΒ of Notes, the Holders of more than 50% of the Aggregate Outstanding Amount of the Notes of such Class; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Preferred Shares, the Preferred Shareholders representing more than 50% of the of the aggregate liquidation preference of outstanding Preferred Shares.
Β
βMandatory Redemptionβ:Β The meaning specified in SectionΒ 9.5 hereof.
Β
βMaturityβ:Β With respect to any Note, the date on which the unpaid principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity Date or by declaration of acceleration or otherwise.
Β
βMeasurement Dateβ:Β Any of the following: (i)Β the Closing Date, (ii)Β the date of acquisition or disposition of any Loan Obligation, (iii)Β any date on which any Loan Obligation becomes a Defaulted Obligation, (iv)Β each Determination Date, (v)Β the Portfolio Finalization Date and (vi)Β with reasonable notice to the Issuer and the Trustee, any other Business Day that the Rating Agency or the Holders of at least 66-2/3% of the Aggregate Outstanding Amount of any ClassΒ of Notes requests be a βMeasurement Dateβ; provided that, if any such date would otherwise fall on a day that is not a Business Day, the relevant Measurement Date will be the immediately preceding Business Day.
Β
βMinnesota Collateralβ:Β The meaning specified in SectionΒ 3.3(a)(v)Β hereof.
Β
βMonthly Reportβ:Β The meaning specified in SectionΒ 10.11(c)Β hereof.
Β
βMoodyβsβ:Β Xxxxxβx Investors Service,Β Inc., and its successors in interest.
Β
βMoodyβs Portfolio Finalization Date Deemed Rating Confirmationβ:Β A deemed written confirmation from Moodyβs of the ratings assigned by Xxxxxβx to the Notes on the Closing Date.
Β
βXxxxxβx Ratingβ:Β With respect to any Loan Obligation, the private credit assessment assigned to such Loan Obligation by Xxxxxβx for the Issuer.
Β
βXxxxxβx Rating Factorβ:Β With respect to any Loan Obligation, the number set forth in the table below opposite the Xxxxxβx Rating of such Loan Obligation:
Β
Β
Β
XxxxxβxΒ Rating |
Β |
XxxxxβxΒ RatingΒ Factor |
Β |
Β |
Β |
Β |
Β | ||
Aaa |
Β |
Β |
1 |
Β |
Β |
Β |
Β |
Β |
Β |
Aa1 |
Β |
Β |
10 |
Β |
Β |
Β |
Β |
Β |
Β |
Aa2 |
Β |
Β |
20 |
Β |
Β |
Β |
Β |
Β |
Β |
Aa3 |
Β |
Β |
40 |
Β |
Β |
Β |
Β |
Β |
Β |
A1 |
Β |
Β |
70 |
Β |
Β |
Β |
Β |
Β |
Β |
A2 |
Β |
Β |
120 |
Β |
Β |
Β |
Β |
Β |
Β |
A3 |
Β |
Β |
180 |
Β |
Β |
Β |
Β |
Β |
Β |
Baa1 |
Β |
Β |
260 |
Β |
Β |
Β |
Β |
Β |
Β |
Baa2 |
Β |
Β |
360 |
Β |
Β |
Β |
Β |
Β |
Β |
Baa3 |
Β |
Β |
610 |
Β |
Β |
Β |
Β |
Β |
Β |
Ba1 |
Β |
Β |
940 |
Β |
Β |
Β |
Β |
Β |
Β |
Ba2 |
Β |
Β |
1,350 |
Β |
Β |
Β |
Β |
Β |
Β |
Ba3 |
Β |
Β |
1,766 |
Β |
Β |
Β |
Β |
Β |
Β |
B1 |
Β |
Β |
2,220 |
Β |
Β |
Β |
Β |
Β |
Β |
B2 |
Β |
Β |
2,720 |
Β |
Β |
Β |
Β |
Β |
Β |
B3 |
Β |
Β |
3,490 |
Β |
Β |
Β |
Β |
Β |
Β |
Caa1 |
Β |
Β |
4,770 |
Β |
Β |
Β |
Β |
Β |
Β |
Caa2 |
Β |
Β |
6,500 |
Β |
Β |
Β |
Β |
Β |
Β |
Caa3 |
Β |
Β |
8,070 |
Β |
Β |
Β |
Β |
Β |
Β |
Ca or lower |
Β |
Β |
10,000 |
Β |
Β |
Β |
Β |
Β |
Β |
Β
βMoodyβs Recovery Rateβ:Β With respect to any Loan Obligation, 60%.
Β
βMoodyβs Test Modificationβ:Β The meaning specified in SectionΒ 12.4 hereof.
Β
βMoodyβs Weighted Average Rating Factorβ:Β An amount determined by (i)Β summing the products obtained by multiplying the Principal Balance of each Loan Obligation (excluding Defaulted Obligations) by its Xxxxxβx Rating Factor and (ii)Β dividing such sum by the aggregate outstanding Principal Balance of all such Loan Obligations and rounding the result up to the nearest whole number.
Β
βMulti-Family Propertyβ A real property with five or more residential rental units (including mixed use multi-family/office and multi-family/retail) as to which the majority of the underwritten revenue is from residential rental units.
Β
βNet Outstanding Portfolio Balanceβ:Β On any Measurement Date, the sum (without duplication) of:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Aggregate Principal Balance on such Measurement Date of the Loan Obligations (other than Defaulted Obligations);
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Aggregate Principal Balance of all Principal Proceeds held as Cash and Eligible Investments and all Cash and Eligible Investments held in the RDD Funding Account and the Unused Proceeds Account; and
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β with respect to each Defaulted Obligation, the Calculation Amount of such Defaulted Obligation;
Β
provided, however, that (A)Β with respect to each Defaulted Obligation that has been owned by the Issuer for more than three years after becoming a Defaulted Obligation, the Principal Balance of such Defaulted Obligation shall be zero for purposes of computing the Net Outstanding Portfolio Balance, and (B)Β with respect to each Defaulted Obligation as to which the Loan Obligation Manager has delivered written notice to the Issuer and the Trustee of its intent to engage in either (1)Β Credit Risk/Defaulted Obligation Cash Purchase or (2)Β an exchange for an Exchange Obligation, the Loan Obligation Manager will have 45 days to exercise such purchase
Β
Β
or exchange and during such period such Loan Obligation will not be treated as a Defaulted Obligation for purposes of computing the Net Outstanding Portfolio Balance.
Β
βNo Downgrade Confirmationβ:Β A confirmation from the Rating Agency that any proposed action, or failure to act or other specified event will not, in and of itself, result in the downgrade or withdrawal of the then-current rating assigned to any ClassΒ of Notes then rated by the Rating Agency.
Β
βNon-call Periodβ:Β The period from the Closing Date to and including the Business Day immediately preceding the Payment Date in FebruaryΒ 2015 during which no Optional Redemption is permitted to occur.
Β
βNon-Acquired Participationβ:Β With respect to any Senior Participation acquired by the Issuer, any related participation interest (whether a Senior Pari Passu Participation or a Junior Participation) in the related Underlying Whole Loan, which related participation interest is not acquired by the Issuer.
Β
βNon-Permitted Holderβ: The meaning specified in SectionΒ 2.13(b)Β hereof.
Β
βNonrecoverable Interest Advanceβ: Any Interest Advance previously made or proposed to be made pursuant to SectionΒ 10.9 hereof that the Advancing Agent or the Backup Advancing Agent, as applicable, has determined in its sole discretion, exercised in good faith, that the amount so advanced or proposed to be advanced plus interest expected to accrue thereon, will not be ultimately recoverable from subsequent payments or collections with respect to the related Loan Obligation.
Β
βNote Liquidation Eventβ:Β The meaning specified in SectionΒ 12.1(d)Β hereof.
Β
βNote Protection Testsβ:Β The Par Value Test and the Interest Coverage Test.
Β
βNoteholderβ:Β The Person in whose name such Note is registered in the Notes Register.
Β
βNote Interest Rateβ:Β With respect to the ClassΒ A Notes and the ClassΒ B Notes, the ClassΒ A Rate and the ClassΒ B Rate, respectively.
Β
βNotesβ:Β The ClassΒ A Notes and the ClassΒ B Notes, collectively, authorized by, and authenticated and delivered under, this Indenture.
Β
βNotes Registerβ and βNotes Registrarβ:Β The respective meanings specified in SectionΒ 2.5(a)Β hereof.
Β
βNotional Amountβ:Β In respect of the Preferred Shares, the per share notional amount of U.S.$1,000.Β The aggregate Notional Amount of the Preferred Shares on the Closing Date will be U.S.$82,987,000.
Β
βNRSROβ:Β Any nationally recognized statistical rating organization, other than the Rating Agency.
Β
Β
βNRSRO Certificationβ:Β A certification substantially in the form of ExhibitΒ G executed by a NRSRO in favor of the Issuer and the Information Agent that states that such NRSRO has provided the Issuer with the appropriate certifications under Exchange Act RuleΒ 17g-5(a)(3)(iii)(B)Β and that such NRSRO has access to the 17g-5 Website.
Β
βOffering Memorandumβ:Β The Offering Memorandum, dated JanuaryΒ 25, 2013, relating to the offering of the Notes.
Β
βOfficerβ:Β With respect to any corporation or limited liability company, including the Issuer, the Co-Issuer and the Loan Obligation Manager, any Director, Manager, the Chairman of the Board of Directors, the President, any Senior Vice President any Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, General Partner of such entity; and with respect to the Trustee, any Trust Officer.
Β
βOfficerβs Certificateβ:Β With respect to the Issuer, the Co-Issuer and the Loan Obligation Manager, any certificate executed by an Officer thereof.
Β
βOpinion of Counselβ:Β A written opinion addressed to the Trustee and the Rating Agency in form and substance reasonably satisfactory to the Trustee and the Rating Agency of an outside third party counsel of national recognition admitted to practice before the highest court of any state of the United States or the District of Columbia (or the Cayman Islands, in the case of an opinion relating to the laws of the Cayman Islands), which attorney may, except as otherwise expressly provided in this Indenture, be counsel for the Issuer, and which attorney shall be reasonably satisfactory to the Trustee.Β Whenever an Opinion of Counsel is required hereunder, such Opinion of Counsel may rely on opinions of other counsel who are so admitted and so satisfactory which opinions of other counsel shall accompany such Opinion of Counsel and shall either be addressed to the Trustee and the Rating Agency or shall state that the Trustee and the Rating Agency shall be entitled to rely thereon.
Β
βOptional Redemptionβ:Β The meaning specified in SectionΒ 9.1(c)Β hereof.
Β
βOutstandingβ:Β With respect to the Notes, as of any date of determination, all of the Notes or any ClassΒ of Notes, as the case may be, theretofore authenticated and delivered under this Indenture except:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notes theretofore canceled by the Notes Registrar or delivered to the Notes Registrar for cancellation;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notes or portions thereof for whose payment or redemption funds in the necessary amount have been theretofore irrevocably deposited with the Trustee or the Paying Agent in trust for the Holders of such Notes pursuant to SectionΒ 4.1(a)(ii); provided that, if such Notes or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, unless proof satisfactory to
Β
Β
the Trustee is presented that any such Notes are held by a holder in due course; and
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Notes alleged to have been mutilated, destroyed, lost or stolen for which replacement Notes have been issued as provided in SectionΒ 2.6;
Β
provided that in determining whether the Noteholders of the requisite Aggregate Outstanding Amount have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (x)Β Notes owned by the Issuer, the Co-Issuer or any Affiliate thereof shall be disregarded and deemed not to be Outstanding and (y)Β in relation to any amendment or other modification of, or assignment or termination of, any of the express rights or obligations of the Loan Obligation Manager under the Loan Obligation Management Agreement or this Indenture (including the exercise of any rights to remove the Loan Obligation Manager except with respect to the termination of the Loan Obligation Manager without cause and with respect to the replacement of the Loan Obligation Manager in instances where the Loan Obligation Manager has not been terminated for cause or where such replacement is not an Affiliate of the Loan Obligation Manager), Notes owned by the Loan Obligation Manager or any of its Affiliates, or by any accounts managed by them, shall be disregarded and deemed not to be Outstanding.Β In determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that the Trustee knows to be so owned shall be so disregarded.Β Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgeeβs right so to act with respect to such Notes and that the pledgee is not the Issuer, the Loan Obligation Manager or any other obligor upon the Notes or any Affiliate of the Issuer, the Loan Obligation Manager or such other obligor.
Β
βPar Value Ratioβ:Β As of any Measurement Date, the number (expressed as a percentage) calculated in accordance with the assumptions set forth in SectionΒ 1.2(d)Β by dividing (a)Β the sum of the Net Outstanding Portfolio Balance on such Measurement Date by (b)Β the sum of the aggregate outstanding principal amount of the ClassΒ A Notes and the ClassΒ B Notes and the amount of any unreimbursed Interest Advances.
Β
βPar Value Testβ:Β The test that will be met as of any Measurement Date on which any Notes remain Outstanding if the Par Value Ratio on such Measurement Date is equal to or greater than 144.25%.
Β
βParticipating Institutionβ:Β With respect to any participation, the entity that holds legal title to the participated asset.
Β
βPaying Agentβ:Β Any Person authorized by the Issuer and the Co-Issuer to pay the principal of or interest on any Notes on behalf of the Issuer and the Co-Issuer as specified in SectionΒ 7.2 hereof.
Β
βPayment Accountβ:Β The payment account of the Trustee in respect of the Notes established pursuant to SectionΒ 10.3 hereof.
Β
βPayment Dateβ:Β With respect to each ClassΒ of Notes, monthly on the 15th day of each calendar month (or if such day is not a Business Day, the next succeeding Business Day) to
Β
Β
and including the Stated Maturity Date related to such ClassΒ unless redeemed or repaid prior thereto, commencing on MarchΒ 15, 2013.
Β
βPermitted Subsidiaryβ: Any one or more wholly-owned, single purpose entities established exclusively for the purpose of taking title to mortgage, real estate or any Sensitive Asset in connection, in each case, with the exercise of remedies or otherwise.
Β
βPersonβ:Β An individual, corporation (including a business trust), partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated association or government or any agency or political subdivision thereof.
Β
βPlacement Agentβ:Β Xxxxxxx XβXxxxxΒ & Partners, L.P., in its capacity as the placement agent.
Β
βPlacement Agency Agreementβ:Β The placement agreement relating to the Notes dated as of the Closing Date by and among the Issuer, the Co-Issuer and the Placement Agent.
Β
βPledged Loan Obligationβ:Β On any date of determination, any Loan Obligation that has been Granted to the Trustee and not been released from the lien of this Indenture pursuant to SectionΒ 10.12 hereof.
Β
βPortfolio Finalization Dateβ:Β The date which is the earlier of (i)Β the 90thΒ day after the Closing Date; (ii)Β the first date on which the Aggregate Principal Balance of the Pledged Loan Obligations is at least equal to the Portfolio Finalization Date Collateral Principal Balance and (iii)Β the date that the Loan Obligation Manager determines, in its sole discretion, and notifies the Trustee of such determination, that investment in Additional Loan Obligations is no longer practical or desirable.
Β
βPortfolio Finalization Date Collateral Principal Balanceβ:Β U.S.$259,987,000.
Β
βPost-Closing Acquisition Periodβ:Β The period commencing on the Closing Date and ending on the earlier of (i)Β the Portfolio Finalization Date and (ii)Β the occurrence of an Event of Default (after the expiry of any applicable grace periods).
Β
βPreferred Shareholderβ:Β A registered owner of Preferred Shares as set forth in the share register maintained by the Share Registrar.
Β
βPreferred Sharesβ:Β The preferred shares issued by the Issuer concurrently with the issuance of the Notes.
Β
βPreferred Share Distribution Accountβ:Β A segregated account established and designated as such by the Preferred Shares Paying Agent pursuant to the Preferred Share Paying Agency Agreement.
Β
βPreferred Shares Distribution Amountβ:Β Any remaining Interest Proceeds and Principal Proceeds, if any, to be released from the lien of this Indenture and paid (upon standing order of the Issuer) to the Preferred Shares Paying Agent for deposit into the Preferred Share
Β
Β
Distribution Account for distribution to the holders of the Preferred Shares after payment by the Trustee of all distributions which take priority pursuant to SectionΒ 11.1(a).
Β
βPreferred Share Paying Agency Agreementβ:Β The Preferred Share Paying Agency Agreement, dated as of the Closing Date, among the Issuer, the Preferred Shares Paying Agent relating to the Preferred Shares and the Share Registrar, as amended from time to time in accordance with the terms thereof.
Β
βPreferred Shares Paying Agentβ:Β The Bank, solely in its capacity as Preferred Shares Paying Agent under the Preferred Share Paying Agency Agreement and not individually, unless a successor Person shall have become the Preferred Shares Paying Agent pursuant to the applicable provisions of the Preferred Share Paying Agency Agreement, and thereafter Preferred Shares Paying Agent shall mean such successor Person.
Β
βPrincipal Balanceβ or βparβ:Β With respect to any Loan Obligation or Eligible Investment, as of any date of determination, the outstanding principal amount of such Loan Obligation or Eligible Investment; provided that:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Principal Balance of any Eligible Investment that does not pay Cash interest on a current basis will be the accreted value thereof; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Principal Balance of any RDD Obligation also will be deemed to include the unfunded portion of such RDD Obligation on deposit in the RDD Funding Account.
Β
βPrincipal Collection Accountβ:Β The trust account established pursuant to SectionΒ 10.2(a)Β hereof.
Β
βPrincipal Proceedsβ:Β With respect to any Payment Date, (A)Β the sum (without duplication) of (1)Β all principal payments (including Unscheduled Principal Payments and any casualty or condemnation proceeds and any proceeds from the exercise of remedies (including liquidation proceeds)) received during the related Due Period in respect of (a)Β Eligible Investments (other than Eligible Investments purchased with Interest Proceeds, Eligible Investments in the Expense Account, Eligible Investments in the RDD Funding Account and any amount representing the accreted portion of a discount from the face amount of a Loan Obligation or an Eligible Investment) and (b)Β Loan Obligations as a result of (i)Β a maturity, scheduled amortization or mandatory prepayment on a Loan Obligation, (ii)Β optional prepayments made at the option of the related borrower, (iii)Β recoveries on Defaulted Obligations or (iv)Β any other principal payments received with respect to Loan Obligations, (2)Β all fees and commissions received during such Due Period in connection with Defaulted Obligations and Eligible Investments and the restructuring or default of such Defaulted Obligations and Eligible Investments, (3)Β any interest received during such Due Period on such Loan Obligations or Eligible Investments to the extent such interest constitutes proceeds from accrued interest purchased with Principal Proceeds other than accrued interest purchased by the Issuer on or prior to the Closing Date and interest included in clauseΒ (A)(1)Β of the definition of Interest Proceeds, (4)Β Sale Proceeds received during such Due Period in respect of sales (excluding those previously reinvested or currently being reinvested in Loan Obligations in accordance with the
Β
Β
Transaction Documents and excluding accrued interest included in Sale Proceeds (unless such accrued interest was purchased with Principal Proceeds) that are designated by the Loan Obligation Manager as Interest Proceeds in accordance with clauseΒ (A)(1)Β of the definition of Interest Proceeds), (5)Β all Cash payments of interest received during such Due Period on Defaulted Obligations, (6)Β funds transferred to the Principal Collection Account from the RDD Funding Account in respect of amounts previously held on deposit in respect of unfunded commitments for RDD Obligations that have been sold or otherwise disposed of before such commitments thereunder have been drawn or as to which excess funds remain, (7)Β any principal payments received in Cash by the Issuer during the related Due Period on any asset held by a Permitted Subsidiary, (8)Β any Loss Value Payments received by the Issuer from a Seller, (9)Β all other payments received in connection with the Loan Obligations and Eligible Investments that are not included in Interest Proceeds (10)Β after the Portfolio Finalization Date, all amounts in the Unused Proceeds Account and (11)Β all Cash and Eligible Investments contributed by ARMS Equity pursuant to the terms of SectionΒ 12.2(c)Β and designated as βPrincipal Proceedsβ by ARMS Equity; provided that in no event will Principal Proceeds include any proceeds from the Excepted Assets minus (B)(1)Β the aggregate amount of any Nonrecoverable Interest Advances that were not previously reimbursed to the Advancing Agent or the Backup Advancing Agent from Interest Proceeds and (2)Β the portion of such Principal Proceeds previously reinvested or currently being held for reinvestment in Replacement Loan Obligations if the Issuer is permitted to purchase Replacement Loan Obligations in accordance with SectionΒ 12.2.
Β
βPriority of Paymentsβ:Β The meaning specified in SectionΒ 11.1(a)Β hereof.
Β
βProceedingβ:Β Any suit in equity, action at law or other judicial or administrative proceeding.
Β
βPurchase Priceβ: The purchase price identified for each Loan Obligation against its name in Schedule A attached hereto.
Β
βQIBβ:Β A βqualified institutional buyerβ as defined in RuleΒ 144A.
Β
βQualified Purchaserβ: A βqualified purchaserβ within the meaning of SectionΒ 2(a)(51) of the 1940 Act or an entity owned exclusive by one or more such βqualified purchasers.β
Β
βQualified REIT Subsidiaryβ:Β A corporation that, for U.S. federal tax purposes, is wholly-owned by a real estate investment trust under SectionΒ 856(i)(2)Β of the Internal Revenue Code of 1986, as amended.
Β
βRating Agencyβ: Xxxxxβx and any successor thereto, or, with respect to the Assets generally, if at any time Xxxxxβx or any such successor ceases to provide rating services with respect to the Notes or certificates similar to the Notes, any other NRSRO selected by the Issuer and reasonably satisfactory to a Majority of the Notes voting as a single Class.
Β
βRating Agency Conditionβ: A condition that is satisfied if:
Β
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the party required to satisfy the Rating Agency Condition (the βRequesting Partyβ) has made a written request to the Rating Agency for a No Downgrade Confirmation; and
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any one of the following has occurred:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β a No Downgrade Confirmation has been received; or
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (A)Β within 10 business days of such request being sent to the Rating Agency, the Rating Agency has not replied to such request or has responded in a manner that indicates that the Rating Agency is neither reviewing such request nor waiving the requirement for confirmation;
Β
(B)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Requesting Party has confirmed that the Rating Agency has received the confirmation request,
Β
(C)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Requesting Party promptly requests the No Downgrade Confirmation a second time; and
Β
(D)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β there is no response to either confirmation request within five (5)Β business days of such second request.
Β
βRating Confirmation Failureβ:Β The meaning specified in SectionΒ 7.19(b)Β hereof.
Β
βRDD Funding Accountβ:Β The account established pursuant to SectionΒ 10.6(a)Β hereof.
Β
βRDD Funding Advanceβ:Β With respect to RDD Obligations, one or more future advances that the Issuer is required to make to the obligor under the Underlying Instruments relating thereto, subject to satisfaction of conditions precedent specified therein.
Β
βRDD Obligationβ: Any Loan Obligation that requires the lender to make one or more additional advances to the borrower upon the satisfaction of certain conditions precedent specified in the related Underlying Instruments.
Β
βRecord Dateβ: The date on which the Holders of Notes entitled to receive a payment in respect of principal or interest on the succeeding Payment Date is determined, such date as to any Payment Date being the 15th day (whether or not a Business Day) prior to the applicable Payment Date.
Β
βRedemption Dateβ:Β Any Payment Date specified for a redemption of the Securities pursuant to SectionΒ 9.1 hereof.
Β
βRedemption Date Statementβ:Β The meaning specified in SectionΒ 10.11(i)Β hereof.
Β
Β
βRedemption Priceβ: The Redemption Price of each ClassΒ of Notes or the Preferred Shares, as applicable, on a Redemption Date will be calculated as follows:
Β
ClassΒ A Notes.Β The redemption price for the ClassΒ A Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the ClassΒ A Notes to be redeemed, together with the ClassΒ A Interest Distribution Amount (plus any ClassΒ A Defaulted Interest Amount) due on the applicable Redemption Date;
Β
ClassΒ B Notes.Β The redemption price for the ClassΒ B Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the ClassΒ B Notes to be redeemed, together with the ClassΒ B Interest Distribution Amount (plus any ClassΒ B Defaulted Interest Amount) due on the applicable Redemption Date; and
Β
Preferred Shares.Β The redemption price for the Preferred Shares will be calculated on the related Determination Date and will be equal to the sum of all net proceeds from the sale of the Assets in accordance with ArticleΒ 12 hereof and Cash (other than the Issuerβs rights, title and interest in the property described in clause (i)Β of the definition of βExcepted Assetsβ), if any, remaining after payment of all amounts and expenses, including payments made in respect of the Notes, described under clauses (1)Β through (10)Β of SectionΒ 11.1(a)(i)Β and clauses (1)Β through (6)Β of SectionΒ 11.1(a)(ii); provided that, if there are no such net proceeds or Cash remaining, the redemption price for the Preferred Shares shall be equal to U.S.$0.
Β
βReference Banksβ:Β The meaning set forth in Schedule S attached hereto.
Β
βRegisteredβ:Β With respect to any debt obligation, a debt obligation that is issued after JulyΒ 18, 1984, and that is in registered form for purposes of the Code.
Β
βRegistered Office Agreementβ:Β The registered office agreement dated JanuaryΒ DecemberΒ 13, 2012 between the Issuer and MaplesFS Limited as registered office provider, as modified, supplemented and in effect from time to time.
Β
βRegistered Securityβ:Β The meaning specified in SectionΒ 3.3(a)(iii)Β hereof.
Β
βRegulation Sβ:Β Regulation S under the Securities Act.
Β
βRegulation S Global Securityβ:Β The meaning specified in SectionΒ 2.2(b)(ii)Β hereof.
Β
βReimbursement Interestβ:Β Interest accrued on the amount of any Interest Advance made by the Advancing Agent or the Backup Advancing Agent, for so long as it is outstanding, at the Reimbursement Rate.
Β
βReimbursement Rateβ:Β A rate per annum equal to the βprime rateβ as published in the βMoney Ratesβ section of the Wall Street Journal, as such βprime rateβ may change from time to time.Β If more than one βprime rateβ is published in The Wall Street Journal for a day, the average of such βprime ratesβ will be used, and such average will be rounded up to the nearest one eighth of one percent (0.125%).Β If the βprime rateβ contained in The Wall Street Journal is not readily ascertainable, the Loan Obligation Manager will select an equivalent publication that
Β
Β
publishes such βprime rate,β and if such βprime ratesβ are no longer generally published or are limited, regulated or administered by a governmental authority or quasigovernmental body, then the Loan Obligation Manager will select, in its reasonable discretion, a comparable interest rate index.
Β
βREITβ:Β A βreal estate investment trustβ under the Code.
Β
βReplacement Loan Obligationβ:Β Any Loan Obligation that is acquired after the Closing Date that satisfies the Eligibility Criteria and the Replacement Criteria in accordance with the terms of SectionΒ 12.2(a)Β hereof.
Β
βReplacement Criteriaβ:Β The meaning specified in SectionΒ 12.2(a)Β hereof.
Β
βReplacement Periodβ:Β The period beginning on the Closing Date and ending on and including the first to occur of any of the following events or dates:Β (i)Β the end of the Due Period related to the Payment Date in FebruaryΒ 2015; (ii)Β the end of the Due Period related to the Payment Date on which all of the Securities are redeemed as described herein under SectionΒ 9.1; and (iii)Β the date on which an Event of Default has occurred.
Β
βRepurchase Priceβ: The meaning specified in SectionΒ 16.3(c)Β hereof.
Β
βRepurchase Requestβ:Β The meaning specified in SectionΒ 7.17 hereof.
Β
βRuleΒ 17g-5β:Β The meaning specified in SectionΒ 14.13 hereof.
Β
βRuleΒ 144Aβ:Β RuleΒ 144A under the Securities Act.
Β
βRuleΒ 144A Global Securityβ:Β The meaning specified in SectionΒ 2.2(b)(i)Β hereof.
Β
βRuleΒ 144A Informationβ:Β The meaning specified in SectionΒ 7.13 hereof.
Β
βS&Pβ:Β StandardΒ & Poorβs Ratings Services, a division of The XxXxxx-Xxxx Companies,Β Inc., and its successors in interest.
Β
βSaleβ:Β The meaning specified in SectionΒ 5.17(a)Β hereof.
Β
βSale Proceedsβ:Β All proceeds (including accrued interest) received with respect to Loan Obligations and Eligible Investments as a result of sales of such Loan Obligations and Eligible Investments, sales in connection with the exercise of a purchase option by the holder of a Non-Acquired Participation or a mezzanine lender, and sales in connection with a repurchase for a breach of a representation or warranty, in each case net of any reasonable out-of-pocket expenses of the Loan Obligation Manager or the Trustee in connection with any such sale.
Β
βSchedule of Closing Date Loan Obligationsβ:Β The Loan Obligations listed on Schedule A attached hereto, which Schedule shall include the Principal Balance, the spread and the relevant floating reference rate, the maturity date, the Xxxxxβx Rating of each such Loan Obligation.
Β
Β
βScheduled Distributionβ:Β With respect to any Loan Obligation or Eligible Investment, for each Due Date, the scheduled payment of principal, interest or fee or any dividend or premium payment due on such Due Date or any other distribution with respect to such Loan Obligation or Eligible Investment, determined in accordance with the assumptions specified in SectionΒ 1.2 hereof.
Β
βSECβ:Β The Securities and Exchange Commission.
Β
βSecured Partiesβ:Β Collectively, the Trustee, the Noteholders and the Loan Obligation Manager, each as their interests appear in applicable Transaction Documents.
Β
βSecuritiesβ:Β Collectively, the Notes and the Preferred Shares.
Β
βSecurities Accountβ:Β The meaning specified in SectionΒ 8-501(a)Β of the UCC.
Β
βSecurities Account Control Agreementβ:Β The meaning specified in SectionΒ 3.3(a)Β hereof.
Β
βSecurities Actβ:Β The Securities Act of 1933, as amended.
Β
βSecurities Intermediaryβ:Β The meaning specified in SectionΒ 8-102(a)(14) of the UCC.
Β
βSecurity Entitlementβ:Β The meaning specified in SectionΒ 8-102(a)(17) of the UCC.
Β
βSecurityβ:Β Any Note or Preferred Share or, collectively, the Notes and Preferred Shares, as the context may require.
Β
βSellerβ:Β The meaning specified in the applicable Loan Obligation Purchase Agreement.
Β
βSenior AB Participationβ: A Loan Obligation that is a participation interest (or an A Note) in an Underlying Whole Loan pursuant to a participation agreement (or intercreditor agreement) in which the interest acquired by the Issuer is senior to one or more Junior Participations.
Β
βSenior Pari Passu Participationβ:Β A Loan Obligation that is a participation interest in an Underlying Whole Loan in which the interest acquired by the Issuer is pari passu with one or more other Senior Pari Passu Participation Interests that are each Non-Acquired Participations and which each are the senior-most interest in such Underlying Whole Loan.
Β
βSenior Participationβ:Β A Loan Obligation that is either a senior participation interest (including A Notes and senior or pari passu participation interests) in an Underlying Whole Loan pursuant to a Senior AB Participation, in which the related Junior Participation is a Non-Acquired Participation.
Β
Β
βSensitive Assetβ: means (i)Β a Loan Obligation, or a portion thereof, or (ii)Β a real property or other interest (including, without limitation, an interest in real property) resulting from the conversion, exchange, other modification or exercise of remedies with respect to a Loan Obligation or portion thereof, in either case, as to which the Loan Obligation Manager has determined, based on an Opinion of Counsel, could give rise to material liability of the Issuer (including liability for taxes) if held directly by the Issuer.
Β
βServicing Agreementβ:Β The Servicing Agreement, dated as of the Closing Date, by and among the Issuer, the Trustee, the Loan Obligation Manager and the CLO Servicer, as amended, supplemented or otherwise modified from time to time in accordance with its terms.
Β
βServicing Feeβ:Β With respect to each Due Period the aggregate amount of all servicing fees payable to the CLO Servicer under the Servicing Agreement and any backup servicer named therein or in any backup servicing agreement to which the Issuer is a party during such Due Period.
Β
βShare Registrarβ:Β MaplesFS Limited, unless a successor Person shall have become the Share Registrar pursuant to the applicable provisions of the Preferred Share Paying Agency Agreement, and thereafter βShare Registrarβ shall mean such successor Person.
Β
βSpecified Personβ:Β The meaning specified in SectionΒ 2.6(a)Β hereof.
Β
βStated Maturity Dateβ:Β The Payment Date occurring in FebruaryΒ 2023.
Β
βSubordinate Interestβ:Β The meaning specified in SectionΒ 13.1 hereof.
Β
βTax Eventβ: (i)Β Any borrower is, or on the next scheduled payment date under any Loan Obligation, will be, required to deduct or withhold from any payment under any Loan Obligation to the Issuer for or on account of any tax for whatever reason and such borrower is not required to pay to the Issuer such additional amount as is necessary to ensure that the net amount actually received by the Issuer (free and clear of taxes, whether assessed against such borrower or the Issuer) will equal the full amount that the Issuer would have received had no such deduction or withholding been required, (ii)Β any jurisdiction imposes net income, profits, or similar tax on the Issuer or (iii)Β the Issuer fails to maintain its status as a Qualified REIT Subsidiary or other disregarded entity of a REIT for U.S. federal income tax purposes.Β Withholding taxes imposed under FATCA, if any, shall be disregarded in applying the definition of βTax Event.β
Β
βTax Materiality Conditionβ:Β The condition that will be satisfied if either (i)Β as a result of the occurrence of a Tax Event, a tax or taxes are imposed on the Issuer or withheld from payments to the Issuer and with respect to which the Issuer receives less than the full amount that the Issuer would have received had no such deduction occurred and such amount exceeds, in the aggregate, U.S.$1 million during any 12-month period or (ii)Β the Issuer fails to maintain its status as a Qualified REIT Subsidiary or other disregarded entity of a REIT for U.S. federal income tax purposes.
Β
βTax Redemptionβ:Β The meaning specified in SectionΒ 9.1(b)Β hereof.
Β
Β
βTotal Redemption Priceβ:Β The amount equal to funds sufficient to pay all amounts and expenses described under clauses (1)Β through (4)Β and (9)Β of SectionΒ 11.1(a)(i)Β and to redeem all Notes at their applicable Redemption Prices.
Β
βTransaction Documentsβ:Β This Indenture, the Loan Obligation Management Agreement, the Loan Obligation Purchase Agreements, the Placement Agency Agreement, the Company Administration Agreement, the Preferred Share Paying Agency Agreement, the Servicing Agreement, the Collateral Administration Agreement and the Securities Account Control Agreement.
Β
βTransfer Agentβ:Β The Person or Persons, which may be the Issuer, authorized by the Issuer to exchange or register the transfer of Notes.
Β
βTreasury Regulationsβ:Β Temporary or final regulations promulgated under the Code by the United States Treasury Department.
Β
βTrust Officerβ:Β When used with respect to the Trustee, any officer within the Global Trust Services Group of the Corporate Trust Office (or any successor group of the Trustee) including any vice president, assistant vice president or officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred at the Global Trust Services Group of the Corporate Trust Office because of his knowledge of and familiarity with the particular subject and who is directly responsible for the administration of this Indenture.
Β
βTrusteeβ:Β U.S. Bank National Association, a national banking association, solely in its capacity as trustee hereunder, unless a successor Person shall have become the Trustee pursuant to the applicable provisions of this Indenture, and thereafter βTrusteeβ shall mean such successor Person.
Β
βUCCβ:Β The applicable Uniform Commercial Code.
Β
βUncertificated Securityβ:Β The meaning specified in SectionΒ 3.3(a)(ii)Β hereof.
Β
βUnderlying Instrumentsβ:Β The indenture, loan agreement, note, mortgage, intercreditor agreement, participation agreement or other agreement pursuant to which a Loan Obligation or Eligible Investment has been issued or created and each other agreement that governs the terms of or secures the obligations represented by such Loan Obligation or Eligible Investment or of which holders of such Loan Obligation or Eligible Investment are the beneficiaries.
Β
βUnderlying Mortgaged Propertyβ: With respect to a Loan Obligation that is (i)Β a Whole Loan, the commercial mortgage property or properties securing the Whole Loan and (ii)Β a Senior Participation, the commercial mortgage property or properties securing the Underlying Whole Loan.
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βUnderlying Whole Loanβ:Β With respect to any Loan Obligation that is a Senior Participation, the Whole Loan in which such Senior Participation represents a participation interest.
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βUnited Statesβ and βU.S.β: The United States of America, including any state and any territory or possession administered thereby.
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βUnregistered Securitiesβ:Β The meaning specified in SectionΒ 5.17(c)Β hereof.
Β
βUnscheduled Principal Paymentsβ:Β Any proceeds received by the Issuer from an unscheduled prepayment or redemption (in whole but not in part) by the obligor of a Loan Obligation (or, in the case of a Senior Participation, the related Underlying Whole Loan) prior to the maturity date of such Loan Obligation (or, in the case of a Senior Participation, the related Underlying Whole Loan).
Β
βUnused Proceeds Accountβ:Β The trust account established pursuant to SectionΒ 10.4(a)Β hereof.
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βU.S. Personβ: The meaning specified in Regulation S.
Β
βWeighted Average Lifeβ:Β As of any Measurement Date with respect to the Loan Obligations (other than Defaulted Obligations), the number obtained by (i)Β summing the products obtained by multiplying (a)Β the Average Life at such time of each Loan Obligation (other than Defaulted Obligations) by (b)Β the outstanding Principal Balance of such Loan Obligation and (ii)Β dividing such sum by the Aggregate Principal Balance at such time of all Loan Obligations (other than Defaulted Obligations).Β For purposes of this definition, βAverage Lifeβ means, on any Measurement Date with respect to any Loan Obligation (other than a Defaulted Obligation), the quotient obtained by the Loan Obligation Manager by dividing (i)Β the sum of the products of (a)Β the number of years (rounded to the nearest one tenth thereof) from such Measurement Date to the respective dates of each successive expected distribution of principal of such Loan Obligation and (b)Β the respective amounts of such expected distributions of principal by (ii)Β the sum of all successive expected distributions of principal on such Loan Obligation.
Β
βWeighted Average Spreadβ:Β As of any date of determination, the number obtained (rounded up to the next 0.001%), by (A)Β summing the products obtained by multiplying (i)Β with respect to any Loan Obligation (other than a Defaulted Obligation), the greater of (x)Β the current stated spread above LIBOR (net of any servicing fees and expenses) at which interest accrues on each such Loan Obligation and (y)Β if such Loan Obligation provides for a minimum interest rate payable thereunder, the excess, if any, of the minimum interest rate applicable to such Loan Obligation (net of any servicing fees and expenses) over LIBOR by (ii)Β the Principal Balance of such Loan Obligation as of such date, and (B)Β dividing such sum by the aggregate Principal Balance of all Loan Obligations (excluding all Defaulted Obligations).
Β
βWhole Loanβ:Β A commercial mortgage loan secured by a first-lien mortgage on a Multi-Family Property.
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Β
SectionΒ 1.2Β Β Β Β Β Β Β Β Β Β Β Assumptions as to Assets.
Β
(a)Β Β Β Β Β Β Β Β Β Β In connection with all calculations required to be made pursuant to this Indenture with respect to Scheduled Distributions on any Loan Obligation and Eligible Investment, or any payments on any other Assets, and with respect to the income that can be earned on Scheduled Distributions on any Loan Obligation or Eligible Investment and on any other amounts that may be received for credit to the applicable Collection Account, the provisions set forth in this SectionΒ 1.2 shall be applied.
Β
(b)Β Β Β Β Β Β Β Β Β Β All calculations with respect to Scheduled Distributions on the Loan Obligations and Eligible Investments shall be made on the basis of information as to the terms of each such Asset and upon report of payments, if any, received on such Asset that are furnished by or on behalf of the related borrower, obligor or issuer of such Asset and, to the extent they are not manifestly in error, such information or report may be conclusively relied upon in making such calculations.
Β
(c)Β Β Β Β Β Β Β Β Β Β For each Due Period, the Scheduled Distribution on any Loan Obligation (other than a Defaulted Obligation, which, except as otherwise provided herein, shall be assumed to have a Scheduled Distribution of zero) or Eligible Investment shall be the sum of (i)Β the total amount of payments and collections in respect of such Loan Obligation or Eligible Investment (including all Sales Proceeds received during the Due Period and not reinvested in Replacement Loan Obligations or retained in the Principal Collection Account for subsequent reinvestment) that, if paid as scheduled, will be available in the Collection Accounts at the end of such Due Period for payment on the Notes and of expenses of the Issuer and the Co-Issuer pursuant to the Priority of Payments and (ii)Β any such amounts received in prior Due Periods that were not disbursed on a previous Payment Date and do not constitute amounts which have been used as reimbursement with respect to a prior Interest Advance pursuant to the terms of this Indenture. On any date of determination, the amount of any Scheduled Distribution due on any future date with respect to any Loan Obligation as to which any interest or other payment thereon is subject to withholding tax of any relevant jurisdiction shall be assumed to be made net of any such uncompensated withholding tax based upon withholding tax rates in effect on such date of determination.
Β
(d)Β Β Β Β Β Β Β Β Β Β For purposes of calculating the Par Value Ratio (1)Β an appraisal reduction of a Loan Obligation will be assumed to result in an implied reduction of Principal Balance for such Loan Obligation only if such appraisal reduction is intended to reduce the interest payable on such Loan Obligation and only in proportion to such interest reduction and (2)Β any Loan Obligation that has sustained an implied reduction of Principal Balance due to an appraisal reduction will not be considered a Defaulted Obligation solely due to such implied reduction.
Β
(e)Β Β Β Β Β Β Β Β Β Β For purposes of calculating the Interest Coverage Ratio, (1)Β the expected interest income on the Loan Obligations and Eligible Investments and the expected interest payable on the Notes shall be calculated using the interest rates applicable thereto on the applicable Measurement Date, (2)Β accrued original issue discount on Eligible Investments shall be deemed to be Scheduled Distributions due on the date such original issue discount is scheduled to be paid, (3)Β with respect to each Defaulted Obligation as to which the Loan Obligation Manager has delivered written notice to the Issuer and the Trustee of its intent to
Β
Β
engage in either (x)Β Credit Risk/Defaulted Obligation Cash Purchase or (y)Β an exchange for an Exchange Obligation, the Loan Obligation Manager will have 45 days to exercise such purchase or exchange and during such period such Loan Obligation will not be treated as a Defaulted Obligation, (4)Β there will be excluded all scheduled or deferred payments of interest on or principal of Loan Obligations and any payment that the Loan Obligation Manager has determined in its reasonable judgment will not be made in cash or received when due and (5)Β with respect to any Loan Obligation as to which any interest or other payment thereon is subject to withholding tax of any relevant jurisdiction, each payment thereon shall be deemed to be payable net of such withholding tax unless the related borrower is required to make additional payments to fully compensate the Issuer for such withholding taxes (including in respect of any such additional payments).
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Each Scheduled Distribution receivable with respect to a Loan Obligation or Eligible Investment shall be assumed to be received on the applicable Due Date, and each such Scheduled Distribution shall be assumed to be immediately deposited in the applicable Collection Account except to the extent the Loan Obligation Manager has a reasonable expectation that such Scheduled Distribution will not be received on the applicable Due Date.Β All such funds shall be assumed to continue to earn interest until the date on which they are required to be available in the applicable Collection Account for transfer to the Payment Account for application, in accordance with the terms hereof, to payments of principal of or interest on the Notes or other amounts payable pursuant to this Indenture.
Β
(g)Β Β Β Β Β Β Β Β Β Β All calculations required to be made and all reports which are to be prepared pursuant to this Indenture with respect to the Assets, shall be made on the basis of the date on which the Issuer makes a binding commitment to purchase or sell a Loan Obligation or Eligible Investment rather than the date upon which such purchase or sale settles.
Β
SectionΒ 1.3Β Β Β Β Β Β Β Β Β Β Β Interest Calculation Convention.
Β
All calculations of interest hereunder that are made with respect to the Notes shall be made on the basis of the actual number of days during the related Interest Accrual Period divided by 360.
Β
SectionΒ 1.4Β Β Β Β Β Β Β Β Β Β Β Rounding Convention.
Β
Unless otherwise specified herein, test calculations that evaluate to a percentage will be rounded to the nearest ten thousandth of a percentage point and test calculations that evaluate to a number or decimal will be rounded to the nearest one hundredth of a percentage point.
Β
Β
ARTICLEΒ 2
Β
THE NOTES
Β
SectionΒ 2.1Β Β Β Β Β Β Β Β Β Β Β Forms Generally.
Β
The Notes and the Trusteeβs or Authenticating Agentβs certificate of authentication thereon (the βCertificate of Authenticationβ) shall be in substantially the forms required by this ArticleΒ 2, 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 and such legends or endorsements placed thereon, as may be consistent herewith, determined by the Authorized Officers of the Issuer and the Co-Issuer, executing such Notes as evidenced by their execution of such Notes.Β Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
Β
SectionΒ 2.2Β Β Β Β Β Β Β Β Β Β Β Forms of Notes and Certificate of Authentication.
Β
(a)Β Β Β Β Β Β Β Β Β Β Form.Β The form of each ClassΒ of Notes including the Certificate of Authentication, shall be substantially as set forth in Exhibits A and B hereto.
Β
(b)Β Β Β Β Β Β Β Β Β Β Global Securities and Definitive Notes.
Β
(i)Β Β Β Β Β Β Β Β Β Β Β The Notes initially offered and sold in the United States to (or to U.S. Persons who are) QIBs shall be represented by one or more permanent global notes in definitive, fully registered form without interest coupons with the applicable legend set forth in Exhibits A and B hereto added to the form of such Notes (each, a βRuleΒ 144A Global Securityβ), which shall be registered in the name of the nominee of the Depository and deposited with the Trustee, at its Corporate Trust Office, as custodian for the Depository, duly executed by the Issuer and the Co-Issuer and authenticated by the Trustee as hereinafter provided.Β The aggregate principal amount of the RuleΒ 144A Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Depository or its nominee, as the case may be, as hereinafter provided.
Β
(ii)Β Β Β Β Β Β Β Β Β Β The Notes initially offered and sold in the United States to (or to U.S. Persons who are) IAIs shall be issued in definitive form, registered in the name of the legal or beneficial owner thereof attached without interest coupons with the applicable legend set forth in Exhibits A and B hereto added to the form of such Notes (each a βDefinitive Noteβ), which shall be duly executed by the Issuer and the Co-Issuer and authenticated by the Trustee as hereinafter provided.Β The aggregate principal amount of the Definitive Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Depository or its nominee, as the case may be, as hereinafter provided.
Β
(iii)Β Β Β Β Β Β Β Β Β The Notes initially sold in offshore transactions in reliance on Regulation S shall be represented by one or more permanent global notes in definitive, fully registered form without interest coupons with the applicable legend set forth in Exhibits
Β
Β
A and B, hereto added to the form of such Notes (each, a βRegulation S Global Securityβ), which shall be deposited on behalf of the subscribers for such Notes represented thereby with the Trustee as custodian for the Depository and registered in the name of a nominee of the Depository for the respective accounts of Euroclear and Clearstream, Luxembourg or their respective depositories, duly executed by the Issuer and the Co-Issuer and authenticated by the Trustee as hereinafter provided. Β The aggregate principal amount of the Regulation S Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee or the Depository or its nominee, as the case may be, as hereinafter provided.
Β
(c)Β Β Β Β Β Β Β Β Β Β Book-Entry Provisions.Β This SectionΒ 2.2(c)Β shall apply only to Global Securities deposited with or on behalf of the Depository.
Β
Each of the Issuer and Co-Issuer shall execute and the Trustee shall, in accordance with this SectionΒ 2.2(c), authenticate and deliver initially one or more Global Securities that shall be (i)Β registered in the name of the nominee of the Depository for such Global Security or Global Securities and (ii)Β delivered by the Trustee to such Depository or pursuant to such Depositoryβs instructions or held by the Trusteeβs agent as custodian for the Depository.
Β
Agent Members shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Trustee, as custodian for the Depository or under the Global Security, and the Depository may be treated by the Issuer, the Co-Issuer, the Trustee, and any agent of the Issuer, the Co-Issuer or the Trustee as the absolute owner of such Global Security for all purposes whatsoever.Β Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Co-Issuer, the Trustee, or any agent of the Issuer, the Co-Issuer or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Global Security.
Β
(d)Β Β Β Β Β Β Β Β Β Β Delivery of Definitive Notes in Lieu of Global Securities.Β Except as provided in SectionΒ 2.10 hereof, owners of beneficial interests in a ClassΒ of Global Securities shall not be entitled to receive physical delivery of a Definitive Note.
Β
SectionΒ 2.3Β Β Β Β Β Β Β Β Β Β Β Authorized Amount; Stated Maturity Date; and Denominations.
Β
(a)Β Β Β Β Β Β Β Β Β Β The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is limited to U.S.$177,000,000, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to SectionΒ 2.5, 2.6 or 8.5 hereof.
Β
Β
Such Notes shall be divided into two Classes having designations and original principal amounts as follows:
Β
Designation |
Β |
Original |
Β | |
ClassΒ A Senior Secured Floating Rate Notes Due FebruaryΒ 2023 |
Β |
U.S.$ |
156,000,000 |
Β |
ClassΒ B Secured Floating Rate Notes Due FebruaryΒ 2023 |
Β |
U.S.$ |
21,000,000 |
Β |
Β
(b)Β Β Β Β Β Β Β Β Β Β The Notes shall be issuable in minimum denominations of U.S.$250,000 and integral multiples of U.S.$500 in excess thereof (plus any residual amount).
Β
SectionΒ 2.4Β Β Β Β Β Β Β Β Β Β Β Execution, Authentication, Delivery and Dating.
Β
The Notes shall be executed on behalf of the Issuer and the Co-Issuer by an Authorized Officer of the Issuer and the Co-Issuer, respectively.Β The signature of such Authorized Officers on the Notes may be manual or facsimile.
Β
Notes bearing the manual or facsimile signatures of individuals who were at any time the Authorized Officers of the Issuer or the Co-Issuer shall bind the Issuer or the Co-Issuer, as the case may be, notwithstanding the fact that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of issuance of such Notes.
Β
At any time and from time to time after the execution and delivery of this Indenture, the Issuer and the Co-Issuer may deliver Notes executed by the Issuer and the Co-Issuer to the Trustee or the Authenticating Agent for authentication and the Trustee or the Authenticating Agent, upon Issuer Order, shall authenticate and deliver such Notes as provided in this Indenture and not otherwise.
Β
Each Note authenticated and delivered by the Trustee or the Authenticating Agent upon Issuer Order on the Closing Date shall be dated as of the Closing Date.Β All other Notes that are authenticated after the Closing Date for any other purpose under this Indenture shall be dated the date of their authentication.
Β
Notes issued upon transfer, exchange or replacement of other Notes shall be issued in authorized denominations reflecting the original aggregate principal amount of the Notes so transferred, exchanged or replaced, but shall represent only the current outstanding principal amount of the Notes so transferred, exchanged or replaced.Β In the event that any Note is divided into more than one Note in accordance with this ArticleΒ 2, the original principal amount of such Note shall be proportionately divided among the Notes delivered in exchange therefor and shall be deemed to be the original aggregate principal amount of such subsequently issued Notes.
Β
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,
Β
Β
substantially in the form provided for herein, executed by the Trustee or by the Authenticating Agent by the manual signature of one of their Authorized Officers, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
Β
SectionΒ 2.5Β Β Β Β Β Β Β Β Β Β Β Registration, Registration of Transfer and Exchange.
Β
(a)Β Β Β Β Β Β Β Β Β Β The Issuer and the Co-Issuer shall cause to be kept a register (the βNotes Registerβ) in which, subject to such reasonable regulations as it may prescribe, the Issuer and the Co-Issuer shall provide for the registration of Notes and the registration of transfers and exchanges of Notes.Β The Trustee is hereby initially appointed βNotes Registrarβ for the purpose of maintaining the Notes Registrar and registering Notes and transfers and exchanges of such Notes with respect to the Notes Register kept in the United States as herein provided.Β Upon any resignation or removal of the Notes Registrar, the Issuer and the Co-Issuer shall promptly appoint a successor or, in the absence of such appointment, assume the duties of Notes Registrar.
Β
If a Person other than the Trustee is appointed by the Issuer and the Co-Issuer as Notes Registrar, the Issuer and the Co-Issuer shall give the Trustee prompt written notice of the appointment of a successor Notes Registrar and of the location, and any change in the location, of the Notes Register, and the Trustee shall have the right to inspect the Notes Register at all reasonable times and to obtain copies thereof and the Trustee shall have the right to rely upon a certificate executed on behalf of the Notes Registrar by an Officer thereof as to the names and addresses of the Holders of the Notes and the principal amounts and numbers of such Notes.
Β
Subject to this SectionΒ 2.5, upon surrender for registration of transfer of any Notes at the office or agency of the Issuer to be maintained as provided in SectionΒ 7.2, the Issuer and the Co-Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denomination and of a like aggregate principal amount.
Β
At the option of the Holder, Notes may be exchanged for Notes of like terms, in any authorized denominations and of like aggregate principal amount, upon surrender of the Notes to be exchanged at the office or agency of the Issuer to be maintained as provided in SectionΒ 7.2.Β Whenever any Note is surrendered for exchange, the Issuer and the Co-Issuer shall execute, and the Trustee shall authenticate and deliver, the Notes that the Noteholder making the exchange is entitled to receive.
Β
All Notes issued and authenticated upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer and the Co-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.
Β
Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Notes Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.
Β
Β
No service charge shall be made to a Holder for any registration of transfer or exchange of Notes, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Β
None of the Notes Registrar, the Issuer or the Co-Issuer shall be required (i)Β to issue, register the transfer of or exchange any Note during a period beginning at the opening of business 15 days before any selection of Notes to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii)Β to register the transfer of or exchange any Note so selected for redemption.
Β
(b)Β Β Β Β Β Β Β Β Β Β No Note may be sold or transferred (including, without limitation, by pledge or hypothecation) unless such sale or transfer is exempt from the registration requirements of the Securities Act and is exempt from the registration requirements under applicable state securities laws.
Β
(c)Β Β Β Β Β Β Β Β Β Β No Note may be offered, sold, resold or delivered, within the United States or to, or for the benefit of, U.S. Persons except in accordance with SectionΒ 2.5(e)Β below and in accordance with RuleΒ 144A to QIBs or, solely with respect to Definitive Notes,Β IAIs who are also Qualified Purchasers purchasing for their own account or for the accounts of one or more QIBs or IAIs who are also Qualified Purchasers, for which the purchaser is acting as fiduciary or agent.Β The Notes may be offered, sold, resold or delivered, as the case may be, in offshore transactions to non-U.S. Persons in reliance on RegulationΒ S.Β None of the Issuer, the Co-Issuer, the Trustee or any other Person may register the Notes under the Securities Act or any state securities laws.
Β
(d)Β Β Β Β Β Β Β Β Β Β Upon final payment due on the Stated Maturity Date of a Note, the Holder thereof shall present and surrender such Note at the Corporate Trust Office of the Trustee or at the office of the Paying Agent (outside the United States if then required by applicable law in the case of a Note in definitive form issued in exchange for a beneficial interest in a RegulationΒ S Global Security pursuant to SectionΒ 2.10).
Β
(e)Β Β Β Β Β Β Β Β Β Β Transfers of Global Securities.Β Notwithstanding any provision to the contrary herein, so long as a Global Security remains outstanding and is held by or on behalf of the Depository, transfers of a Global Security, in whole or in part, shall be made only in accordance with SectionΒ 2.2(c)Β and this SectionΒ 2.5(e).
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Except as otherwise set forth below, transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to nominees of the Depository or to a successor of the Depository or such successorβs nominee.Β Transfers of a Global Security to a Definitive Note may only be made in accordance with SectionΒ 2.10.
Β
(ii)Β Β Β Β Β Β Β Β Β Β Regulation S Global Security to RuleΒ 144A Global Security or Definitive Note.Β If a holder of a beneficial interest in a Regulation S Global Security wishes at any time to exchange its interest in such RegulationΒ S Global Security for an interest in the corresponding RuleΒ 144A Global Security or for a Definitive Note or to transfer its interest in such RegulationΒ S Global Security to a Person who wishes to take delivery
Β
Β
thereof in the form of an interest in the corresponding RuleΒ 144A Global Security or for a Definitive Note, such holder may, subject to the immediately succeeding sentence and the rulesΒ and procedures of Euroclear, Clearstream and/or DTC, as the case may be, exchange or transfer, or cause the exchange or transfer of, such interest for an equivalent beneficial interest in the corresponding RuleΒ 144A Global Security or for a Definitive Note.Β Upon receipt by the Trustee or the Notes Registrar of:
Β
(1)Β Β Β Β Β Β Β Β Β Β if the transferee is taking a beneficial interest in a RuleΒ 144A Global Security, instructions from Euroclear, Clearstream and/or DTC, as the case may be, directing the Note Registrar to cause to be credited a beneficial interest in the corresponding RuleΒ 144A Global Security in an amount equal to the beneficial interest in such RegulationΒ S Global Security, but not less than the minimum denomination applicable to such holderβs Notes to be exchanged or transferred, such instructions to contain information regarding the participant account with DTC to be credited with such increase andΒ a duly completed certificate in the form of ExhibitΒ C-2 attached hereto; or
Β
(2)Β Β Β Β Β Β Β Β Β Β if the transferee is taking a Definitive Note, a duly completed transfer certificate in substantially the form of ExhibitΒ C-3 hereto, certifying that such transferee is an IAI and a Qualified Purchaser,
Β
then the Notes Registrar shall either (x)Β if the transferee is taking a beneficial interest in a RuleΒ 144A Global Security, approve the instructions at DTC to reduce, or cause to be reduced, the RegulationΒ S Global Security by the aggregate principal amount of the beneficial interest in the RegulationΒ S Global Security to be transferred or exchanged and the Notes Registrar shall instruct DTC, concurrently with such reduction, to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding RuleΒ 144A Global Security equal to the reduction in the principal amount of the RegulationΒ S Global Security or (y)Β if the transferee is taking an interest in a Definitive Note, the Notes Registrar shall record the transfer in the Notes Register in accordance with SectionΒ 2.5(a)Β and, upon execution by the Issuers, authenticate and deliver one or more Definitive Notes, as applicable, registered in the names specified in the instructions described above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the interest in the Regulation S Global Security transferred by the transferor).
Β
(iii)Β Β Β Β Β Β Β Β Β Definitive Note or RuleΒ 144A Global Security to Regulation S Global Security.Β If a holder of a beneficial interest in a RuleΒ 144A Global Security or a Holder of a Definitive Note wishes at any time to exchange its interest in such RuleΒ 144A Global Security or Definitive Note for an interest in the corresponding Regulation S Global Security, or to transfer its interest in such RuleΒ 144A Global Security or Definitive Note to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Regulation S Global Security, such holder, provided such holder or, in the case of a transfer, the transferee is not a U.S. person and is acquiring such interest in an offshore transaction, may, subject to the immediately succeeding sentence and the rulesΒ and procedures of DTC, exchange or transfer, or cause the exchange or transfer of, such
Β
Β
interest for an equivalent beneficial interest in the corresponding Regulation S Global Security.Β Upon receipt by the Trustee or the Notes Registrar of:
Β
(1)Β Β Β Β Β Β Β Β Β Β instructions given in accordance with DTCβs procedures from an Agent Member directing the Trustee or the Notes Registrar to credit or cause to be credited a beneficial interest in the corresponding Regulation S Global Security, but not less than the minimum denomination applicable to such holderβs Notes, in an amount equal to the beneficial interest in the RuleΒ 144A Global Security or Definitive Note to be exchanged or transferred, and in the case of a transfer of Definitive Notes, such Holderβs Definitive Notes properly endorsed for assignment to the transferee,
Β
(2)Β Β Β Β Β Β Β Β Β Β a written order given in accordance with DTCβs procedures containing information regarding the participant account of DTC and the Euroclear or Clearstream account to be credited with such increase,
Β
(3)Β Β Β Β Β Β Β Β Β Β in the case of a transfer of Definitive Notes, a Xxxxxxβs Definitive Note properly endorsed for assignment to the transferee, and
Β
(4)Β Β Β Β Β Β Β Β Β Β a duly completed certificate in the form of ExhibitΒ C-1 attached hereto,
Β
then the Trustee or the Notes Registrar shall approve the instructions at DTC to reduce the principal amount of the RuleΒ 144A Global Security (or, in the case of a transfer of Definitive Notes, the Trustee or the Notes Registrar shall cancel such Definitive Notes) and to increase the principal amount of the Regulation S Global Security by the aggregate principal amount of the beneficial interest in the RuleΒ 144A Global Security or Definitive Note to be exchanged or transferred, and to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Regulation S Global Security equal to the reduction in the principal amount of the RuleΒ 144A Global Security (or, in the case of a cancellation of Definitive Notes, equal to the principal amount of Definitive Notes so cancelled).
Β
(iv)Β Β Β Β Β Β Β Β Β Transfer of RuleΒ 144A Global Securities to Definitive Notes.Β If, in accordance with SectionΒ 2.10, a holder of a beneficial interest in a RuleΒ 144A Global Security wishes at any time to exchange its interest in such RuleΒ 144A Global Security for a Definitive Note or to transfer its interest in such RuleΒ 144A Global Security to a Person who wishes to take delivery thereof in the form of a Definitive Note in accordance with SectionΒ 2.10, such holder may, subject to the immediately succeeding sentence and the rulesΒ and procedures of DTC, exchange or transfer, or cause the exchange or transfer of, such interest for a Definitive Note.Β Upon receipt by the Trustee or the Notes Registrar of (A)Β a duly complete certificate substantially in the form of ExhibitΒ C-3 and (B)Β appropriate instructions from DTC, if required, the Trustee or the Notes Registrar shall approve the instructions at DTC to reduce, or cause to be reduced, the RuleΒ 144A Global Security by the aggregate principal amount of the beneficial interest in the RuleΒ 144A Global Security to be transferred or exchanged, record the transfer in the Register
Β
Β
in accordance with SectionΒ 2.5(a)Β and upon execution by the Issuers authenticate and deliver one or more Definitive Notes, registered in the names specified in the instructions described in clause (B)Β above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the interest in the RuleΒ 144A Global Security transferred by the transferor).
Β
(v)Β Β Β Β Β Β Β Β Β Β Transfer of Definitive Notes to RuleΒ 144A Global Securities.Β If a holder of a Definitive Note wishes at any time to exchange its interest in such Definitive Note for a beneficial interest in a RuleΒ 144A Global Security or to transfer such Definitive Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in a RuleΒ 144A Global Security, such holder may, subject to the immediately succeeding sentence and the rulesΒ and procedures of DTC, exchange or transfer, or cause the exchange or transfer of, such Definitive Note for beneficial interest in a RuleΒ 144A Global Security (provided that no IAI may hold an interest in a RuleΒ 144A Global Security).Β Upon receipt by the Trustee or the Notes Registrar of (A)Β a Holderβs Definitive Note properly endorsed for assignment to the transferee; (B)Β a duly completed certificate substantially in the form of ExhibitΒ C-2 attached hereto; (C)Β instructions given in accordance with DTCβs procedures from an Agent Member to instruct DTC to cause to be credited a beneficial interest in the RuleΒ 144A Global Securities in an amount equal to the Definitive Notes to be transferred or exchanged; and (D)Β a written order given in accordance with DTCβs procedures containing information regarding the participantβs account of DTC to be credited with such increase, the Trustee or the Notes Registrar shall cancel such Definitive Note in accordance herewith, record the transfer in the Notes Register in accordance with SectionΒ 2.5(a)Β and approve the instructions at DTC, concurrently with such cancellation, to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding RuleΒ 144A Global Security equal to the principal amount of the Definitive Note transferred or exchanged.
Β
(vi)Β Β Β Β Β Β Β Β Β Other Exchanges.Β In the event that, pursuant to SectionΒ 2.10 hereof, a Global Security is exchanged for Definitive Notes, such Notes may be exchanged for one another only in accordance with such procedures as are substantially consistent with the provisions above (including certification requirements intended to ensure that such transfers are to a QIB who is also a Qualified Purchaser or are to a non-U.S. Person, or otherwise comply with RuleΒ 144A or Regulation S, as the case may be) and as may be from time to time adopted by the Issuer, the Co-Issuer and the Trustee.
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Removal of Legend.Β If Notes are issued upon the transfer, exchange or replacement of Notes bearing the applicable legends set forth in Exhibits A and B hereto, and if a request is made to remove such applicable legend on such Notes, the Notes so issued shall bear such applicable legend, or such applicable legend shall not be removed, as the case may be, unless there is delivered to the Issuer and the Co-Issuer such satisfactory evidence, which may include an Opinion of Counsel of an attorney at law licensed to practice law in the State of New York (and addressed to the Issuer and the Trustee), as may be reasonably required by the Issuer and the Co-Issuer, if applicable, to the effect that neither such applicable legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of RuleΒ 144A or Regulation S, as applicable, the 1940 Act or ERISA.Β So long as
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Β
the Issuer or the Co-Issuer is relying on an exemption under or promulgated pursuant to the 1940 Act, the Issuer or the Co-Issuer shall not remove that portion of the legend required to maintain an exemption under or promulgated pursuant to the 1940 Act.Β Upon provision of such satisfactory evidence, as confirmed in writing by the Issuer and the Co-Issuer, if applicable, to the Trustee, the Trustee, at the direction of the Issuer and the Co-Issuer, if applicable, shall authenticate and deliver Notes that do not bear such applicable legend.
Β
(g)Β Β Β Β Β Β Β Β Β Β Each beneficial owner of Regulation S Global Securities shall be deemed to make the representations and agreements set forth in ExhibitΒ C-1 hereto.
Β
(h)Β Β Β Β Β Β Β Β Β Β Each beneficial owner of RuleΒ 144A Global Securities shall be deemed to make the representations and agreements set forth in ExhibitΒ C-2 hereto.
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Each Holder of Definitive Notes shall make the representations and agreements set forth in the certificate attached as ExhibitΒ C-3 hereto.
Β
(j)Β Β Β Β Β Β Β Β Β Β Β Any purported transfer of a Note not in accordance with SectionΒ 2.5(a)Β shall be null and void and shall not be given effect for any purpose hereunder.
Β
(k)Β Β Β Β Β Β Β Β Β Β Notwithstanding anything contained in this Indenture to the contrary, neither the Trustee nor the Notes Registrar (nor any other Transfer Agent) shall be responsible or liable for compliance with applicable federal or state securities laws (including, without limitation, the Securities Act or RuleΒ 144A or Regulation S promulgated thereunder), the 1940 Act, ERISA or the Code (or any applicable regulations thereunder); provided, however, that if a specified transfer certificate or Opinion of Counsel is required by the express terms of this SectionΒ 2.5 to be delivered to the Trustee or Notes Registrar prior to registration of transfer of a Note, the Trustee and/or Notes Registrar, as applicable, is required to request, as a condition for registering the transfer of the Note, such certificate or Opinion of Counsel and to examine the same to determine whether it conforms on its face to the requirements hereof (and the Trustee or Notes Registrar, as the case may be, shall promptly notify the party delivering the same if it determines that such certificate or Opinion of Counsel does not so conform).
Β
(l)Β Β Β Β Β Β Β Β Β Β Β If the Trustee determines or is notified by the Issuer, the Co-Issuer or the Loan Obligation Manager that (i)Β a transfer or attempted or purported transfer of any interest in any Note was consummated in compliance with the provisions of this SectionΒ 2.5 on the basis of a materially incorrect certification from the transferee or purported transferee, (ii)Β a transferee failed to deliver to the Trustee any certification required to be delivered hereunder or (iii)Β the holder of any interest in a Note is in breach of any representation or agreement set forth in any certification or any deemed representation or agreement of such holder, the Trustee shall not register such attempted or purported transfer and if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall vest no rights in the purported transferee (such purported transferee, a βDisqualified Transfereeβ) and the last preceding holder of such interest in such Note that was not a Disqualified Transferee shall be restored to all rights as a Holder thereof retroactively to the date of transfer of such Note by such Holder.
Β
In addition, the Trustee may require that the interest in the Note referred to in (i), (ii)Β or (iii)Β in the preceding paragraph be transferred to any person designated by the Issuer or the
Β
Β
Loan Obligation Manager at a price determined by the Issuer or the Loan Obligation Manager, as applicable, based upon its estimation of the prevailing price of such interest and each Holder, by acceptance of an interest in a Note, authorizes the Trustee to take such action.Β In any case, the Trustee shall not be held responsible for any losses that may be incurred as a result of any required transfer under this SectionΒ 2.5(l).
Β
(m)Β Β Β Β Β Β Β Β Β Each Holder of Notes approves and consents to (i)Β the initial purchase of the Loan Obligations by the Issuer from Affiliates of the Loan Obligation Manager on the Closing Date and (ii)Β any other transaction between the Issuer and the Loan Obligation Manager or its Affiliates that are permitted under the terms of this Indenture or the Loan Obligation Management Agreement.
Β
(n)Β Β Β Β Β Β Β Β Β Β As long as any Note is Outstanding, Notes held by Arbor Parent or any disregarded entity of Arbor Parent for federal income tax purposes may not be transferred, pledged or hypothecated to any other Person (except to an affiliate that is wholly-owned by Arbor Parent and is disregarded for U.S. federal income tax purposes) unless the Issuer receives an opinion of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP or another nationally recognized tax counsel experienced in such matters that such transfer will not cause the Issuer to be treated as a foreign corporation engaged in a trade or business in the United States for federal income tax purposes (or has previously received an opinion of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP or another nationally recognized tax counsel experienced in such matters that the Issuer will be treated as a foreign corporation that is not engaged in a trade or business in the United States for federal income tax purposes).
Β
SectionΒ 2.6Β Β Β Β Β Β Β Β Β Β Β Mutilated, Defaced, Destroyed, Lost or Stolen Note.
Β
If (a)Β any mutilated or defaced Note is surrendered to a Transfer Agent, or if there shall be delivered to the Issuer, the Co-Issuer, the Trustee and the relevant Transfer Agent (each a βSpecified Personβ) evidence to their reasonable satisfaction of the destruction, loss or theft of any Note, and (b)Β there is delivered to the Specified Person such security or indemnity as may be required by each Specified Person to save each of them and any agent of any of them harmless (an unsecured indemnity agreement delivered to the Trustee by an institutional investor with a net worth of at least U.S.$200,000,000 being deemed sufficient to satisfy such security or indemnity requirement), then, in the absence of notice to the Specified Persons that such Note has been acquired by a bona fide purchaser, the Issuer and the Co-Issuer shall execute and, upon Issuer Request, the Trustee shall authenticate and deliver, in lieu of any such mutilated, defaced, destroyed, lost or stolen Note, a new Note, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, dated the date of its authentication, bearing interest from the date to which interest has been paid on the mutilated, defaced, destroyed, lost or stolen Note and bearing a number not contemporaneously outstanding.
Β
If, after delivery of such new Note, a bona fide purchaser of the predecessor Note presents for payment, transfer or exchange such predecessor Note, any Specified Person shall be entitled to recover such new Note from the Person to whom it was delivered or any Person taking therefrom, and each Specified Person shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by such Specified Person in connection therewith.
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Β
In case any such mutilated, defaced, destroyed, lost or stolen Note has become due and payable, the Issuer and the Co-Issuer, if applicable, in their discretion may, instead of issuing a new Note, pay such Note without requiring surrender thereof except that any mutilated or defaced Note shall be surrendered.
Β
Upon the issuance of any new Note under this SectionΒ 2.6, the Issuer and the Co-Issuer, if applicable, may require the payment by the registered Holder thereof of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Β
Every new Note issued pursuant to this SectionΒ 2.6 in lieu of any mutilated, defaced, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer and the Co-Issuer, if applicable, and such new Note shall be entitled, subject to the second paragraph of this SectionΒ 2.6, to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
Β
The provisions of this SectionΒ 2.6 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, defaced, destroyed, lost or stolen Notes.
Β
SectionΒ 2.7Β Β Β Β Β Β Β Β Β Β Β Payment of Principal and Interest and Other Amounts; Principal and Interest Rights Preserved.
Β
(a)Β Β Β Β Β Β Β Β Β Β The ClassΒ A Notes shall accrue interest during each Interest Accrual Period at the ClassΒ A Rate.Β Interest on each ClassΒ A Note shall be due and payable on each Payment Date immediately following the related Interest Accrual Period in the proportion that the outstanding principal amount of such ClassΒ A Note bears to the Aggregate Outstanding Amount of all ClassΒ A Notes; provided, however, that the payment of interest on the ClassΒ A Notes is subordinated to the payment on each Payment Date of certain amounts in accordance with the Priority of Payments.
Β
(b)Β Β Β Β Β Β Β Β Β Β The ClassΒ B Notes shall accrue interest during each Interest Accrual Period at the ClassΒ B Rate.Β Interest on each ClassΒ B Note shall be due and payable on each Payment Date immediately following the related Interest Accrual Period in the proportion that the outstanding principal amount of such ClassΒ B Note bears to the Aggregate Outstanding Amount of all ClassΒ B Notes; provided, however, that the payment of interest on the ClassΒ B Notes is subordinated to the payment on each Payment Date of the interest due and payable on the ClassΒ A Notes (including any ClassΒ A Defaulted Interest Amount) and certain other amounts in accordance with the Priority of Payments.
Β
(c)Β Β Β Β Β Β Β Β Β Β Upon any Optional Redemption, Tax Redemption or Clean-up Call, all net proceeds remaining after the sale of the Loan Obligations in accordance with ArticleΒ 12 hereof and Cash and proceeds from Eligible Investments (other than the Issuerβs right, title and interest in the property described in clause (i)Β of the definition of βExcepted Assetsβ), after the payment of the amounts referred to in clauses (1)Β through (10)Β of SectionΒ 11.1(a)(i)Β and clauses (1)Β through (6)Β of SectionΒ 11.1(a)(ii)Β will be distributed by the Trustee to the Preferred Shares Paying Agent for distribution to the Holders of the Preferred Shares in accordance with the
Β
Β
Preferred Share Paying Agency Agreement, whereupon the Preferred Shares will be cancelled and deemed paid in full for all purposes.
Β
(d)Β Β Β Β Β Β Β Β Β Β Interest shall cease to accrue on each ClassΒ of Notes, or in the case of a partial repayment, on such part, from the date of repayment or Stated Maturity Date unless payment of principal is improperly withheld or unless a Default has occurred with respect to such payments of principal.
Β
(e)Β Β Β Β Β Β Β Β Β Β The principal of each ClassΒ of Notes matures at par and is due and payable on the Stated Maturity Date, unless the unpaid principal of such ClassΒ of Notes becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise; provided, however, that the payment of principal on the ClassΒ B Notes (other than payment of principal pursuant to SectionΒ 9.5) may only occur after the principal on the ClassΒ A Notes has been paid in full and is subordinated to the payment on each Payment Date of the principal and interest due and payable on the ClassΒ A Notes and other amounts in accordance with the Priority of Payments and any payment of principal on the ClassΒ B Notes which is not paid, in accordance with the Priority of Payments, on any Payment Date, shall not be considered βdue and payableβ solely for purposes of SectionΒ 5.1(b)Β until the Payment Date on which such principal may be paid in accordance with the Priority of Payments or all of the ClassΒ A Notes have been paid in full.
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(f)Β Β Β Β Β Β Β Β Β Β Β As a condition to the payment of principal of and interest on any Note without the imposition of U.S. withholding tax, the Issuer shall require certification acceptable to it to enable the Issuer, the Co-Issuer, the Trustee, the Preferred Shares Paying Agent and the Paying Agent to determine their duties and liabilities with respect to any taxes or other charges that they may be required to deduct or withhold from payments in respect of such Security under any present or future law or regulation of the United States or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any such law or regulation.Β Such certification may include U.S. federal income tax forms (such as IRS FormΒ W-8BEN (Certification of Foreign Status of Beneficial Owner), FormΒ W-8IMY (Certification of Foreign Intermediary Status),Β IRS FormΒ W-9 (Request for Taxpayer Identification Number and Certification), or IRS FormΒ W-8ECI (Certification of Foreign Personβs Claim for Exemption from Withholding on Income Effectively Connected with Conduct of a U.S. Trade or Business) or any successors to such IRS forms).Β In addition, each of the Issuer, Co-Issuer, the Trustee, Preferred Shares Paying Agent or any Paying Agent may require certification acceptable to it to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets.Β Each Holder and each beneficial owner of Notes agree to provide any certification requested pursuant to this SectionΒ 2.7(f)Β and to update or replace such form or certification in accordance with its terms or its subsequent amendments.Β Furthermore, (i)Β if a Holder is a βforeign financial institutionβ or other foreign financial entity subject to FATCA or (ii)Β if the Issuer is no longer a Qualified REIT Subsidiary, but is instead a foreign corporation for U.S. federal income tax purposes, the Issuer shall require information to comply with FATCA requirements pursuant to clause (xii)Β of the representations and warranties set forth under the third paragraph of ExhibitΒ C-1 hereto, as deemed made pursuant to SectionΒ 2.5(g)Β hereto, or pursuant to clause (xiii)Β of the representations and warranties set forth under the third paragraph of ExhibitΒ C-2 hereto, as deemed made pursuant to SectionΒ 2.5(h)Β hereto, or pursuant to clause
Β
Β
(xi)Β of the representations and warranties set forth under the third paragraph of ExhibitΒ C-3 hereto, made pursuant to SectionΒ 2.5(i)Β hereto, as applicable.
Β
(g)Β Β Β Β Β Β Β Β Β Β Payments in respect of interest on and principal on the Notes shall be payable by wire transfer in immediately available funds to a Dollar account maintained by the Holder or its nominee; provided that the Holder has provided wiring instructions to the Trustee on or before the related Record Date or, if wire transfer cannot be effected, by a Dollar check drawn on a bank in the United States, or by a Dollar check mailed to the Holder at its address in the Notes Register.Β The Issuer expects that the Depository or its nominee, upon receipt of any payment of principal or interest in respect of a Global Security held by the Depository or its nominee, shall immediately credit the applicable Agent Membersβ accounts with payments in amounts proportionate to the respective beneficial interests in such Global Security as shown on the records of the Depository or its nominee.Β The Issuer also expects that payments by Agent Members to owners of beneficial interests in such Global Security held through Agent Members will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers.Β Such payments will be the responsibility of the Agent Members.Β Upon final payment due on the Maturity of a Note, the Holder thereof shall present and surrender such Note at the Corporate Trust Office of the Trustee or at the office of the Paying Agent (outside of the United States if then required by applicable law in the case of a Definitive Note issued in exchange for a beneficial interest in the Regulation S Global Security) on or prior to such Maturity.Β None of the Issuer, the Co-Issuer, the Trustee or the Paying Agent will have any responsibility or liability with respect to any records maintained by the Holder of any Note with respect to the beneficial holders thereof or payments made thereby on account of beneficial interests held therein.Β In the case where any final payment of principal and interest is to be made on any Note (other than on the Stated Maturity Date thereof) the Issuer or, upon Issuer Request, the Trustee, in the name and at the expense of the Issuer, shall not more than 30 nor fewer than five Business Days prior to the date on which such payment is to be made, mail to the Persons entitled thereto at their addresses appearing on the Notes Register, a notice which shall state the date on which such payment will be made and the amount of such payment per U.S.$500,000 initial principal amount of Notes and shall specify the place where such Notes may be presented and surrendered for such payment.
Β
(h)Β Β Β Β Β Β Β Β Β Β Subject to the provisions of Sections 2.7(a)Β through (g)Β and SectionΒ 2.7(k)Β hereof, Holders of Notes as of the Record Date in respect of a Payment Date shall be entitled to the interest accrued and payable in accordance with the Priority of Payments and principal payable in accordance with the Priority of Payments on such Payment Date.Β All such payments that are mailed or wired and returned to the Paying Agent shall be held for payment as herein provided at the office or agency of the Issuer and the Co-Issuer to be maintained as provided in SectionΒ 7.2 (or returned to the Trustee).
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Interest on any Note which is payable, and is punctually paid or duly provided for, on any Payment Date shall be paid to the Person in whose name that Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such interest.
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Β
(j)Β Β Β Β Β Β Β Β Β Β Β Payments of principal to Holders of the Notes of each ClassΒ shall be made in the proportion that the Aggregate Outstanding Amount of the Notes of such ClassΒ registered in the name of each such Holder on such Record Date bears to the Aggregate Outstanding Amount of all Notes of such ClassΒ on such Record Date.
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(k)Β Β Β Β Β Β Β Β Β Β Interest accrued with respect to the Notes shall be calculated as described in the applicable form of Note attached hereto.
Β
(l)Β Β Β Β Β Β Β Β Β Β Β All reductions in the principal amount of a Note (or one or more predecessor Notes) effected by payments of installments of principal made on any Payment Date, Redemption Date or upon Maturity shall be binding upon all future Holders of such Note and of any Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Note.
Β
(m)Β Β Β Β Β Β Β Β Β Notwithstanding anything contained in this Indenture to the contrary, the obligations of the Issuer and the Co-Issuer under the Notes, this Indenture and the other Transaction Documents are limited-recourse obligations of the Issuer and non-recourse obligations of the Co-Issuer payable solely from the Assets and following realization of the Assets, all obligations of the Co-Issuers and any claims of the Noteholders, the Trustee or any other parties to any Transaction Documents shall be extinguished and shall not thereafter revive.Β No recourse shall be had for the payment of any amount owing in respect of the Notes against any Officer, director, employee, shareholder, limited partner or incorporator of the Issuer, the Co-Issuer or any of their respective successors or assigns for any amounts payable under the Notes or this Indenture.Β It is understood that the foregoing provisions of this paragraph shall not (i)Β prevent recourse to the Assets for the sums due or to become due under any security, instrument or agreement which is part of the Assets or (ii)Β constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured by this Indenture (to the extent it relates to the obligation to make payments on the Notes) until such Assets have been realized, whereupon any outstanding indebtedness or obligation in respect of the Notes, this Indenture and the other Transaction Documents shall be extinguished and shall not thereafter revive.Β It is further understood that the foregoing provisions of this paragraph shall not limit the right of any Person to name the Issuer or the Co-Issuer as a party defendant in any Proceeding or in the exercise of any other remedy under the Notes or this Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Β
(n)Β Β Β Β Β Β Β Β Β Β Subject to the foregoing provisions of this SectionΒ 2.7, each Note delivered under this Indenture and upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights of unpaid interest and principal that were carried by such other Note.
Β
(o)Β Β Β Β Β Β Β Β Β Β Notwithstanding any of the foregoing provisions with respect to payments of principal of and interest on the Notes (but subject to Sections 2.7(e)Β and (k)), if the Notes have become or been declared due and payable following an Event of Default and such acceleration of Maturity and its consequences have not been rescinded and annulled and the provisions of SectionΒ 5.5 are not applicable, then payments of principal of and interest on such Notes shall be made in accordance with SectionΒ 5.7 hereof.
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(p)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Payments in respect of the Preferred Shares as contemplated by Sections 11.1(a)(i)(11) and 11.1(a)(ii)(7)Β shall be made by the Trustee to the Preferred Shares Paying Agent.
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SectionΒ 2.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Persons Deemed Owners.
Β
The Issuer, the Co-Issuer, the Trustee, and any agent of the Issuer, the Co-Issuer or the Trustee may treat as the owner of a Note the Person in whose name such Note is registered on the Notes Register on the applicable Record Date for the purpose of receiving payments of principal of and interest and other amounts on such Note and on any other date for all other purposes whatsoever (whether or not such Note is overdue), and none of the Issuer, the Co-Issuer or the Trustee nor any agent of the Issuer, the Co-Issuer or the Trustee shall be affected by notice to the contrary; provided, however, that the Depository, or its nominee, shall be deemed the owner of the Global Securities, and owners of beneficial interests in Global Securities will not be considered the owners of any Notes for the purpose of receiving notices.Β With respect to the Preferred Shares, on any Payment Date, the Trustee shall deliver to the Preferred Shares Paying Agent the distributions thereon for distribution to the Preferred Shareholders.
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SectionΒ 2.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Cancellation.
Β
All Notes surrendered for payment, registration of transfer, exchange or redemption, or deemed lost or stolen, shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and shall be promptly canceled by the Trustee and may not be reissued or resold.Β No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this SectionΒ 2.9, except as expressly permitted by this Indenture.Β All canceled Notes held by the Trustee shall be destroyed or held by the Trustee in accordance with its standard retention policy unless the Issuer and the Co-Issuer shall direct by an Issuer Order that they be returned to them.Β Notes of the most senior ClassΒ Outstanding that are held by the Issuer, the Co-Issuer, the Loan Obligation Manager or any of their respective Affiliates may be submitted to the Trustee for cancellation at any time.
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SectionΒ 2.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Global Securities; Definitive Notes; Temporary Notes.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Definitive Notes.Β Definitive Notes shall only be issued in the following limited circumstances:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β upon Transfer of Global Securities to an IAI in accordance with the procedures set forth in SectionΒ 2.5(e)(ii)Β or SectionΒ 2.5(e)(iii);
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if a holder of a Definitive Note wishes at any time to exchange such Definitive Note for one or more Definitive Notes or transfer such Definitive Note to a transferee who wishes to take delivery thereof in the form of a Definitive Note in accordance with SectionΒ 2.10, such holder may effect such exchange or transfer upon receipt by the Trustee or the Notes Registrar of (A)Β a Holderβs Definitive Note properly endorsed for assignment to the transferee, and (B)Β duly completed certificates in the form of ExhibitΒ C-3, upon receipt of which the Trustee or the Notes Registrar shall then cancel such Definitive Note in accordance herewith, record the transfer in the Notes Register in accordance with SectionΒ 2.5(a)Β and upon execution by the Co-Issuers authenticate and
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deliver one or more Definitive Notes bearing the same designation as the Definitive Note endorsed for transfer, registered in the names specified in the assignment described in clause (A)Β above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the Definitive Note surrendered by the transferor).
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the event that the Depository notifies the Issuer and the Co-Issuer that it is unwilling or unable to continue as Depository for a Global Security or if at any time such Depository ceases to be a βClearing Agencyβ registered under the Exchange Act and a successor depository is not appointed by the Issuer within 90 days of such notice, the Global Securities deposited with the Depository pursuant to SectionΒ 2.2 hereof shall be transferred to the beneficial owners thereof subject to the procedures and conditions set forth in this SectionΒ 2.10.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Any Global Security that is exchanged for a Definitive Note shall be surrendered by the Depository to the Trusteeβs Corporate Trust Office together with necessary instruction for the registration and delivery of a Definitive Note to the beneficial owners (or such ownerβs nominee) holding the ownership interests in such Global Security.Β Any such transfer shall be made, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Definitive Notes of the same ClassΒ and authorized denominations.Β Any Definitive Notes delivered in exchange for an interest in a Global Security shall, except as otherwise provided by SectionΒ 2.5(f), bear the applicable legend set forth in Exhibits C-1 or C-2, as applicable, and shall be subject to the transfer restrictions referred to in such applicable legend.Β The Holder of each such registered individual Global Security may transfer such Global Security by surrendering it at the Corporate Trust Office of the Trustee, or at the office of the Paying Agent.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Subject to the provisions of SectionΒ 2.10(b)Β above, the registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In the event of the occurrence of either of the events specified in SectionΒ 2.10(a)Β above, the Issuer and the Co-Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes.
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Pending the preparation of Definitive Notes pursuant to this SectionΒ 2.10, the Issuer and the Co-Issuer may execute and, upon Issuer Order, the Trustee shall authenticate and deliver, temporary ClassΒ A Notes or ClassΒ B Notes that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized denomination, substantially of the tenor of the Definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Definitive Notes may determine, as conclusively evidenced by their execution of such Definitive Notes.
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If temporary Definitive Notes are issued, the Issuer and the Co-Issuer shall cause permanent Definitive Notes to be prepared without unreasonable delay.Β The Definitive Notes shall be printed, lithographed, typewritten or otherwise reproduced, or provided by any
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combination thereof, or in any other manner permitted by the rulesΒ and regulations of any applicable notes exchange, all as determined by the Officers executing such Definitive Notes.Β After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the applicable temporary ClassΒ A or ClassΒ B Notes at the office or agency maintained by the Issuer and the Co-Issuer for such purpose, without charge to the Holder.Β Upon surrender for cancellation of any one or more temporary ClassΒ A Notes or ClassΒ B Notes, the Issuer and the Co-Issuer shall execute, and the Trustee shall authenticate and deliver, in exchange therefor the same aggregate principal amount of Definitive Notes of authorized denominations.Β Until so exchanged, the temporary ClassΒ A Notes or ClassΒ B Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.
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SectionΒ 2.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β U.S. Tax Treatment of Notes and the Issuer.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each of the Issuer and the Co-Issuer intends that, for U.S. federal income tax purposes, the Notes be treated as debt and that the Issuer be treated as a Qualified REIT Subsidiary (unless the Issuer has received an opinion of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP or another nationally recognized tax counsel experienced in such matters opining that the Issuer will be treated as a foreign corporation not engaged in a trade or business in the United States for U.S. federal income tax purposes).Β Each prospective purchaser and any subsequent transferee of a Note or any interest therein shall, by virtue of its purchase or other acquisition of such Note or interest therein, be deemed to have agreed to treat such Note in a manner consistent with the preceding sentence for U.S. federal income tax purposes.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer and the Co-Issuer shall account for the Notes and prepare any reports to Noteholders and tax authorities consistent with the intentions expressed in SectionΒ 2.11(a)Β above.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each Holder of Notes shall timely furnish to the Issuer, the Co-Issuer or its agents any U.S. federal income tax form or certification (such as IRS FormΒ W-8BEN (Certification of Foreign Status of Beneficial Owner) (with PartΒ III marked),Β IRS FormΒ W-8IMY (Certification of Foreign Intermediary Status),Β IRS FormΒ W-9 (Request for Taxpayer Identification Number and Certification), or IRS FormΒ W-8ECI (Certification of Foreign Personβs Claim for Exemption from Withholding on Income Effectively Connected with Conduct of a U.S. Trade or Business) or any successors to such IRS forms that the Issuer, the Co-Issuer or its agents may reasonably request and shall update or replace such forms or certification in accordance with its terms or its subsequent amendments.Β Furthermore, if the Issuer is no longer treated as a Qualified REIT Subsidiary but is instead a foreign corporation for U.S. federal income tax purposes or if a Noteholder is a βforeign financial institutionβ or other foreign financial entity subject to FATCA, Noteholders shall timely furnish any information required pursuant to SectionΒ 2.7(f).
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SectionΒ 2.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Authenticating Agents.
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Upon the request of the Issuer and the Co-Issuer, the Trustee shall, and if the Trustee so chooses the Trustee may, pursuant to this Indenture, appoint one or more Authenticating Agents with power to act on its behalf and subject to its direction in the authentication of Notes in connection with issuance, transfers and exchanges under Sections 2.4,
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2.5, 2.6 and 8.5 hereof, as fully to all intents and purposes as though each such Authenticating Agent had been expressly authorized by such Sections to authenticate such Notes.Β For all purposes of this Indenture, the authentication of Notes by an Authenticating Agent pursuant to this SectionΒ 2.12 shall be deemed to be the authentication of Notes by the Trustee.
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Any corporation or banking association into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation or banking association resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, without the execution or filing of any further act on the part of the parties hereto or such Authenticating Agent or such successor corporation.Β Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee, the Issuer and the Co-Issuer.Β The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent, the Issuer and the Co-Issuer.Β Upon receiving such notice of resignation or upon such a termination, the Trustee shall promptly appoint a successor Authenticating Agent and shall give written notice of such appointment to the Issuer.
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The Trustee agrees to pay to each Authenticating Agent appointed by it from time to time reasonable compensation for its services, and reimbursement for its reasonable expenses relating thereto and the Trustee shall be entitled to be reimbursed for such payments, subject to SectionΒ 6.7 hereof.Β The provisions of Sections 2.9, 6.4 and 6.5 hereof shall be applicable to any Authenticating Agent.
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SectionΒ 2.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Forced Sale on Failure to Comply with Restrictions.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything to the contrary elsewhere in this Indenture, any transfer of a Note or interest therein to a U.S. Person who is determined not to have been both a QIB and a Qualified Purchaser at the time of acquisition of the Note or interest therein shall be null and void and any such proposed transfer of which the Issuer, the Co-Issuer or the Trustee shall have notice may be disregarded by the Issuer, the Co-Issuer and the Trustee for all purposes.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If the Issuer determines that any Holder of a Note has not satisfied the applicable requirement described in SectionΒ 2.13(a)Β above (any such person a βNon-Permitted Holderβ), then the Issuer shall promptly after discovery that such Person is a Non-Permitted Holder by the Issuer, the Co-Issuer or the Trustee (and notice by the Trustee or the Co-Issuer to the Issuer, if either of them makes the discovery), send notice (or procure that notice is sent) to such Non-Permitted Holder demanding that such Non-Permitted Holder transfer its interest to a Person that is not a Non-Permitted Holder within 30 days of the date of such notice.Β If such Non-Permitted Holder fails to so transfer its Note or interest therein, the Issuer shall have the right, without further notice to the Non-Permitted Holder, to sell such Note or interest therein to a purchaser selected by the Issuer that is not a Non-Permitted Holder on such terms as the Issuer may choose.Β The Issuer, or the Trustee acting on behalf of the Issuer, may select the purchaser by soliciting one or more bids from one or more brokers or other market professionals that regularly deal in securities similar to the Note, and selling such Note to the highest such bidder.Β However, the Issuer or the Trustee may select a purchaser by any other means determined by it
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in its sole discretion.Β The Holder of such Note, the Non-Permitted Holder and each other Person in the chain of title from the Holder to the Non-Permitted Holder, by its acceptance of an interest in the Note, agrees to cooperate with the Issuer and the Trustee to effect such transfers.Β The proceeds of such sale, net of any commissions, expenses and taxes due in connection with such sale shall be remitted to the Non-Permitted Holder.Β The terms and conditions of any sale under this SectionΒ 2.13(b)Β shall be determined in the sole discretion of the Issuer, and the Issuer shall not be liable to any Person having an interest in the Note sold as a result of any such sale of exercise of such discretion.
Β
SectionΒ 2.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Gross Up.
Β
The Issuer shall not be obligated to pay any additional amounts to the Holders or beneficial owners of the Notes as a result of any withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges.
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ARTICLEΒ 3
Β
CONDITIONS PRECEDENT; PLEDGED LOAN OBLIGATIONS
Β
SectionΒ 3.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β General Provisions.
Β
The Notes to be issued on the Closing Date shall be executed by the Issuer and the Co-Issuer upon compliance with SectionΒ 3.2 and shall be delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon Issuer Request and upon receipt by the Trustee of the items described below:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an Officerβs Certificate of the Issuer (i)Β evidencing the authorization by Board Resolution of the execution and delivery of this Indenture, the Loan Obligation Management Agreement, the Placement Agency Agreement and related documents, the execution, authentication and delivery of the Notes and specifying the Stated Maturity Date of each ClassΒ of Notes, the principal amount of each ClassΒ of Notes and the applicable Note Interest Rate of each ClassΒ of Notes to be authenticated and delivered, and (ii)Β certifying that (A)Β the attached copy of the Board Resolution is a true and complete copy thereof, (B)Β such resolutions have not been rescinded and are in full force and effect on and as of the Closing Date, (C)Β the Directors authorized to execute and deliver such documents hold the offices and have the signatures indicated thereon and (D)Β at least U.S.$82,987,000 of proceeds on account of the sale on the Closing Date of the Preferred Shares shall have been received;
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an Officerβs Certificate of the Co-Issuer (i)Β evidencing the authorization by Board Resolution of the execution and delivery of this Indenture and related documents, the execution, authentication and delivery of the Notes and specifying the Stated Maturity Date of each ClassΒ of Notes, the principal amount of each ClassΒ of Notes and the applicable Note Interest Rate of each ClassΒ of Notes to be authenticated and delivered, and (ii)Β certifying that (A)Β the attached copy of the Board Resolution is a true and complete copy thereof, (B)Β such resolutions have not been rescinded and are in full force and effect on and as of the Closing Date and (C)Β each Officer authorized to execute and deliver the documents referenced in clause (b)(i)Β above holds the office and has the signature indicated thereon;
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Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (i)Β either (A)Β certificates of the Issuer or other official document evidencing the due authorization, approval or consent of any governmental body or bodies, at the time having jurisdiction in the premises, together with an Opinion of Counsel of the Issuer that no other authorization, approval or consent of any governmental body is required for the valid issuance of such Notes, or (B)Β an Opinion of Counsel of the Issuer reasonably satisfactory in form and substance to the Trustee that no such authorization, approval or consent of any governmental body is required for the valid issuance of such Notes except as may have been given; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β either (A)Β certificates of the Co-Issuer or other official document evidencing the due authorization, approval or consent of any governmental body or bodies, at the time having jurisdiction in the premises, together with an Opinion of Counsel of the Co-Issuer that no other authorization, approval or consent of any governmental body is required for the valid issuance of such Notes, or (B)Β an Opinion of Counsel of the Co-Issuer reasonably satisfactory in form and substance to the Trustee that no such authorization, approval or consent of any governmental body is required for the valid issuance of such Notes except as may have been given;
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP, special U.S. counsel to the Co-Issuers, the Loan Obligation Manager and certain Affiliates thereof (which opinions may be limited to the laws of the State of New York and the federal law of the United States and may assume, among other things, the correctness of the representations and warranties made or deemed made by the owners of Notes pursuant to Sections 2.5(g), (h)Β and (i)) dated the Closing Date, as to certain matters of New York law and certain United States federal income tax and securities law matters, in a form satisfactory to the Placement Agent and the Trustee;
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β opinions of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP, special counsel to the Co-Issuers dated the Closing Date, relating to (i)Β the validity of the Grant hereunder and the perfection of the Trusteeβs security interest in the Assets and (ii)Β certain bankruptcy matters, in each case, in a form satisfactory to the Trustee;
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of Xxxxxxx, XxxxΒ & Xxxxxxxxx LLP, special counsel to the Arbor Parent, dated the Closing Date, regarding certain 1940 Act issues, in a form satisfactory to the Trustee;
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of Xxxxxxx, Arps, Slate, XxxxxxxΒ & Xxxx LLP, special tax counsel to the Arbor Parent, dated the Closing Date, regarding its qualification and taxation as a REIT, in a form satisfactory to the Trustee;
Β
(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of Xxxxxxxx, XxxxxxΒ & Finger LLP, special Delaware counsel to the Co-Issuer, dated the Closing Date, regarding certain issues of Delaware law, in a form satisfactory to the Trustee;
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of Xxxxxxxx, XxxxxxΒ & Finger LLP, special Delaware counsel to ARMS Equity, dated the Closing Date, regarding certain issues of Delaware law, in a form satisfactory to the Trustee;
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(j)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of Xxxxxxxx, XxxxxxΒ & Finger LLP, special Delaware counsel to the Loan Obligation Manager, dated the Closing Date, regarding certain issues of Delaware law, in a form satisfactory to the Trustee;
Β
(k)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of (i)Β General Counsel to the CLO Servicer, dated the Closing Date, regarding certain issues of New York law, in a form satisfactory to the Trustee and (ii)Β Xxxxxxx LLP, counsel to Arbor Realty SR,Β Inc., dated the Closing Date, regarding certain issues of Maryland law, in a form satisfactory to the Trustee;
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(l)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of Xxxxxx and Xxxxxx, Cayman Islands counsel to the Issuer, dated the Closing Date, regarding certain issues of Cayman Islands law, in a form satisfactory to the Trustee;
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(m)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an opinion of (i)Β senior corporate counsel of U.S. Bank National Association, dated as of the Closing Date, regarding certain matters of United States law and (ii)Β XxxxxxΒ & Bird LLP, counsel to U.S. Bank National Association, regarding certain matters of New York and Minnesota law;
Β
(n)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an Officerβs Certificate given on behalf of the Issuer and without personal liability, stating that the Issuer is not in Default under this Indenture and that the issuance of the Securities by the Issuer will not result in a breach of any of the terms, conditions or provisions of, or constitute a Default under, the Governing Documents of the Issuer, any indenture or other agreement or instrument to which the Issuer is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which the Issuer is a party or by which it may be bound or to which it may be subject; that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Notes applied for and all conditions precedent provided in the Preferred Share Paying Agency Agreement relating to the issuance by the Issuer of the Preferred Shares have been complied with;
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(o)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an Officerβs Certificate given on behalf of the Co-Issuer stating that the Co-Issuer is not in Default under this Indenture and that the issuance of the Notes by the Co-Issuer will not result in a breach of any of the terms, conditions or provisions of, or constitute a Default under, the Governing Documents of the Co-Issuer, any indenture or other agreement or instrument to which the Co-Issuer is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which the Co-Issuer is a party or by which it may be bound or to which it may be subject; that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Notes applied for have been complied with; and that all expenses due or accrued with respect to the offering or relating to actions taken on or in connection with the Closing Date have been paid;
Β
(p)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β executed counterparts of the Loan Obligation Purchase Agreement, the Servicing Agreement, the Loan Obligation Management Agreement, the Advisory Committee Member Agreement, the Placement Agency Agreement, the Preferred Share Purchase Agreement, the Preferred Share Paying Agency Agreement and the Securities Account Control Agreement;
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(q)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an Accountantsβ Report comparing and agreeing to the following information as of the Closing Date:Β (i)Β the information with respect to each Loan Obligation set forth on the Schedule of Closing Date Loan Obligations attached hereto as Schedule A by reference to such sources as shall be specified therein and (ii)Β specifying the procedures undertaken by the accountants to review data and computations relating to the foregoing;
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(r)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an Officerβs Certificate from the Loan Obligation Manager confirming that PartΒ 1 of Schedule A hereto correctly lists (i)Β the Closing Date Loan Obligations to be Granted to the Trustee on the Closing Date and (ii)Β the Aggregate Principal Balance of the Loan Obligations as of JanuaryΒ 28, 2013;
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(s)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β evidence of preparation for filing at the appropriate filing office in the District of Columbia of a financing statement, on behalf of the Issuer, relating to the perfection of the lien of this Indenture;
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(t)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β an Issuer Order executed by the Issuer and the Co-Issuer directing the Trustee to (i)Β authenticate the Notes specified therein, in the amounts set forth therein and registered in the name(s)Β set forth therein and (ii)Β deliver the authenticated Notes as directed by the Issuer and the Co-Issuer; and
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(u)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β such other documents as the Trustee may reasonably require.
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SectionΒ 3.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Security for Notes.
Β
Prior to the issuance of the Notes on the Closing Date, the Issuer shall cause the following conditions to be satisfied:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Grant of Security Interest; Delivery of Loan Obligations.Β The Grant pursuant to the Granting Clauses of this Indenture of all of the Issuerβs right, title and interest in and to the Assets and the transfer of all Closing Date Loan Obligations acquired in connection therewith purchased by the Issuer on the Closing Date (as set forth in Schedule A hereto) to the Trustee, without recourse (except as expressly provided in each applicable Loan Obligation Purchase Agreement), in the manner provided in SectionΒ 3.3(a)Β and the crediting to the Custodial Account by the Custodial Securities Intermediary of such Closing Date Loan Obligations shall have occurred;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Certificate of the Issuer.Β A certificate of an Authorized Officer of the Issuer given on behalf of the Issuer and without personal liability, dated as of the Closing Date, delivered to the Trustee, to the effect that, in the case of each Closing Date Loan Obligation pledged to the Trustee for inclusion in the Assets on the Closing Date and immediately prior to the delivery thereof on the Closing Date:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer is the owner of such Loan Obligation free and clear of any liens, claims or encumbrances of any nature whatsoever except for those which are being released on the Closing Date;
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has acquired its ownership in such Closing Date Loan Obligation in good faith without notice of any adverse claim, except as described in paragraph (i)Β above;
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has not assigned, pledged or otherwise encumbered any interest in such Closing Date Loan Obligation (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests Granted pursuant to this Indenture;
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(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Underlying Instrument with respect to such Closing Date Loan Obligation does not prohibit the Issuer from Granting a security interest in and assigning and pledging such Closing Date Loan Obligation to the Trustee;
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(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the information set forth with respect to each such Closing Date Loan Obligation in Schedule A is true correct;
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(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Loan Obligations included in the Assets satisfy the requirements of SectionΒ 3.2(a); and
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(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (1)Β the Grant pursuant to the Granting Clauses of this Indenture shall, upon execution and delivery of this Indenture by the parties hereto, result in a valid and continuing security interest in favor of the Trustee for the benefit of the Secured Parties in all of the Issuerβs right, title and interest in and to the Closing Date Loan Obligations pledged to the Trustee for inclusion in the Assets on the Closing Date; and
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(2)Β upon (x)Β the execution and delivery of the Securities Account Control Agreement and the crediting of each Instrument evidencing the obligations of the borrowers under each Closing Date Loan Obligation to the Custodial Account in the manner set forth in SectionΒ 3.3(a)(i)Β hereof, (y)Β the delivery of the Instruments evidencing the obligations of the borrowers under each Closing Date Loan Obligation to the Custodial Securities Intermediary as set forth in SectionΒ 3.3(a)(iii)Β hereof and (z)Β the filing of a UCC-1 financing statement as set forth in SectionΒ 3.3(a)(v)Β hereof, the Trusteeβs security interest in all Closing Date Loan Obligations shall be a validly perfected, first priority security interest under the UCC as in effect in each applicable jurisdiction.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Rating Letters.Β The Trusteeβs receipt of a letter signed by the Rating Agency and confirming that (i)Β the ClassΒ A Notes have been rated βAaa(sf)β by Moodyβs and (ii)Β the ClassΒ B Notes have been rated at least βBaa2(sf)β by Moodyβs and that such ratings are in full force and effect on the Closing Date.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Accounts.Β Evidence of the establishment of the Payment Account, the Collection Account, the Unused Proceeds Account, the RDD Funding Account, the Expense Account, the Preferred Share Distribution Account and the Custodial Account.
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Deposit to Expense Account.Β On the Closing Date, the Issuer shall deposit into the Expense Account from the gross proceeds of the offering of the Securities, U.S.$200,000.
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Deposit to Unused Proceeds Account.Β On the Closing Date, the Issuer shall deposit into the Unused Proceeds Account, U.S.$50,000,000 plus $31,200,000, which represents the purchase price of the Closing Date Loan Obligations identified in Schedule A as West Palm Beach Multifamily Portfolio and Orlando Multifamily Portfolio.
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(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Issuance of Preferred Shares.Β The Issuer shall have delivered to the Trustee evidence that the Preferred Shares have been, or contemporaneously with the issuance of the Notes will be, (i) issued by the Issuer and (ii) acquired in their entirety by ARMS Equity.
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SectionΒ 3.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Transfer of Assets.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β U.S. Bank National Association is hereby appointed as Securities Intermediary (in such capacity, the βCustodial Securities Intermediaryβ) to hold all Assets delivered to it in physical form at its office in St. Xxxx, Minnesota.Β Any successor to such Securities Intermediary shall be a U.S. state or national bank or trust company that is not an Affiliate of the Issuer or the Co-Issuer and has capital and surplus of at least U.S.$100,000,000.Β Subject to the limited right to relocate Assets set forth in SectionΒ 7.5(b), the Custodial Securities Intermediary, as a Securities Intermediary, shall hold all Loan Obligations in the Custodial Account, all Eligible Investments and other investments purchased in accordance with this Indenture in the respective Accounts in which the funds used to purchase such investments are held in accordance with ArticleΒ 10 and, in respect of each Account (other than the Payment Account and the Preferred Share Distribution Account), the Trustee shall have entered into an agreement with the Issuer and the Custodial Securities Intermediary (the βSecurities Account Control Agreementβ) providing, inter alia, that the establishment and maintenance of such Account will be governed by a law satisfactory to the Issuer, the Trustee and the Custodial Securities Intermediary.Β To the maximum extent feasible, Assets shall be transferred to the Trustee as Security Entitlements in the manner set forth in clause (i)Β below.Β In the event that the measures set forth in clause (i)Β below cannot be taken as to any Assets, such Asset may be transferred to the Trustee in the manner set forth in clauses (ii)Β through (vii)Β below, as appropriate.Β The security interest of the Trustee in Assets shall be perfected and otherwise evidenced as follows:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the case of such Assets consisting of Security Entitlements, by the Issuer (A)Β causing the Custodial Securities Intermediary, in accordance with the Securities Account Control Agreement, to indicate by book entry that a Financial Asset has been credited to the Custodial Account and (B)Β causing the Custodial Securities Intermediary to agree pursuant to the Securities Account Control Agreement that it will comply with Entitlement Orders originated by the Trustee with respect to each such Security Entitlement without further consent by the Issuer;
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the case of Assets that are βuncertificated securitiesβ (as such term is defined in the UCC), to the extent that any such uncertificated securities do not constitute Financial Assets forming the basis of Security Entitlements by the Trustee pursuant to clause (i)Β (the βUncertificated Securitiesβ), by the Issuer (A)Β causing the issuer(s)Β of such Uncertificated Securities to register on their respective books the Trustee as the registered owner thereof upon original issue or transfer thereof or (B)Β causing another Person, other than a Securities Intermediary, either to become the registered owner of such
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Uncertificated Securities on behalf of the Trustee, or such Person having previously become the registered owner, to acknowledge that it holds such Uncertificated Securities for the Trustee;
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the case of Assets consisting of Certificated Securities in registered form to the extent that any such Certificated Securities do not constitute Financial Assets forming the basis of Security Entitlements acquired by the Trustee pursuant to clause (i)Β (the βRegistered Securitiesβ), by the Issuer (A)Β causing (1)Β the Trustee to obtain possession of such Registered Securities in the State of Minnesota or (2)Β another Person, other than a Securities Intermediary, either to acquire possession of such Registered Securities on behalf of the Trustee, or having previously acquired such Registered Securities, in either case, in the State of Minnesota, to acknowledge that it holds such Registered Securities for the Trustee and (B)Β causing (1)Β the endorsement of such Registered Securities to the Trustee by an effective endorsement or (2)Β the registration of such Registered Securities in the name of the Trustee by the issuer thereof upon its original issue or registration of transfer;
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(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the case of Assets consisting of Certificated Securities in bearer form, to the extent that any such Certificated Securities do not constitute Financial Assets forming the basis of Security Entitlements acquired by the Trustee pursuant to clause (i)Β (the βBearer Securitiesβ), by the Issuer causing (A)Β the Trustee to obtain possession of such Bearer Securities in the State of Minnesota or (B)Β another Person, other than a Securities Intermediary, either to acquire possession of such Bearer Securities on behalf of the Trustee or, having previously acquired possession of such Bearer Securities, in either case, in the State of Minnesota, to acknowledge that it holds such Bearer Securities for the Trustee;
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(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the case of Assets that consist of Instruments (the βMinnesota Collateralβ), to the extent that any such Minnesota Collateral does not constitute a Financial Asset forming the basis of a Security Entitlement acquired by the Trustee pursuant to clause (i), by the Issuer causing (A)Β the Trustee to acquire possession of such Minnesota Collateral in the State of Minnesota or (B)Β another Person (other than the Issuer or a Person controlling, controlled by, or under common control with, the Issuer) (1)Β to (x)Β take possession of such Minnesota Collateral in the State of Minnesota and (y)Β authenticate a record acknowledging that it holds such possession for the benefit of the Trustee or (2)Β to (x)Β authenticate a record acknowledging that it will hold possession of such Minnesota Collateral for the benefit of the Trustee and (y)Β take possession of such Minnesota Collateral in the State of Minnesota; and
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(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the case of Assets that consist of General Intangibles and all other Assets of the Issuer in which a security interest may be perfected by filing a financing statement under ArticleΒ 9 of the UCC as in effect in the District of Columbia, filing or causing the filing of a UCC financing statement naming the Issuer as debtor and the Trustee as secured party, which financing statement reasonably identifies all such Assets, with the Recorder of Deeds of the District of Columbia.
Β
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer hereby authorizes the filing of UCC financing statements describing as the collateral covered thereby βall of the debtorβs personal property and assets,β or words to that effect, notwithstanding that such wording may be broader in scope than the Assets described in this Indenture.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Without limiting the foregoing, the Issuer and the Trustee on behalf of the Bank agree, and the Bank shall cause the Custodial Securities Intermediary, to take such different or additional action as the Trustee may reasonably request in order to maintain the perfection and priority of the security interest of the Trustee in the event of any change in applicable law or regulation, including Articles 8 and 9 of the UCC and Treasury Regulations governing transfers of interests in Government Items (it being understood that the Trustee shall be entitled to rely upon an Opinion of Counsel, including an Opinion of Counsel delivered in accordance with SectionΒ 3.1(d), as to the need to file any financing statements or continuation statements, the dates by which such filings are required to be made and the jurisdictions in which such filings are required to be made).
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Without limiting any of the foregoing, in connection with each Grant of a Loan Obligation hereunder, the Issuer shall deliver (or cause to be delivered by the applicable Seller) to the Custodial Securities Intermediary, in each case to the extent specified on the closing checklist for such Loan Obligation provided to the Custodial Securities Intermediary by the Issuer (or the applicable Seller) the following documents (collectively, the βLoan Obligation Fileβ):
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original mortgage note or promissory note, as applicable, bearing all intervening endorsements, endorsed in blank or endorsed βPay to the order of US Bank as Trustee without recourse,β and signed in the name of the last endorsee by an authorized Person;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β An original of any participation certificate together with any and all intervening endorsements thereon, endorsed in blank on its face or by endorsement or stock power attached thereto (without recourse, representation or warranty, express or implied);
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β An original of any participation agreement relating to any item of collateral that is not evidenced by a promissory note;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β An original blanket assignment of all unrecorded documents in blank (or, in the case of a Senior Participation, a copy of any omnibus assignment in blank), in each case in form and substance acceptable for recording;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original (or in the case of a Senior Participation, a copy) of any guarantee executed in connection with the promissory note;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original mortgage with evidence of recording thereon, or a copy thereof together with an Officerβs Certificate of the IssuerΒ (or the applicable Seller) certifying that such represents a true and correct copy of the original and that such original has been submitted or delivered to an escrow agent for recordation in the
Β
Β
appropriate governmental recording office of the jurisdiction where the encumbered property is located, in which case, recordation information shall not be required;
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The originals of all assumption, modification, consolidation or extension agreements with evidence of recording thereon (or a copy thereof together with an Officerβs Certificate of the Issuer (or the applicable Seller) certifying that such represents a true and correct copy of the original and that such original has been submitted or delivered to an escrow agent for recordation in the appropriate governmental recording office of the jurisdiction where the encumbered property is located, in which case, recordation information shall not be required), together with any other recorded document relating to the Loan Obligation otherwise included in the Loan Obligation File;
Β
(viii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original assignment of mortgage in blank, in form and substance acceptable for recording and signed in the name of the last endorsee;
Β
(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The originals of all intervening assignments of mortgage, if any, with evidence of recording thereon, showing an unbroken chain of title from the originator thereof to the last endorsee, or copies thereof together with an Officerβs Certificate of the Issuer certifying that such represent true and correct copies of the originals and that such originals have each been submitted or delivered to an escrow agent for recordation in the appropriate governmental recording office of the jurisdiction where the encumbered property is located, in which case, recordation information shall not be required;
Β
(x)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β An original mortgagee policy of title insurance or a conformed version of the mortgageeβs title insurance commitment either marked as binding for insurance or attached to an escrow closing letter, countersigned by the title company or its authorized agent if the original mortgageeβs title insurance policy has not yet been issued;
Β
(xi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original (or, in the case of a Senior Participation, a copy) of any security agreement, chattel mortgage or equivalent document executed in connection with the Loan Obligation;
Β
(xii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original assignment of leases and rents, if any, with evidence of recording thereon, or a copy thereof together with an Officerβs Certificate of the Issuer certifying that such copy represents a true and correct copy of the original that has been submitted or delivered to an escrow agent for recordation in the appropriate governmental recording office of the jurisdiction where the encumbered property is located, in which case, recordation information shall not be required;
Β
(xiii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original assignment of any assignment of leases and rents in blank, in form and substance acceptable for recording;
Β
(xiv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β A filed copy of the UCC-1 financing statements (and, with respect to Senior Participations, to the extent that the Issuer (or the applicable Seller) has been furnished with same) with evidence of filing thereon, and UCC-3 assignments in blank, which UCC-3 assignments shall be in form and substance acceptable for filing;
Β
Β
(xv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original (or, in the case of a Senior Participation, a copy) of any environmental indemnity agreement;
Β
(xvi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The original (or, in the case of a Senior Participation, a copy) of any general collateral assignment of all other documents held by the Issuer (or, in the case of a Senior Participation, by the lead lender) in connection with the Loan Obligation;
Β
(xvii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β An original (or, in the case of a Senior Participation, a copy) of any disbursement letter from the collateral obligor to the original mortgagee;
Β
(xviii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β An original of the survey of the encumbered property (or, in the case of a Senior Participation, a copy thereof provided same has been furnished to the Issuer (or the applicable Seller) by the related lead lender); and
Β
(xix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β A copy of any opinion of counsel (and, with respect to a Senior Participation, only to the extent such copy shall have been furnished to the Issuer (or the applicable Seller) by the lead lender).
Β
With respect to any documents which have been delivered or are being delivered to recording offices for recording and have not been returned to the Issuer (or the applicable Seller) in time to permit their delivery hereunder at the time required, the Issuer (or the applicable Seller) shall deliver such original recorded documents to the Custodial Securities Intermediary promptly when received by the Issuer (or the applicable Seller) from the applicable recording office.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The execution and delivery of this Indenture by the Trustee shall constitute certification by the Trustee that (i)Β each original note specified to the Trustee by the Issuer (or the applicable Seller) and all allonges thereto, if any, have been received by the Custodial Securities Intermediary; and (ii)Β such original note has been reviewed by the Custodial Securities Intermediary and (A)Β appears regular on its face (handwritten additions, changes or corrections shall not constitute irregularities if initialed by the borrower), (B)Β appears to have been executed and (C)Β purports to relate to the Loan Obligation.Β The Trustee agrees to review or cause to be reviewed the Loan Obligation File within 30 days after the Closing Date, and to deliver to the Issuer and the Loan Obligation Manager a report in the form of ExhibitΒ D attached hereto, indicating, subject to any exceptions found by it in such review, (A)Β those documents referred to in SectionΒ 3.3(d)Β that have been received, and (B)Β that such documents have been executed, appear on their face to be what they purport to be, purport to be recorded or filed (as applicable) and have not been torn, mutilated or otherwise defaced, and appear on their faces to relate to the Mortgage Loan.Β The Custodial Securities Intermediary shall have no responsibility for reviewing the Loan Obligation File except as expressly set forth in this SectionΒ 3.3(e).Β Neither the Trustee nor the Custodial Securities Intermediary shall be under any duty or obligation to inspect, review, or examine any such documents, instruments or certificates to independently determine that they are valid, genuine, enforceable, legally sufficient, duly authorized, or appropriate for the represented purpose, whether the text of any assignment or endorsement is in proper or recordable form (except to determine if the endorsement conforms to the requirements of SectionΒ 3.3(d), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, to independently determine that any document has actually been filed or recorded in the appropriate office, that any document is other than what
Β
Β
it purports to be on its face, or whether the title insurance policies relate to the Underlying Mortgaged Property.
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Upon the first anniversary of the Closing Date, the Custodial Securities Intermediary shall (i)Β deliver to the Issuer and the Loan Obligation Manager a final exception report as to any remaining documents that are not in the Loan Obligation File and (ii)Β request that the Issuer cause such document deficiency to be cured.
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Without limiting the generality of the foregoing:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β from time to time upon the request of the Trustee, Loan Obligation Manager or CLO Servicer, the Issuer shall deliver (or cause to be delivered) to the Custodial Securities Intermediary any Underlying Instrument in the possession of the Issuer and not previously delivered hereunder (including originals of Underlying Instruments not previously required to be delivered as originals) and as to which the Trustee, Loan Obligation Manager or CLO Servicer, as applicable, shall have reasonably determined to be necessary or appropriate for the administration of such Loan Obligation hereunder or under the Loan Obligation Management Agreement or under the Servicing Agreement or for the protection of the security interest of the Trustee under this Indenture;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in connection with any delivery of documents to the Custodial Securities Intermediary pursuant to clauses (i)Β and (ii)Β above, the Trustee shall deliver to the Loan Obligation Manager and the CLO Servicer, on behalf of the Issuer, a Trust Receipt in the form of ExhibitΒ E acknowledging the receipt of such documents by the Custodial Securities Intermediary and that it is holding such documents subject to the terms of this Indenture; and
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β from time to time upon request of the Loan Obligation Manager or the CLO Servicer, the Custodial Securities Intermediary shall, upon delivery by the Loan Obligation Manager or the CLO Servicer of a duly completed Request for Release in the form of ExhibitΒ F hereto, release to the Loan Obligation Manager or the CLO Servicer such of the Underlying Instruments then in its custody as the Loan Obligation Manager or the CLO Servicer reasonably so requests.Β By submission of any such Request for Release, the Loan Obligation Manager or the CLO Servicer, as applicable, shall be deemed to have represented and warranted that it has determined in accordance with the Loan Obligation Manager Standard or the Servicing Standard, respectively, set forth in the Loan Obligation Management Agreement or the Servicing Agreement, as the case may be, that the requested release is necessary for the administration of such Loan Obligation hereunder or under the Loan Obligation Management Agreement or under the Servicing Agreement or for the protection of the security interest of the Trustee under this Indenture.Β The Loan Obligation Manager or the CLO Servicer shall return to the Custodial Securities Intermediary each Underlying Instrument released from custody pursuant to this clause (iv)Β within 20 Business Days of receipt thereof (except such Underlying Instruments as are released in connection with a sale, exchange or other disposition, in each case only as permitted under this Indenture, of the related Loan Obligation that is consummated within such 20-day period).Β Notwithstanding the
Β
Β
foregoing provisions of this clause (iv), (A)Β any note, certificate or other instrument evidencing a Pledged Loan Obligation shall be released only for the purpose of (1)Β a sale, exchange or other disposition of such Pledged Loan Obligation that is permitted in accordance with the terms of this Indenture, (2)Β presentation, collection, renewal or registration of transfer of such Loan Obligation or (3)Β in the case of any note, in connection with a payment in full of all amounts owing under such note, and (B)Β the Custodial Securities Intermediary may refuse to honor any Request for Release following the occurrence of an Event of Default under this Indenture.
Β
(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β As of the Closing Date (with respect to the Assets owned or existing as of the Closing Date) and each date on which an Asset is acquired (only with respect to each Asset so acquired or arising after the Closing Date), the Issuer represents and warrants as follows:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β this Indenture creates a valid and continuing security interest (as defined in the UCC) in the Assets in favor of the Trustee for the benefit of the Secured Parties, which security interest is prior to all other liens, and is enforceable as such against creditors of and purchasers from the Issuer;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer owns and has good and marketable title to such Assets free and clear of any lien, claim or encumbrance of any Person;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the case of each Asset, the Issuer has acquired its ownership in such Asset in good faith without notice of any adverse claim as defined in SectionΒ 8-102(a)(1)Β of the UCC as in effect on the date hereof;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β other than the security interest granted to the Trustee for the benefit of the Secured Parties pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Assets;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has not authorized the filing of, and is not aware of, any financing statements against the Issuer that include a description of collateral covering the Assets other than any financing statement (x)Β relating to the security interest granted to the Trustee for the benefit of the Secured Parties hereunder or (y)Β that has been terminated; the Issuer is not aware of any judgment lien, Pension Benefit Guarantee Corporation lien or tax lien filings against the Issuer;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has received all consents and approvals required by the terms of each Asset and the Underlying Instruments to grant to the Trustee its interest and rights in such Asset hereunder;
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets granted to the Trustee for the benefit of the Secured Parties hereunder;
Β
(viii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β each Asset is an Instrument, a General Intangible, a Certificated Security or an Uncertificated Security, or has been or will have been credited to a Securities Account;
Β
Β
(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Custodial Securities Intermediary has agreed to treat all assets credited to any of the Accounts as Financial Assets;
Β
(x)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has delivered a fully executed Securities Account Control Agreement pursuant to which the Custodial Securities Intermediary has agreed to comply with all instructions originated by the Trustee relating to each of the Accounts without further consent of the Issuer; none of the Accounts is in the name of any person other than the Issuer or the Trustee; the Issuer has not consented to the Custodial Securities Intermediary to comply with any Entitlement Orders in respect of the Accounts and any Security Entitlement credited to any of the Accounts originated by any person other than the Trustee;
Β
(xi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (A)Β all original executed copies of each promissory note or other writings that constitute or evidence any pledged obligation that constitutes an Instrument have been delivered to the Custodial Securities Intermediary for the benefit of the Trustee, (B)Β the Issuer has received a written acknowledgement from the Custodial Securities Intermediary that the Custodial Securities Intermediary is acting solely as agent of the Trustee and (C)Β none of the promissory notes or other writings that constitute or evidence such collateral has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed by the Issuer to any Person other than the Trustee;
Β
(xii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β each of the Accounts constitutes a Securities Account in respect of which U.S. Bank National Association has accepted to be Custodial Securities Intermediary pursuant to the Securities Account Control Agreement on behalf of the Trustee as secured party under this Indenture.
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall cause all Eligible Investments purchased by the Trustee or the Loan Obligation Manager on behalf of the Issuer to be promptly credited to the applicable Account.
Β
ARTICLEΒ 4
Β
SATISFACTION AND DISCHARGE
Β
SectionΒ 4.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Satisfaction and Discharge of Indenture.
Β
This Indenture shall be discharged and shall cease to be of further effect except as to (i)Β rights of registration of transfer and exchange, (ii)Β substitution of mutilated, defaced, destroyed, lost or stolen Notes, (iii)Β rights of Noteholders to receive payments of principal thereof and interest thereon, (iv)Β the rights, protections, indemnities and immunities of the Trustee and the specific obligations set forth below hereunder, (v)Β the rights, obligations and immunities of the Loan Obligation Manager hereunder and under the Loan Obligation Management Agreement, (vi)Β the rights, protections, indemnities and immunities of the Collateral Administrator hereunder and under the Collateral Administration Agreement and (vii)Β the rights of Noteholders as beneficiaries hereof with respect to the property deposited with the Trustee and payable to all or any of them (and the Trustee, on demand of and at the expense of
Β
Β
the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture) when:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (i)Β either:
Β
(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β all Notes theretofore authenticated and delivered to Noteholders (other than (A)Β Notes which have been mutilated, defaced, destroyed, lost or stolen and which have been replaced or paid as provided in SectionΒ 2.6 and (B)Β Notes for which payment has theretofore irrevocably been deposited in trust and thereafter repaid to the Issuer or discharged from such trust, as provided in SectionΒ 7.3) have been delivered to the Trustee for cancellation; or
Β
(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β all Notes not theretofore delivered to the Trustee for cancellation (A)Β have become due and payable, or (B)Β shall become due and payable at their Stated Maturity Date within one year, or (C)Β are to be called for redemption pursuant to ArticleΒ 9 under an arrangement satisfactory to the Trustee for the giving of notice of redemption by the Issuer and the Co-Issuer pursuant to SectionΒ 9.3 and either (x)Β the Issuer has irrevocably deposited or caused to be deposited with the Trustee, in trust for such purpose, Cash or non-callable direct obligations of the United States of America; which obligations are entitled to the full faith and credit of the United States of America or are debt obligations which are rated βAaaβ by Moodyβs in an amount sufficient, as recalculated by a firm of Independent nationally-recognized certified public accountants, to pay and discharge the entire indebtedness (including, in the case of a redemption pursuant to SectionΒ 9.1 or SectionΒ 9.2, the Redemption Price) on such Notes not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Notes which have become due and payable), or to the respective Stated Maturity Date or the respective Redemption Date, as the case may be or (y)Β in the event all of the Assets are liquidated following the satisfaction of the conditions specified in ArticleΒ 5, the Issuer shall have deposited or caused to be deposited with the Trustee, in trust, all proceeds of such liquidation of the Assets, for payment in accordance with the Priority of Payments;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has paid or caused to be paid all other sums then due and payable hereunder (including any amounts then due and payable pursuant to the Collateral Administration Agreement and the Loan Obligation Management Agreement) by the Issuer and no other amounts are scheduled to be due and payable by the Issuer other than Dissolution Expenses;Β and
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Co-Issuers have delivered to the Trustee Officerβs certificates and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with;
Β
provided, however, that in the case of clause (a)(i)(2)(x)Β above, the Issuer has delivered to the Trustee an opinion of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP, or an opinion of another tax counsel of nationally recognized standing in the United States experienced in such
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Β
matters to the effect that the Noteholders would recognize no income gain or loss for U.S. federal income tax purposes as a result of such deposit and satisfaction and discharge of this Indenture; or
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (i)Β the Trustee confirms to the Issuer that:
Β
(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee is not holding any Assets (other than (x)Β the Loan Obligation Management Agreement, the Servicing Agreement, the Collateral Administration Agreement and the Securities Account Control Agreement and (y)Β Cash in an amount not greater than the Dissolution Expenses); and
Β
(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β no assets (other than Excepted Assets or Cash in an amount not greater than the Dissolution Expenses) are on deposit in or to the credit of any Accounts in the name of the Issuer (or the Trustee for the benefit of the Issuer or any Secured Party);
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β each of the Co-Issuers has delivered to the Trustee a certificate stating that (1)Β there are no Assets (other than (x)Β the Loan Obligation Management Agreement, the Servicing Agreement, the Collateral Administration Agreement and the Securities Account Control Agreement and (y)Β Cash in an amount not greater than the Dissolution Expenses) that remain subject to the lien of this Indenture, and (2)Β all funds on deposit in or to the credit of the Accounts have been distributed in accordance with the terms of this Indenture or have otherwise been irrevocably deposited with the Trustee for such purpose; and
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Co-Issuers have delivered to the Trustee Officerβs certificates and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Β
Notwithstanding the satisfaction and discharge of this Indenture, the rights and obligations of the Issuer, the Co-Issuer, the Trustee, and, if applicable, the Noteholders, as the case may be, under Sections 2.7, 4.2, 5.4(d), 5.9, 5.18, 6.7, 7.3 and 14.12 hereof shall survive.
Β
SectionΒ 4.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Application of Amounts held in Trust.
Β
All amounts deposited with the Trustee pursuant to SectionΒ 4.1 shall be held in trust and applied by it in accordance with the provisions of the Notes and this Indenture (including, without limitation, the Priority of Payments) to the payment of the principal and interest, either directly or through any Paying Agent, as the Trustee may determine, and such amounts shall be held in a segregated account identified as being held in trust for the benefit of the Secured Parties.
Β
SectionΒ 4.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Repayment of Amounts Held by Paying Agent.
Β
In connection with the satisfaction and discharge of this Indenture with respect to the Notes, all amounts then held by the Paying Agent other than the Trustee under the provisions of this Indenture shall, upon demand of the Issuer and the Co-Issuer, be paid to the Trustee to be held and applied pursuant to SectionΒ 7.3 hereof and, in the case of amounts payable on the Notes,
Β
Β
in accordance with the Priority of Payments and thereupon such Paying Agent shall be released from all further liability with respect to such amounts.
Β
SectionΒ 4.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Limitation on Obligation to Incur Company Administrative Expenses.
Β
If at any time after an Event of Default has occurred and the Notes have been declared immediately due and payable, the sum of (i)Β Eligible Investments, (ii)Β Cash and (iii)Β amounts reasonably expected to be received by the Issuer in Cash during the current Due Period (as certified by the Loan Obligation Manager in its reasonable judgment) is less than the sum of Dissolution Expenses and any accrued and unpaid Company Administrative Expenses, then notwithstanding any other provision of this Indenture, the Issuer shall no longer be required to incur Company Administrative Expenses as otherwise required by this Indenture to any Person other than the Trustee and its Affiliates, and failure to pay such amounts or provide or obtain such opinions, reports or services shall not constitute a Default hereunder, and the Trustee shall have no liability for any failure to obtain or receive any of the foregoing opinions, reports or services.
Β
ARTICLEΒ 5
Β
REMEDIES
Β
SectionΒ 5.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Events of Default.
Β
βEvent of Default,β wherever used herein, means 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, ruleΒ or regulation of any administrative or governmental body):
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β a default in the payment of any interest on any Note when the same becomes due and payable and the continuation of any such default for three Business Days after a trust officer of the Trustee has actual knowledge or receives notice from any holder of Notes of such payment default; provided that in the case of a failure to disburse funds due to an administrative error or omission by the Loan Obligation Manager, Trustee, Collateral Administrator or any paying agent, such failure continues for five (5)Β Business Days after a trust officer of the Trustee receives written notice or has actual knowledge of such administrative error or omission; or
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β a default in the payment of principal (or the related Redemption Price, if applicable) of any ClassΒ A Note when the same becomes due and payable, at its Stated Maturity Date or any Redemption Date, or if there are no ClassΒ A Notes Outstanding, a default in the payment of principal (or the related Redemption Price, if applicable) of any ClassΒ B Note when the same becomes due and payable at its Stated Maturity Date or any Redemption Date; provided, in each case, that in the case of a failure to disburse funds that is due to an administrative error or omission by the Loan Obligation Manager, Trustee, Collateral Administrator or any paying agent, such failure continues for five (5)Β Business Days after a trust
Β
Β
officer of the Trustee receives written notice or has actual knowledge of such administrative error or omission;
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the failure on any Payment Date to disburse amounts available in the Payment Account in accordance with the Priority of Payments set forth under SectionΒ 11.1(a)Β (other than (i)Β a default in payment described in clause (a)Β or (b)Β above and (ii)Β unless the holders of the Preferred Shares object, a failure to disburse any amounts to the Preferred Shares Paying Agent for distribution to the holders of the Preferred Shares), which failure continues for a period of three Business Days or, in the case of a failure to disburse such amounts due to an administrative error or omission by the Trustee or Paying Agent, which failure continues for five (5)Β Business Days;
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β either the Issuer, the Co-Issuer or the pool of Assets becomes an investment company required to be registered under the 1940 Act;
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β a default in the performance, or breach, of any other covenant or other agreement of the Issuer or Co-Issuer (other than the covenant to make the payments described in clauses (a), (b)Β or (c)Β above or to meet the Note Protection Tests) or any representation or warranty of the Issuer or Co-Issuer hereunder or in any certificate or other writing delivered pursuant hereto or in connection herewith proves to be incorrect in any material respect when made, and the continuation of such default or breach for a period of 30 days (or, if such default, breach or failure has an adverse effect on the validity, perfection or priority of the security interest granted hereunder, 15 days) after either the Issuer, the Co-Issuer or the Loan Obligation Manager has actual knowledge thereof or after notice thereof to the Issuer, the Co-Issuer and the Loan Obligation Manager by the Trustee or to the Issuer, the Co-Issuer, the Loan Obligation Manager and the Trustee by Holders of at least 25% of the Aggregate Outstanding Amount of the Controlling Class;
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the entry of a decree or order by a court having competent jurisdiction adjudging the Issuer or the Co-Issuer as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or the Co-Issuer under the Bankruptcy Code, or any bankruptcy, insolvency, reorganization or similar law enacted under the laws of the Cayman Islands or any other applicable law, or appointing a receiver, liquidator, assignee, or sequestrator (or other similar official) of the Issuer or the Co-Issuer or of any substantial part of its property, respectively, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days;
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the institution by the Issuer or the Co-Issuer of proceedings to be adjudicated as bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code, or any bankruptcy, insolvency, reorganization or similar law enacted under the laws of the Cayman Islands or any other similar applicable law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee or sequestrator (or other similar official) of the Issuer or the Co-Issuer or of any substantial part of its property, respectively, 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
Β
Β
debts generally as they become due, or the taking of any action by the Issuer in furtherance of any such action;
Β
(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β one or more final judgments being rendered against the Issuer or the Co-Issuer which exceed, in the aggregate, U.S.$1,000,000 and which remain unstayed, undischarged and unsatisfied for 30 days after such judgment(s)Β becomes nonappealable, unless adequate funds have been reserved or set aside for the payment thereof, and unless (except as otherwise specified in writing by the Rating Agency) a No Downgrade Confirmation has been received from the Rating Agency; or
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer loses its status as a Qualified REIT Subsidiary or other disregarded entity of the Arbor Parent for U.S. federal income tax purposes, unless (A)Β within 90 days, the Issuer either (1)Β delivers an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters to the effect that, notwithstanding the Issuerβs loss of Qualified REIT Subsidiary or disregarded entity status for U.S. federal income tax purposes, the Issuer is not, and has not been, an association (or publicly traded partnership) taxable as a corporation, or is not, and has not been, otherwise subject to U.S. federal income tax on a net basis and the Noteholders are not otherwise materially adversely affected by the loss of Qualified REIT Subsidiary or disregarded entity status for U.S. federal income tax purposes or (2)Β receives an amount from the Preferred Shareholders sufficient to discharge in full the amounts then due and unpaid on the Notes and amounts and expenses described in clausesΒ (1)Β through (10)Β under SectionΒ 11.1(a)(i)Β in accordance with the Priority of Payments or (B)Β all Classes of the Notes are subject to a Tax Redemption announced by the Issuer in compliance with this Indenture, and such redemption has not been rescinded.
Β
Upon becoming aware of the occurrence of an Event of Default, the Issuer, shall promptly notify (or shall procure the prompt notification of) the Trustee, the Preferred Shares Paying Agent and the Preferred Shareholders in writing.Β If the Loan Obligation Manager has actual knowledge of the occurrence of an Event of Default, the Loan Obligation Manager shall promptly notify, in writing, the Trustee, the Noteholders and the Rating Agency of the occurrence of such Event of Default.
Β
SectionΒ 5.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Acceleration of Maturity; Rescission and Annulment.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If an Event of Default shall occur and be continuing (other than the Events of Default specified in SectionΒ 5.1(f)Β or 5.1(g)), the Trustee may (and shall at the direction of a Majority, by outstanding principal amount, of each ClassΒ of Notes voting as a separate ClassΒ (excluding any Notes owned by the Loan Obligation Manager or any of its Affiliates or by any accounts managed by them), declare the principal of and accrued and unpaid interest on all the Notes to be immediately due and payable (and any such acceleration shall automatically terminate the Replacement Period).Β If an Event of Default described in SectionΒ 5.1(f)Β or 5.1(g)Β above occurs, such an acceleration shall occur automatically and without any further action and any such acceleration shall automatically terminate the Replacement Period.Β If the Notes are accelerated, payments shall be made in the order and priority set forth in SectionΒ 11.1(a)Β hereof.Β If the Notes are accelerated (whether such acceleration is automatic or otherwise), the Issuer (or the Loan Obligation Manager on its behalf) shall take the actions described in SectionΒ 18.1(c)Β herein.
Β
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β At any time after such a declaration of acceleration of Maturity of the Notes has been made, and before a judgment or decree for payment of the amounts due has been obtained by the Trustee as hereinafter provided in this ArticleΒ 5, a Majority of each ClassΒ of Notes (voting as a separate Class), other than with respect to an Event of Default specified in SectionΒ 5.1(d), 5.1(e), 5.1(h)Β or 5.1(i), by written notice to the Issuer, the Co-Issuer and the Trustee, may rescind and annul such declaration and its consequences if:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer or the Co-Issuer has paid or deposited with the Trustee a sum sufficient to pay:
Β
(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β all unpaid installments of interest on and principal on the Notes that would be due and payable hereunder if the Event of Default giving rise to such acceleration had not occurred;
Β
(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β all unpaid taxes of the Issuer and the Co-Issuer, Company Administrative Expenses and other sums paid or advanced by or otherwise due and payable to the Trustee hereunder;
Β
(3)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β with respect to the Advancing Agent and the Backup Advancing Agent, any amount due and payable for unreimbursed Interest Advances and Reimbursement Interest; and
Β
(4)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β with respect to the Loan Obligation Management Agreement, any Loan Obligation Manager Fee then due and any Company Administrative Expense due and payable to the Loan Obligation Manager thereunder; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee has determined that all Events of Default of which it has actual knowledge, other than the non-payment of the interest and principal on the Notes that have become due solely by such acceleration, have been cured and a Majority of the Controlling Class, by written notice to the Trustee, has agreed with such determination (which agreement shall not be unreasonably withheld or delayed) or waived as provided in SectionΒ 5.14.
Β
At any such time that the Trustee, subject to SectionΒ 5.2(b), shall rescind and annul such declaration and its consequences as permitted hereinabove, the Trustee shall preserve the Assets in accordance with the provisions of SectionΒ 5.5 with respect to the Event of Default that gave rise to such declaration; provided, however, that if such preservation of the Assets is rescinded pursuant to SectionΒ 5.5, the Notes may be accelerated pursuant to the first paragraph of this SectionΒ 5.2, notwithstanding any previous rescission and annulment of a declaration of acceleration pursuant to this paragraph.
Β
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Subject to Sections 5.4 and 5.5, a Majority of the Controlling ClassΒ shall have the right to direct the Trustee in the conduct of any Proceedings for any remedy available to the Trustee or in the sale of any or all of the Assets; provided that (i)Β such direction will not
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Β
conflict with any ruleΒ of law or this Indenture; (ii)Β the Trustee may take any other action not inconsistent with such direction; (iii)Β the Trustee determines that such action will not involve it in liability (unless the Trustee has received satisfactory indemnity or reasonable security against any such liability); and (iv)Β any direction to undertake a sale of the Assets may be made only as described in SectionΒ 5.17.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β As security for the payment by the Issuer of the compensation and expenses of the Trustee and any sums the Trustee may be entitled to receive as indemnification by the Issuer, the Issuer hereby grants the Trustee a lien on the Assets, which lien is senior to the lien of the Noteholders.Β The Trusteeβs lien shall be subject to the Priority of Payments and exercisable by the Trustee only if the Notes have been declared due and payable following an Event of Default and such acceleration has not been rescinded or annulled.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β A Majority of the Aggregate Outstanding Amount of Notes of the Controlling Class, may, prior to the time a judgment or decree for the payment of amounts due has been obtained by the Trustee, waive any past Default on behalf of the holders of all the Notes and its consequences in accordance with SectionΒ 5.14.
Β
SectionΒ 5.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Collection of Indebtedness and Suits for Enforcement by Trustee.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer covenants that if a Default shall occur in respect of the payment of any interest on any ClassΒ A Note, the payment of principal on any ClassΒ A Note (but only after interest with respect to the ClassΒ A Notes and any amounts payable pursuant to SectionΒ 11.1(a)Β having a higher priority have been paid in full), the payment of interest on any ClassΒ B Note (but only after interest with respect to the ClassΒ A Notes and any amounts payable pursuant to SectionΒ 11.1(a)Β having a higher priority have been paid in full) or the payment of principal on any ClassΒ B Note (but only after interest and principal with respect to the ClassΒ A Notes and interest with respect to the ClassΒ B Notes and any amounts payable pursuant to SectionΒ 11.1(a)Β having a higher priority have been paid in full), the Issuer and Co-Issuer shall, upon demand of the Trustee or any affected Noteholder, pay to the Trustee, for the benefit of the Holder of such Note, the whole amount, if any, then due and payable on such Note for principal and interest or other payment with interest on the overdue principal and, to the extent that payments of such interest shall be legally enforceable, upon overdue installments of interest, at the applicable interest rate and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee and such Noteholder and their respective agents and counsel.
Β
If the Issuer or the Co-Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as Trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer and the Co-Issuer or any other obligor upon the Notes and collect the amounts adjudged or decreed to be payable in the manner provided by law out of the Assets.
Β
If an Event of Default occurs and is continuing, the Trustee shall proceed to protect and enforce its rights and the rights of the Noteholders by such Proceedings (x)Β as directed by a Majority of the Controlling ClassΒ or (y)Β in the absence of direction by a Majority of
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Β
the Controlling Class, as deemed most effectual by the Trustee; provided, that (a)Β such direction must not conflict with any ruleΒ of law or with any express provision of this Indenture, (b)Β the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, (c)Β the Trustee has been provided with security or indemnity reasonably satisfactory to it, and (d)Β notwithstanding the foregoing, any direction to the Trustee to undertake a sale of Assets may be given only in accordance with the preceding paragraph, in connection with any sale and liquidation of all or a portion of the Assets, the preceding sentence, and, in all cases, the applicable provisions of this Indenture.Β Such Proceedings shall be used 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 or legal or equitable right vested in the Trustee by this Indenture or by law.
Β
In the case where (x)Β there shall be pending Proceedings relative to the Issuer or the Co-Issuer under the Bankruptcy Code, any bankruptcy, insolvency, reorganization or similar law enacted under the laws of the Cayman Islands, or any other applicable bankruptcy, insolvency or other similar law, (y)Β a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or the Co-Issuer, or their respective property, or (z)Β there shall be any other comparable Proceedings relative to the Issuer or the Co-Issuer, or the creditors or property of the Issuer or the Co-Issuer, regardless of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration, or otherwise and regardless of whether the Trustee shall have made any demand pursuant to the provisions of this SectionΒ 5.3, the Trustee shall be entitled and empowered, by intervention in such Proceedings or otherwise:
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Noteholders allowed in any Proceedings relative to the Issuer, the Co-Issuer or other obligor upon the Notes or to the creditors or property of the Issuer, the Co-Issuer or such other obligor;
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β unless prohibited by applicable law and regulations, to vote on behalf of the Noteholders in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or of a Person performing similar functions in comparable Proceedings; and
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to collect and receive any amounts or other property payable to or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Noteholders and of the Trustee on their behalf; and any trustee, receiver or liquidator, custodian or other similar official is hereby authorized by each of the Noteholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Noteholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred, and all
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advances made, by the Trustee and each predecessor Trustee except as a result of its own negligence, willful misconduct or bad faith.
Β
Nothing herein contained shall be deemed to authorize the Trustee to authorize, consent to, vote for, accept or adopt, on behalf of any Noteholder, any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Noteholder in any such Proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
Β
All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any action or Proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, shall be applied as set forth in SectionΒ 5.7.
Β
In any Proceedings brought by the Trustee on behalf of the Noteholders, the Trustee shall be held to represent all the Holders of the Notes.
Β
Notwithstanding anything in this SectionΒ 5.3 to the contrary, the Trustee may not sell or liquidate the Assets or institute Proceedings in furtherance thereof pursuant to this SectionΒ 5.3 unless the conditions specified in SectionΒ 5.5(a)Β are met.
Β
SectionΒ 5.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Remedies.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If an Event of Default has occurred and is continuing, and the Notes have been declared due and payable and such declaration and its consequences have not been rescinded and annulled, the Issuer and the Co-Issuer agree that the Trustee may, after notice to the Noteholders, and shall, upon direction by a Majority of the Controlling Class, to the extent permitted by applicable law, exercise one or more of the following rights, privileges and remedies:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β institute Proceedings for the collection of all amounts then payable on the Notes or otherwise payable under this Indenture (whether by declaration or otherwise), enforce any judgment obtained and collect from the Assets any amounts adjudged due;
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β sell all or a portion of the Assets or rights of interest therein, at one or more public or private sales called and conducted in any manner permitted by law and in accordance with SectionΒ 5.17 hereof;
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Assets;
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(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Secured Parties hereunder; and
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(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β exercise any other rights and remedies that may be available at law or in equity;
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provided, however, that the Trustee may not sell or liquidate the Assets or institute Proceedings in furtherance thereof pursuant to this SectionΒ 5.4 unless either of the conditions specified in SectionΒ 5.5(a)Β is met.
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The Trustee may, but need not, obtain and rely upon an opinion of an Independent investment banking firm of national reputation with demonstrated capabilities in structuring and distributing notes or certificates similar to the Notes as to the feasibility of any action proposed to be taken in accordance with this SectionΒ 5.4 and as to the sufficiency of the proceeds and other amounts receivable with respect to the Assets to make the required payments of principal of and interest on the Notes and other amounts payable hereunder, which opinion shall be conclusive evidence as to such feasibility or sufficiency.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If an Event of Default as described in SectionΒ 5.1(e)Β hereof shall have occurred and be continuing, the Trustee may, and at the request of the Holders of not less than 25% of the Aggregate Outstanding Amount of the Controlling ClassΒ shall, institute a Proceeding solely to compel performance of the covenant or agreement or to cure the representation or warranty, the breach of which gave rise to the Event of Default under such Section, and enforce any equitable decree or order arising from such Proceeding.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Upon any Sale, whether made under the power of sale hereby given or by virtue of judicial proceedings, any Noteholder, Preferred Shareholder or the Loan Obligation Manager or any of its Affiliates may bid for and purchase the Assets or any part thereof and, upon compliance with the terms of Sale, may hold, retain, possess or dispose of such property in its or their own absolute right without accountability; and any purchaser at any such Sale may, in paying the purchase money, turn in any of the Notes in lieu of Cash equal to the amount which shall, upon distribution of the net proceeds of such sale, be payable on the Notes so turned in by such Holder (taking into account the ClassΒ of such Notes).Β Such Notes, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the Holders thereof after proper notation has been made thereon to show partial payment.
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Upon any Sale, whether made under the power of sale hereby given or by virtue of judicial proceedings, the receipt of the Trustee or of the Officer making a sale under judicial proceedings shall be a sufficient discharge to the purchaser or purchasers at any sale for its or their purchase money and such purchaser or purchasers shall not be obliged to see to the application thereof.
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Any such Sale, whether under any power of sale hereby given or by virtue of judicial proceedings, shall (x)Β bind the Issuer, the Co-Issuer, the Trustee, the Noteholders and the Preferred Shareholders, shall operate to divest all right, title and interest whatsoever, either at law or in equity, of each of them in and to the property sold and (y)Β be a perpetual bar, both at law and in equity, against each of them and their successors and assigns, and against any and all Persons claiming through or under them.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding any other provision of this Indenture or any other Transaction Document, none of the Advancing Agent, the Trustee or any other Secured Party, any other party to any Transaction Document or third party beneficiary of this Indenture may, prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect (including any period established pursuant to the laws of the Cayman Islands) after the payment in full of all Notes, institute against, or join any other Person in instituting against, the Issuer, the Co-Issuer or any Issuer Permitted Subsidiary any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or other proceedings under federal or State bankruptcy or similar laws of any jurisdiction.Β Nothing in this SectionΒ 5.4 shall preclude, or be deemed to stop, the Advancing Agent, the Trustee or any other Secured Party or any other party to any Transaction Document (i)Β from taking any action prior to the expiration of the aforementioned one year and one day period, or, if longer, the applicable preference period then in effect (including any period established pursuant to the laws of the Cayman Islands) period in (A)Β any case or proceeding voluntarily filed or commenced by the Issuer or the Co-Issuer or (B)Β any involuntary insolvency proceeding filed or commenced by a Person other than the Trustee or any other Secured Party or any other party to any Transaction Document, or (ii)Β from commencing against the Issuer or the Co-Issuer or any of their respective properties any legal action which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceeding.
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SectionΒ 5.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Preservation of Assets.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything to the contrary herein, if an Event of Default shall have occurred and be continuing when any of the Notes are Outstanding, the Trustee shall (except as otherwise expressly permitted or required under this Indenture) retain the Assets securing the Notes, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Assets and the Notes in accordance with the Priority of Payments and the provisions of Articles 10, 12 and 13 and shall not sell or liquidate the Assets, unless either:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee, pursuant to SectionΒ 5.5(c), determines that the anticipated proceeds of a sale or liquidation of the Assets (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in full the amounts then due and unpaid on the Notes, Company Administrative Expenses due and payable pursuant to the Priority of Payments, the Loan Obligation Manager Fees due and payable pursuant to the Priority of Payments and amounts due and payable to the Advancing Agent and the Backup Advancing Agent, in respect of unreimbursed Interest Advances and Reimbursement Interest, and the holders of a Majority of the Controlling ClassΒ agrees with such determination; or
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Holders of at least 66-2/3% of the Aggregate Outstanding Amount of each ClassΒ of Notes (each voting as a separate Class) direct, subject to the provisions of this Indenture, the sale and liquidation of all or a portion of the Assets.
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In the event of a sale of a portion of the Assets pursuant to clause (ii)Β above, the Trustee shall sell those Assets identified by requisite Noteholders pursuant to a written direction
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in form and substance satisfactory to the Trustee and all proceeds of such sale shall be distributed in the order set forth in SectionΒ 11.1(a)(iii).
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The Trustee shall give written notice of the retention of the Assets to the Issuer, the Co-Issuer, the Loan Obligation Manager and the Rating Agency.Β So long as such Event of Default is continuing, any such retention pursuant to this SectionΒ 5.5(a)Β may be rescinded at any time when the conditions specified in clause (i)Β or (ii)Β above exist.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Nothing contained in SectionΒ 5.5(a)Β shall be construed to require the Trustee to sell the Assets securing the Notes if the conditions set forth in SectionΒ 5.5(a)Β are not satisfied.Β Nothing contained in SectionΒ 5.5(a)Β shall be construed to require the Trustee to preserve the Assets securing the Notes if prohibited by applicable law.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β To assist the Trustee in determining whether the condition specified in SectionΒ 5.5(a)(i)Β exists, the Loan Obligation Manager shall obtain bid prices with respect to each Pledged Loan Obligation from two dealers (Independent of the Loan Obligation Manager and any of its Affiliates) at the time making a market in such Loan Obligations (or, if there is only one market maker, then the Loan Obligation Manager shall obtain a bid price from that market maker or, if no market maker, from a pricing service).Β The Loan Obligation Manager shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest of such bid prices for each such Pledged Loan Obligation and provide the Trustee with the results thereof.Β For the purposes of determining issues relating to the market value of any Pledged Loan Obligation and the execution of a sale or other liquidation thereof, the Trustee may, but need not, retain at the expense of the Issuer and rely on an opinion of an Independent investment banking firm of national reputation in connection with a determination (notwithstanding that such opinion will not be the basis for such determination) as to whether the condition specified in SectionΒ 5.5(a)(i)Β exists.
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The Trustee shall promptly deliver to the Noteholders a report stating the results of any determination required to be made pursuant to SectionΒ 5.5(a)(i).Β If requested by a Majority of the Controlling Class, the Trustee shall make the determinations required by SectionΒ 5.5(a)(i)Β within 30 days of such request.
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SectionΒ 5.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Trustee MayΒ Enforce Claims Without Possession of Notes.
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All rights of action and claims under this Indenture or under any of the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceeding relating thereto, and any such action or Proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust.Β Any recovery of judgment in respect of the Notes shall be applied as set forth in SectionΒ 5.7 hereof.
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In any Proceedings brought by the Trustee (and in any Proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) in respect of the Notes, the Trustee shall be held to represent all the Holders of the Notes.
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SectionΒ 5.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Application of Amounts Collected.
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Any amounts collected by the Trustee with respect to the Notes pursuant to this ArticleΒ 5 and any amounts that may then be held or thereafter received by the Trustee with respect to the Notes hereunder shall be applied subject to SectionΒ 13.1 hereof and in accordance with the Priority of Payments set forth in SectionΒ 11.1 hereof, at the date or dates fixed by the Trustee.
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SectionΒ 5.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Limitation on Suits.
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No Holder of any Notes shall have any right to institute any Proceedings, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β such Holder has previously given to the Trustee written notice of an Event of Default;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β except as otherwise provided in SectionΒ 5.9 hereof, the Holders of at least 25% of the then Aggregate Outstanding Amount of the Controlling ClassΒ shall have made written request to the Trustee to institute Proceedings in respect of such Event of Default in its own name as Trustee hereunder and such Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee for 30 days after its receipt of such notice, request and offer of indemnity has failed to institute any such Proceeding; and
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β no direction inconsistent with such written request has been given to the Trustee during such 30-day period by a Majority of the Controlling Class; it being understood and intended that no one or more Holders of Notes shall have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Notes of the same ClassΒ or to obtain or to seek to obtain priority or preference over any other Holders of the Notes of the same ClassΒ or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Notes of the same ClassΒ subject to and in accordance with SectionΒ 13.1 hereof and the Priority of Payments.
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In the event the Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Holders of the Controlling Class, each representing less than a Majority of the Controlling Class, the Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture.
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SectionΒ 5.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Unconditional Rights of Noteholders to Receive Principal and Interest.
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Notwithstanding any other provision in this Indenture (except for SectionΒ 2.7(d)Β and 2.7(m)), the Holder of any ClassΒ of Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest on such ClassΒ of Note as such
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principal, interest and other amounts become due and payable in accordance with the Priority of Payments and SectionΒ 13.1, and, subject to the provisions of Sections 5.4 and 5.8 to institute Proceedings for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder; provided, however, that the right of such Holder to institute proceedings for the enforcement of any such payment shall not be subject to the 25% threshold requirement set forth in SectionΒ 5.8(b).
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SectionΒ 5.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Restoration of Rights and Remedies.
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If the Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Noteholder, then (and in every such case) the Issuer, the Co-Issuer, the Trustee, and the Noteholder shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
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SectionΒ 5.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Rights and Remedies Cumulative.
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No right or remedy herein conferred upon or reserved to the Trustee or to the Noteholders 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.Β 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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SectionΒ 5.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Delay or Omission Not Waiver.
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No delay or omission of the Trustee or of any Noteholder 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 or a waiver of a subsequent Event of Default.Β Every right and remedy given by this ArticleΒ 5 or by law to the Trustee, or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee, or by the Noteholders, as the case may be.
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SectionΒ 5.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Control by the Controlling Class.
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Notwithstanding any other provision of this Indenture, if an Event of Default shall have occurred and be continuing when any of the Notes are Outstanding, a Majority of the Controlling ClassΒ shall have the right to cause the institution of, and direct the time, method and place of conducting, any Proceeding for any remedy available to the Trustee and for exercising any trust, right, remedy or power conferred on the Trustee in respect of the Notes; provided that:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β such direction shall not conflict with any ruleΒ of law or with this Indenture;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction; provided, however, that, subject to SectionΒ 6.1, the Trustee
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need not take any action that it determines might involve it in liability (unless the Trustee has received satisfactory indemnity against such liability as set forth below);
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall have been provided with indemnity satisfactory to it; and
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any direction to the Trustee to undertake a Sale of the Assets shall be by the Holders of Notes secured thereby representing at least 662/3% of the Aggregate Outstanding Amount of each ClassΒ of Notes.
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SectionΒ 5.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Waiver of Past Defaults.
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Prior to the time a judgment or decree for payment of the amounts due has been obtained by the Trustee, as provided in this ArticleΒ 5, a Majority of each and every ClassΒ of Notes (voting as a separate Class) may, on behalf of the Holders of all the Notes, waive any past Default in respect of the Notes and its consequences, except a Default:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the payment of principal of any Note;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the payment of interest in respect of the Controlling Class;
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in respect of a covenant or provision hereof that, under SectionΒ 8.2, cannot be modified or amended without the waiver or consent of the Holder of each Outstanding Note adversely affected thereby; or
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in respect of any covenant or provision hereof for the individual protection or benefit of the Trustee, without the Trusteeβs express written consent thereto.
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In the case of any such waiver, the Issuer, the Co-Issuer, the Trustee, and the Holders of the Notes shall be restored to their respective former positions and rights hereunder, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.Β The Trustee shall promptly give written notice of any such waiver to the Loan Obligation Manager and each Noteholder.
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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 thereto.
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SectionΒ 5.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Undertaking for Costs.
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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 in any suit against the Trustee for any action taken or omitted by it as Trustee, 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 attorneysβ fees, 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 SectionΒ 5.15 shall not apply to any suit instituted by (x)Β the
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Trustee, (y)Β any Noteholder, or group of Noteholders, holding in the aggregate more than 10% of the Aggregate Outstanding Amount of the Controlling ClassΒ or (z)Β any Noteholder for the enforcement of the payment of the principal of or interest on any Note or any other amount payable hereunder on or after the Stated Maturity Date (or, in the case of redemption, on or after the applicable Redemption Date).
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SectionΒ 5.16Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Waiver of Stay or Extension Laws.
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Each of the Issuer and the Co-Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force (including but not limited to filing a voluntary petition under Chapter 11 of the Bankruptcy Code and by the voluntary commencement of a proceeding or the filing of a petition seeking winding up, liquidation, reorganization or other relief under any bankruptcy, insolvency, reorganization, moratorium, receivership, conservatorship or other similar laws now or hereafter in effect), which may affect the covenants, the performance of or any remedies under this Indenture; and each of the Issuer and the Co-Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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SectionΒ 5.17Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Sale of Assets.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The power to effect any sale (a βSaleβ) of any portion of the Assets pursuant to Sections 5.4 and 5.5 hereof shall not be exhausted by any one or more Sales as to any portion of such Assets remaining unsold, but shall continue unimpaired until all amounts secured by the Assets shall have been paid or if there are insufficient proceeds to pay such amount until the entire Assets shall have been sold.Β The Trustee may, upon notice to the Securityholders, and shall, upon direction of a Majority of the Controlling Class, from time to time postpone any Sale by public announcement made at the time and place of such Sale; provided, however, that if the Sale is rescheduled for a date more than three Business Days after the date of the determination by the Trustee pursuant to SectionΒ 5.5(a)(i)Β hereof, such Sale shall not occur unless and until the Trustee has again made the determination required by SectionΒ 5.5(a)(i)Β hereof.Β The Trustee hereby expressly waives its rights to any amount fixed by law as compensation for any Sale; provided that the Trustee shall be authorized to deduct the reasonable costs, charges and expenses incurred by it in connection with such Sale from the proceeds thereof notwithstanding the provisions of SectionΒ 6.7 hereof.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee may bid for and acquire any portion of the Assets in connection with a public Sale thereof, and may pay all or part of the purchase price by crediting against amounts owing on the Notes or other amounts secured by the Assets, all or part of the net proceeds of such Sale after deducting the reasonable costs, charges and expenses incurred by the Trustee in connection with such Sale notwithstanding the provisions of SectionΒ 6.7 hereof.Β The Notes need not be produced in order to complete any such Sale, or in order for the net proceeds of such Sale to be credited against amounts owing on the Notes.Β The Trustee may hold, lease, operate, manage or otherwise deal with any property so acquired in any manner permitted by law in accordance with this Indenture.
Β
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If any portion of the Assets consists of securities issued without registration under the Securities Act (βUnregistered Securitiesβ), the Trustee may seek an Opinion of Counsel, or, if no such Opinion of Counsel can be obtained and with the consent of a Majority of the Controlling Class, seek a no action position from the SEC or any other relevant federal or State regulatory authorities, regarding the legality of a public or private Sale of such Unregistered Securities.Β In no event shall the Trustee be required to register Unregistered Securities under the Securities Act.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Assets in connection with a Sale thereof.Β In addition, the Trustee is hereby irrevocably appointed the agent and attorney in fact of the Issuer to transfer and convey its interest in any portion of the Assets in connection with a Sale thereof, and to take all action necessary to effect such Sale.Β No purchaser or transferee at such a Sale shall be bound to ascertain the Trusteeβs authority, to inquire into the satisfaction of any conditions precedent or to see to the application of any amounts.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In the event of any Sale of the Assets pursuant to SectionΒ 5.4 or SectionΒ 5.5, payments shall be made in the order and priority set forth in SectionΒ 11.1(a)Β in the same manner as if the Notes had been accelerated.
Β
SectionΒ 5.18Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Action on the Notes.
Β
The Trusteeβs right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the application for or obtaining of any other relief under or with respect to this Indenture.Β Neither the lien of this Indenture nor any rights or remedies of the Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Trustee against the Issuer or the Co-Issuer or by the levy of any execution under such judgment upon any portion of the Assets or upon any of the assets of the Issuer or the Co-Issuer.
Β
ARTICLEΒ 6
Β
THE TRUSTEE
Β
SectionΒ 6.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Certain Duties and Responsibilities.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Except during the continuance of an Event of Default:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee undertakes to perform such duties and only such duties as are set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in the absence of manifest error, 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; provided, however, that 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
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determine whether or not they substantially conform to the requirements of this Indenture and shall promptly, but in any event within three Business Days in the case of an Officerβs Certificate furnished by the Loan Obligation Manager, notify the party delivering the same if such certificate or opinion does not conform.Β If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall so notify the Noteholders.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In case an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Controlling ClassΒ (or other Noteholders to the extent provided in ArticleΒ 5 hereof), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such personβs own affairs.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If, in performing its duties under this Indenture, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Loan Obligation Manager as to courses of action desired by it.Β If the Trustee does not receive such instructions within two Business Days after it has requested them, it may, but shall be under no duty to, take or refrain from taking such action.Β The Trustee shall act in accordance with instructions received after such two-Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions.Β The Trustee shall be entitled to rely on the advice of legal counsel and Independent accountants in performing its duties hereunder and be deemed to have acted in good faith if it acts in accordance with such advice.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β 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:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β this subsection shall not be construed to limit the effect of SectionΒ 6.1(a);
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer in accordance with this Indenture and/or the Controlling ClassΒ relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee in respect of any Note or exercising any trust or power conferred upon the Trustee under this Indenture;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant
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to SectionΒ 11.1(a)(i)(3)Β and SectionΒ 11.1(a)(ii)(1)Β net of the amounts specified in SectionΒ 6.7(a)(i), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to its ordinary services under this Indenture, except where this Indenture provides otherwise; and
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall not be liable to the Noteholders for any action taken or omitted by it at the direction of the Issuer, the Co-Issuer, the Loan Obligation Manager, the Controlling ClassΒ and/or a Noteholder under circumstances in which such direction is required or permitted by the terms of this Indenture.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Event of Default described in SectionΒ 5.1(d), 5.1(f), 5.1(g), 5.1(h)Β or 5.1(i)Β or any Default described in SectionΒ 5.1(e)Β unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or Default is received by the Trustee at the Corporate Trust Office, and such notice references, as applicable, the Notes generally, the Issuer, the Assets or this Indenture.Β For purposes of determining the Trusteeβs responsibility and liability hereunder, whenever reference is made in this Indenture to such an Event of Default or a Default, such reference shall be construed to refer only to such an Event of Default or Default of which the Trustee is deemed to have notice as described in this SectionΒ 6.1.
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of Sections 6.1(a), (b), (c), (d)Β and (e).
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall, upon reasonable prior written notice to the Trustee, permit the Issuer, the Co-Issuer, the Loan Obligation Manager or the Rating Agency, during the Trusteeβs normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Person) and to discuss the Trusteeβs actions, as such actions relate to the Trusteeβs duties with respect to the Notes, with the Trusteeβs officers and employees responsible for carrying out the Trusteeβs duties with respect to the Notes.
Β
SectionΒ 6.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notice of Default.
Β
Promptly (and in no event later than three Business Days) after the occurrence of any Default known to the Trustee or after any declaration of acceleration has been made or delivered to the Trustee pursuant to SectionΒ 5.2, the Trustee shall transmit by mail to the Loan Obligation Manager, the Rating Agency (for so long as any ClassΒ of Notes is Outstanding and rated by the Rating Agency) and to all Holders of Notes as their names and addresses appear on the Notes Register, notice of all Defaults hereunder known to the Trustee, unless such Default shall have been cured or waived.
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SectionΒ 6.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Certain Rights of Trustee.
Β
Except as otherwise provided in SectionΒ 6.1:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β 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, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any request or direction of the Issuer or the Co-Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order, as the case may be;
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β whenever in the administration of this Indenture the Trustee shall (i)Β deem it desirable that a matter be proved or established prior to taking, suffering or omitting 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 Officerβs Certificate or (ii)Β be required to determine the value of any Assets or funds hereunder or the cash flows projected to be received therefrom, the Trustee may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other persons qualified to provide the information required to make such determination, including nationally recognized dealers in securities of the type being valued and securities quotation services;
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β as a condition to the taking or omitting of any action by it hereunder, the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel (including with respect to any matters, other than factual matters, in connection with the execution by the Trustee of a supplemental indenture pursuant to SectionΒ 8.3) shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance thereon;
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall be under no obligation to exercise or to honor any of the rights or powers vested in it by this Indenture at the request or direction of any of the Noteholders pursuant to this Indenture, unless such Noteholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might reasonably be incurred by it in compliance with such request or direction;
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β 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, note or other paper documents, but the Trustee, in its discretion, may and, upon the written direction of a Majority of the Controlling ClassΒ or of a Rating Agency, shall make such further inquiry or investigation into such facts or matters as it may see fit or as it shall be directed and shall have received indemnification reasonably acceptable to the Trustee, and, the Trustee shall be entitled, on reasonable prior notice to the Issuer, the Co-Issuer, the Loan Obligation Manager and the CLO Servicer, to examine the books and records relating to the Notes and the Assets, as applicable, at the premises of the Issuer, the Co-Issuer and the Loan Obligation Manager, personally or by agent or attorney during the Issuerβs, the Co-Issuerβs or the Loan Obligation Managerβs normal business hours upon not less than three Business Daysβ prior written notice; provided that the Trustee shall, and shall cause its
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agents to, hold in confidence all such information, except (i)Β to the extent disclosure may be required by law by any regulatory authority and (ii)Β to the extent that the Trustee, in its sole judgment, may determine that such disclosure is consistent with its obligations hereunder;
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder (except with respect to its duty to make any Interest Advance under the circumstances specified in SectionΒ 10.9) either directly or by or through agents or attorneys; provided that the Trustee shall not be responsible for any willful misconduct or negligence on the part of any agent appointed and supervised, or attorney appointed, with due care by it hereunder;
Β
(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall not be liable for any action it takes or omits to take in good faith that it reasonably and prudently believes to be authorized or within its rights or powers hereunder;
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall not be responsible for the accuracy of the books or records of, or for any acts or omissions of, the Depository, any Transfer Agent (other than the Trustee itself acting in that capacity), Clearstream, Luxembourg, Euroclear, any Calculation Agent (other than the Trustee itself acting in that capacity) or any Paying Agent (other than the Trustee itself acting in that capacity);
Β
(j)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall not be liable for the actions or omissions of the Loan Obligation Manager; and without limiting the foregoing, the Trustee shall not (except to the extent, if at all, otherwise expressly stated in this Indenture) be under any obligation to monitor, evaluate or verify compliance by the Loan Obligation Manager with the terms hereof or the Loan Obligation Management Agreement, or to verify or independently determine the accuracy of information received by it from the Loan Obligation Manager (or from any selling institution, agent bank, trustee or similar source) with respect to the Loan Obligations;
Β
(k)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the extent any defined term hereunder, or any calculation required to be made or determined by the Trustee hereunder, is dependent upon or defined by reference to generally accepted accounting principles in the United States in effect from time to time (βGAAPβ), the Trustee shall be entitled to request and receive (and rely upon) instruction from the Issuer or the accountants appointed pursuant to SectionΒ 10.12 as to the application of GAAP in such connection, in any instance; and
Β
(l)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β neither the Trustee nor the Collateral Administrator shall have any responsibility to the Issuer or the Secured Parties hereunder to make any inquiry or investigation as to, and shall have no obligation in respect of, the terms of any engagement of Independent accountants by the Issuer (or the Loan Obligation Manager on behalf of the Issuer); provided, however, that the Trustee shall be authorized, upon receipt of an Issuer Order directing the same, to execute any acknowledgement or other agreement with the Independent accountants required for the Trustee to receive any of the reports or instructions provided for herein, which acknowledgement or agreement may include, among other things, (i)Β acknowledgement that the Issuer has agreed that the βagreed upon proceduresβ between the Issuer and the Independent accountants are sufficient for its purposes, (ii)Β releases by the Trustee (on behalf of itself and the Holders) of claims and acknowledgement of other limitation of liability in favor of the Independent accounts, and (iii)Β restrictions or prohibitions on the disclosure of information or
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documents provided to it by such firm of Independent accounts (including to the Holders).Β Notwithstanding the foregoing, in no event shall the Trustee be required to execute any agreement in respect of the Independent accountants that the Trustee determines adversely affects it in its individual capacity.
Β
SectionΒ 6.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Not Responsible for Recitals or Issuance of Notes.
Β
The recitals contained herein and in the Notes, other than the Certificate of Authentication thereon, shall be taken as the statements of the Issuer and the Co-Issuer, and the Trustee assumes no responsibility for their correctness.Β The Trustee makes no representation as to the validity or sufficiency of this Indenture (except as may be made with respect to the validity of the Trusteeβs obligations hereunder), the Assets or the Notes.Β The Trustee shall not be accountable for the use or application by the Issuer or the Co-Issuer of the Notes or the proceeds thereof or any amounts paid to the Issuer or the Co-Issuer pursuant to the provisions hereof.
Β
SectionΒ 6.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β MayΒ Hold Notes.
Β
The Trustee, the Paying Agent, the Notes Registrar or any other agent of the Issuer or the Co-Issuer, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer and the Co-Issuer with the same rights it would have if it were not Trustee, Paying Agent, Notes Registrar or such other agent.
Β
SectionΒ 6.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Amounts Held in Trust.
Β
Amounts held by the Trustee hereunder shall be held in trust to the extent required herein.Β The Trustee shall be under no liability for interest on any amounts received by it hereunder except as otherwise agreed upon with the Issuer and except to the extent of income or other gain on investments which are deposits in or certificates of deposit of the Trustee in its commercial capacity and income or other gain actually received by the Trustee on Eligible Investments.
Β
SectionΒ 6.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Compensation and Reimbursement.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer agrees:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to pay the Trustee on each Payment Date in accordance with the Priority of Payments reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β except as otherwise expressly provided herein, to reimburse the Trustee (subject to any written agreement between the Issuer and the Trustee) in a timely manner upon its request for all reasonable expenses, disbursements and advances (except as otherwise provided herein with respect to Interest Advances) incurred or made by the Trustee in accordance with any provision of this Indenture (including securities transaction charges to the extent not waived due to the Trusteeβs receipt of payments from a financial institution with respect to certain Eligible Investments, as specified by the Loan Obligation Manager and the reasonable compensation and expenses and
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disbursements of its agents and legal counsel and of any accounting firm or investment banking firm employed by the Trustee pursuant to SectionΒ 5.4, 5.5, 10.11 or 10.13 hereof, except any such expense, disbursement or advance as may be attributable to its negligence, willful misconduct or bad faith);
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to indemnify the Trustee and its Officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense incurred without negligence, willful misconduct or bad faith on their part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder; and
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to pay the Trustee reasonable additional compensation together with its expenses (including reasonable counsel fees) for any collection action taken pursuant to SectionΒ 6.13 hereof.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer may remit payment for such fees and expenses to the Trustee or, in the absence thereof, the Trustee may from time to time deduct payment of its fees and expenses hereunder from amounts on deposit in the Payment Account in accordance with the Priority of Payments.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee, in its capacity as Trustee, Paying Agent, Calculation Agent, Transfer Agent, Custodial Securities Intermediary, Backup Advancing Agent and Notes Registrar, hereby agrees not to cause the filing of a petition in bankruptcy against the Issuer, the Co-Issuer or any Permitted Subsidiary until at least one year and one day (or, if longer, the applicable preference period then in effect) after the payment in full of all Notes issued under this Indenture.Β This provision shall survive termination of this Indenture.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee agrees that the payment of all amounts to which it is entitled pursuant to Sections 6.7(a)(i), (a)(ii), (a)(iii)Β and (a)(iv)Β shall be subject to the Priority of Payments, shall be payable only to the extent funds are available in accordance with such Priority of Payments, shall be payable solely from the Assets and following realization of the Assets, any such claims of the Trustee against the Issuer, and all obligations of the Issuer, shall be extinguished.Β The Trustee will have a lien upon the Assets to secure the payment of such payments to it in accordance with the Priority of Payments; provided that the Trustee shall not institute any proceeding for enforcement of such lien except in connection with an action taken pursuant to SectionΒ 5.3 hereof for enforcement of the lien of this Indenture for the benefit of the Noteholders.
Β
Fees shall be accrued on the actual number of days in the related Interest Accrual Period.Β The Trustee shall receive amounts pursuant to this SectionΒ 6.7 and SectionΒ 11.1(a)Β only to the extent that such payment is made in accordance with the Priority of Payments and the failure to pay such amounts to the Trustee will not, by itself, constitute an Event of Default.Β Subject to SectionΒ 6.9, the Trustee shall continue to serve as Trustee under this Indenture notwithstanding the fact that the Trustee shall not have received amounts due to it hereunder.Β No direction by a Majority of the Controlling ClassΒ shall affect the right of the Trustee to collect amounts owed to it under this Indenture.
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Β
If on any Payment Date when any amount shall be payable to the Trustee pursuant to this Indenture is not paid because there are insufficient funds available for the payment thereof, all or any portion of such amount not so paid shall be deferred and payable on any later Payment Date on which a fee shall be payable and sufficient funds are available therefor in accordance with the Priority of Payments.
Β
SectionΒ 6.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Corporate Trustee Required; Eligibility.
Β
There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America or of any State thereof, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least U.S.$200,000,000, subject to supervision or examination by federal or State authority, having a rating of at least βBaa1β by Xxxxxβx (or such other lower rating as may be approved by the Rating Agency from time to time) and having an office within the United States.Β If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this SectionΒ 6.8, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.Β If at any time the Trustee shall cease to be eligible in accordance with the provisions of this SectionΒ 6.8, it shall resign immediately in the manner and with the effect hereinafter specified in this ArticleΒ 6.
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SectionΒ 6.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Resignation and Removal; Appointment of Successor.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this ArticleΒ 6 shall become effective until the acceptance of appointment by the successor Trustee under SectionΒ 6.10.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee may resign at any time by giving written notice thereof to the Issuer, the Co-Issuer, the Loan Obligation Manager, the Noteholders and the Rating Agency.Β Upon receiving such notice of resignation, the Issuer and the Co-Issuer shall promptly appoint a successor trustee or trustees by written instrument, in duplicate, executed by an Authorized Officer of the Issuer and an Authorized Officer of the Co-Issuer, one copy of which shall be delivered to the Trustee so resigning and one copy to the successor Trustee or Trustees, together with a copy to each Noteholder and the Loan Obligation Manager; provided that such successor Trustee shall be appointed only upon the written consent of a Majority of the Notes (or if there are no Notes Outstanding, a Majority of Preferred Shareholders) or, at any time when an Event of Default shall have occurred and be continuing or when a successor Trustee has been appointed pursuant to SectionΒ 6.10, by Act of a Majority of the Controlling Class.Β If no successor Trustee shall have been appointed and an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee, the Controlling ClassΒ of Notes or any Holder of a Note, on behalf of himself and all others similarly situated, may petition any court of competent jurisdiction for the appointment of a successor Trustee.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee may be removed (i)Β at any time by Act of at least 66-2/3% of the Notes (or if there are no Notes Outstanding, a Majority of Preferred Shareholders) or (ii)Β at
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any time when an Event of Default shall have occurred and be continuing or when a successor Trustee has been appointed pursuant to SectionΒ 6.10, by Act of a Majority of the Controlling Class, in each case, upon written notice delivered to the Trustee and to the Issuer and the Co-Issuer.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If at any time:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall cease to be eligible under SectionΒ 6.8 and shall fail to resign after written request therefor by the Issuer, the Co-Issuer, or by any Holder; or
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall become incapable of acting or there shall be instituted any proceeding pursuant to which it could be adjudged as bankrupt or insolvent or a receiver or liquidator 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;
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then, in any such case (subject to SectionΒ 6.9(a)), (a)Β the Issuer or the Co-Issuer, by Issuer Order, may remove the Trustee or (b)Β subject to SectionΒ 5.15, a Majority of the Controlling ClassΒ or any Holder may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Trustee for any reason, the Issuer and the Co-Issuer, by Issuer Order, subject to the written consent of the Loan Obligation Manager, shall promptly appoint a successor Trustee.Β If the Issuer and the Co-Issuer shall fail to appoint a successor Trustee within 60 days after such resignation, removal or incapability or the occurrence of such vacancy, a successor Trustee may be appointed by Act of a Majority of the Controlling ClassΒ delivered to the Issuer, the Co-Issuer, the Loan Obligation Manager and the retiring Trustee.Β The successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee and supersede any successor Trustee proposed by the Issuer and the Co-Issuer.Β If no successor Trustee shall have been so appointed by the Issuer and the Co-Issuer or a Majority of the Controlling ClassΒ and shall have accepted appointment in the manner hereinafter provided, subject to SectionΒ 5.15, the Controlling ClassΒ or any Holder may, on behalf of itself or himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer and the Co-Issuer shall give prompt notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first class mail, postage prepaid, to the Rating Agency, the Preferred Shares Paying Agent, the Loan Obligation Manager and to the Holders of the Notes as their names and addresses appear in the Notes Register.Β Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office.Β If the Issuer or the Co-Issuer fail to mail such notice within ten days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be given at the expense of the Issuer or the Co-Issuer, as the case may be.
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SectionΒ 6.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Acceptance of Appointment by Successor.
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Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer, the Co-Issuer, the Loan Obligation Manager, the CLO Servicer and the retiring Trustee an instrument accepting such appointment.Β Upon delivery of the required instruments, 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, duties and obligations of the retiring Trustee; but, on request of the Issuer and the Co-Issuer or a Majority of the Controlling ClassΒ or the Loan Obligation Manager or the successor Trustee, such retiring Trustee shall, upon payment of its charges then unpaid, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and amounts held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in SectionΒ 6.7(d).Β Upon request of any such successor Trustee, the Issuer and the Co-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.
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No successor Trustee shall accept its appointment unless (a)Β at the time of such acceptance such successor shall be qualified and eligible under this ArticleΒ 6, (b)Β such successor shall have long term debt rated within the four highest rating categories by the Rating Agency, and (c)Β the Rating Agency Condition is satisfied.
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SectionΒ 6.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Merger, Conversion, Consolidation or Succession to Business of Trustee.
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Any corporation or banking association into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or banking association resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or banking association succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation or banking association shall be otherwise qualified and eligible under this ArticleΒ 6, without the execution or filing of any paper or any further act on the part of any of the parties hereto.Β In case any of the Notes have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation 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.
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SectionΒ 6.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Co-Trustees and Separate Trustee.
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At any time or times, including for the purpose of meeting the legal requirements of any jurisdiction in which any part of the Assets may at the time be located, the Issuer, the Co-Issuer and the Trustee shall have power to appoint, one or more Persons to act as co-trustee jointly with the Trustee of all or any part of the Assets, with the power to file such proofs of claim and take such other actions pursuant to SectionΒ 5.6 herein and to make such claims and enforce such rights of action on behalf of the Holders of the Notes as such Holders themselves may have the right to do, subject to the other provisions of this SectionΒ 6.12.
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Each of the Issuer and the Co-Issuer shall join with the Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to appoint a co-trustee.Β If the Issuer and the Co-Issuer do not both join in such appointment within 15 days after the receipt by them of a request to do so, the Trustee shall have power to make such appointment.
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Should any written instrument from the Issuer or the Co-Issuer be required by any co-trustee, so appointed, more fully confirming to such co-trustee such property, title, right or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Issuer or the Co-Issuer, as the case may be.Β The Issuer agrees to pay (but only from and to the extent of the Assets) to the extent funds are available therefor under the Priority of Payments, for any reasonable fees and expenses in connection with such appointment.
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Every co-trustee, shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Notes shall be authenticated and delivered and all rights, powers, duties and obligations hereunder in respect of the custody of securities, Xxxx and other personal property held by, or required to be deposited or pledged with, the Trustee hereunder, shall be exercised solely by the Trustee;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the rights, powers, duties and obligations hereby conferred or imposed upon the Trustee in respect of any property covered by the appointment of a co-trustee shall be conferred or imposed upon and exercised or performed by the Trustee or by the Trustee and such co-trustee jointly in the case of the appointment of a co-trustee as shall be provided in the instrument appointing such co-trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the 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 a co-trustee;
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee at any time, by an instrument in writing executed by it, with the concurrence of the Issuer and the Co-Issuer evidenced by an Issuer Order, may accept the resignation of, or remove, any co-trustee appointed under this SectionΒ 6.12, and in case an Event of Default has occurred and is continuing, the Trustee shall have the power to accept the resignation of, or remove, any such co-trustee without the concurrence of the Issuer or the Co-Issuer.Β A successor to any co-trustee so resigned or removed may be appointed in the manner provided in this SectionΒ 6.12;
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β no co-trustee hereunder shall be personally liable by reason of any act or omission of the Trustee hereunder;
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee shall not be liable by reason of any act or omission of a co-trustee; and
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any Act of Securityholders delivered to the Trustee shall be deemed to have been delivered to each co-trustee.
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SectionΒ 6.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Certain Duties of Trustee Related to Delayed Payment of Proceeds.
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In the event that in any month the Trustee shall not have received a Scheduled Distribution, (a)Β the Trustee shall promptly notify the Issuer and the Loan Obligation Manager in writing and (b)Β unless within three Business Days (or the end of the applicable grace period for such payment, if longer) after such notice such payment shall have been received by the Trustee, or the Issuer, in its absolute discretion (but only to the extent permitted by SectionΒ 10.2(a)), shall have made provision for such payment satisfactory to the Trustee in accordance with SectionΒ 10.2(a), the Trustee shall request the obligor of such Asset, the trustee under the related Underlying Instrument or paying agent designated by either of them, as the case may be, to make such payment as soon as practicable after such request but in no event later than three Business Days after the date of such request.Β In the event that such payment is not made within such time period, the Trustee, subject to the provisions of SectionΒ 6.1(d)(iv), shall take such action as the Loan Obligation Manager reasonably shall direct in writing.Β Any such action shall be without prejudice to any right to claim a Default or Event of Default under this Indenture.Β In the event that the Issuer or the Loan Obligation Manager requests a release of an Asset in connection with any such action under the Loan Obligation Management Agreement, such release shall be subject to SectionΒ 10.12 and ArticleΒ 12 of this Indenture, as the case may be.Β Notwithstanding any other provision hereof, the Trustee shall deliver to the Issuer or its designee any payment with respect to any Asset received after the Due Date thereof to the extent the Issuer previously made provisions for such payment satisfactory to the Trustee in accordance with this SectionΒ 6.13 and such payment shall not be deemed part of the Assets.
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SectionΒ 6.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Representations and Warranties of the Trustee.
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The Trustee represents and warrants that:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee is a national banking association with trust powers, duly and validly existing under the laws of the United States of America, with corporate power and authority to execute, deliver and perform its obligations under this Indenture, and is duly eligible and qualified to act as trustee under this Indenture;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β this Indenture has been duly authorized, executed and delivered by the Trustee and constitutes the valid and binding obligation of the Trustee, enforceable against it in accordance with its terms except (i)Β as limited by bankruptcy, fraudulent conveyance, fraudulent transfer, insolvency, reorganization, liquidation, receivership, moratorium or other similar laws now or hereafter in effect relating to creditorsβ rights generally and by general equitable principles, regardless of whether considered in a proceeding in equity or at law, and (ii)Β that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought;
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β neither the execution or delivery by the Trustee of this Indenture nor the performance by the Trustee of its obligations under this Indenture requires the consent or approval of, the giving of notice to or the registration or filing with, any governmental authority or agency under any existing law of the United States of America governing the banking or trust powers of the Trustee;
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β neither the execution, delivery and performance of this Indenture, nor the consummation of the transactions contemplated by this Indenture, (i)Β is prohibited by, or requires the Trustee to obtain any consent, authorization, approval or registration under, any law, statute, rule, regulation, or any judgment, order, writ, injunction or decree that is binding upon the Trustee or any of its properties or assets, (ii)Β will violate the provisions of the Governing Documents of the Trustee or (iii)Β will violate any provision of, result in any default or acceleration of any obligations under, result in the creation or imposition of any lien pursuant to, or require any consent under, any material agreement to which the Trustee is a party or by which it or any of its property is bound, the violation of which would have a material adverse effect on the Trustee or its property; and
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β there are no proceedings pending or, to the best knowledge of the Trustee, threatened against the Trustee before any Federal, state or other governmental agency, authority, administrator or regulatory body, arbitrator, court or other tribunal, foreign or domestic, which could have a material adverse effect on the Assets or the performance by the Trustee of its obligations under this Indenture.
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SectionΒ 6.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Requests for Consents.
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In the event that the Trustee receives written notice of any proposed amendment, consent or waiver under the Underlying Instruments of any Loan Obligation (before or after any default) or in the event any action is required to be taken in respect to an Underlying Instrument, the Trustee shall promptly contact the Issuer and the Loan Obligation Manager.Β The Loan Obligation Manager may, on behalf of the Issuer, instruct the Trustee pursuant to an Issuer Order to, and the Trustee shall, with respect to which a Loan Obligation as to which a consent or waiver under the Underlying Instruments of such Loan Obligation (before or after any default) has been proposed or with respect to action required to be taken in respect of an Underlying Instrument, give consent, grant a waiver, vote or exercise any or all other rights or remedies with respect to any such Loan Obligation in accordance with such Issuer Order.Β In the absence of any instruction from the Loan Obligation Manager, the Trustee shall not engage in any vote or take any action with respect to such a Loan Obligation.
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SectionΒ 6.16Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Withholding.
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If any amount is required to be deducted or withheld from any payment to any Noteholder, such amount shall reduce the amount otherwise distributable to such Noteholder.Β The Trustee is hereby authorized to withhold or deduct from amounts otherwise distributable to any Noteholder sufficient funds for the payment of any tax that is legally required to be withheld or deducted (but such authorization shall not prevent the Trustee from contesting any such tax in appropriate proceedings and legally withholding payment of such tax, pending the outcome of such proceedings).Β The amount of any withholding tax imposed with respect to any Noteholder shall be treated as Cash distributed to such Noteholder at the time it is deducted or withheld by the Issuer or the Trustee, as applicable, and remitted to the appropriate taxing authority.Β If there is a possibility that withholding tax is payable with respect to a distribution, the Trustee may in its sole discretion withhold such amounts in accordance with this SectionΒ 6.16.Β If any Noteholder wishes to apply for a refund of any such withholding tax, the Trustee shall reasonably cooperate with such Noteholder in making such claim so long as such Noteholder
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agrees to reimburse the Trustee for any out-of-pocket expenses incurred.Β Nothing herein shall impose an obligation on the part of the Trustee to determine the amount of any tax or withholding obligation on the part of the Issuer or in respect of the Notes.
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ARTICLEΒ 7
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COVENANTS
Β
SectionΒ 7.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Payment of Principal and Interest.
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The Issuer and the Co-Issuer shall duly and punctually pay the principal of and interest on each ClassΒ of Notes in accordance with the terms of such Notes and this Indenture. Amounts properly withheld under the Code or other applicable law by any Person from a payment to any Noteholder of interest and/or principal shall be considered as having been paid by the Issuer and the Co-Issuer, and, with respect to the Preferred Shares, by the Issuer, to such Preferred Shareholder for all purposes of this Indenture.
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The Trustee shall, unless prevented from doing so for reasons beyond its reasonable control, give notice to each Securityholder of any such withholding requirement no later than ten days prior to the related Payment Date from which amounts are required (as directed by the Issuer (or the Loan Obligation Manager on behalf of the Issuer)) to be withheld, provided that, despite the failure of the Trustee to give such notice, amounts withheld pursuant to applicable tax laws shall be considered as having been paid by the Issuer and the Co-Issuer, as provided above.
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SectionΒ 7.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Maintenance of Office or Agency.
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The Issuer and the Co-Issuer hereby appoint the Trustee as a Paying Agent for the payment of principal of and interest on the Notes and where Notes may be surrendered for registration of transfer or exchange and the Issuer and the Co-Issuer hereby appoint CT Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as their agent where notices and demands to or upon the Co-Issuer in respect of the Notes or this Indenture, or the Issuer in respect of the Notes or this Indenture, may be served.
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The Issuer or the Co-Issuer may at any time and from time to time vary or terminate the appointment of any such agent or appoint any additional agents for any or all of such purposes; provided, however, that the Issuer and the Co-Issuer, if applicable, will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices and demands to or upon the Issuer and the Co-Issuer in respect of the Notes and this Indenture may be served, and, subject to any laws or regulations applicable thereto, an office or agency outside of the United States where Notes may be presented and surrendered for payment; provided, further, that no paying agent shall be appointed in a jurisdiction which subjects payments on the Notes to withholding tax. The Issuer or the Co-Issuer, as the case may be, shall give prompt written notice to the Trustee, the Rating Agency and the Noteholders of the appointment or termination of any such agent and of the location and any change in the location of any such office or agency.
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If at any time the Issuer and the Co-Issuer, if applicable, shall fail to maintain any such required office or agency in the Borough of Manhattan, The City of New York, or outside the United States, or shall fail to furnish the Trustee with the address thereof, presentations and surrenders may be made (subject to the limitations described in the preceding paragraph) at and notices and demands may be served on the Issuer and the Co-Issuer, and Notes may be presented and surrendered for payment to the appropriate Paying Agent at its main office and the Issuer and the Co-Issuer hereby appoint the same as their agent to receive such respective presentations, surrenders, notices and demands.
Β
SectionΒ 7.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Amounts for Note Payments to be Held in Trust.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β All payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Payment Account shall be made on behalf of the Issuer and the Co-Issuer by the Trustee or a Paying Agent (in each case, from and to the extent of available funds in the Payment Account and subject to the Priority of Payments) with respect to payments on the Notes.
Β
When the Paying Agent is not also the Notes Registrar, the Issuer and the Co-Issuer shall furnish, or cause the Notes Registrar to furnish, no later than the fifth calendar day after each Record Date a list, if necessary, in such form as such Paying Agent may reasonably request, of the names and addresses of the Holders of Notes and of the certificate numbers of individual Notes held by each such Holder.
Β
Whenever the Paying Agent is not also the Trustee, the Issuer, the Co-Issuer, and such Paying Agent shall, on or before the Business Day next preceding each Payment Date or Redemption Date, as the case may be, direct the Trustee to deposit on such Payment Date with such Paying Agent, if necessary, an aggregate sum sufficient to pay the amounts then becoming due pursuant to the terms of this Indenture (to the extent funds are then available for such purpose in the Payment Account, and subject to the Priority of Payments), such sum to be held for the benefit of the Persons entitled thereto and (unless such Paying Agent is the Trustee) the Issuer and the Co-Issuer shall promptly notify the Trustee of its action or failure so to act. Any amounts deposited with a Paying Agent (other than the Trustee) in excess of an amount sufficient to pay the amounts then becoming due on the Notes with respect to which such deposit was made shall be paid over by such Paying Agent to the Trustee for application in accordance with ArticleΒ 11.Β Any such Paying Agent shall be deemed to agree by assuming such role not to cause the filing of a petition in bankruptcy against the Issuer, the Co-Issuer or any Permitted Subsidiary for the non-payment to the Paying Agent of any amounts payable thereto until at least one year and one day (or, if longer, the applicable preference period then in effect) after the payment in full of all Notes issued under this Indenture.
Β
The initial Paying Agent shall be as set forth in SectionΒ 7.2. Any additional or successor Paying Agents shall be appointed by Issuer Order of the Issuer and Issuer Order of the Co-Issuer with written notice thereof to the Trustee; provided, however, that so long as any ClassΒ of the Notes are rated by a Rating Agency and with respect to any additional or successor Paying Agent for the Notes, either (i)Β such Paying Agent has a long-term debt rating of βAa3β or higher by Xxxxxβx, βAA-βor higher by Fitch and βAA-β or higher by S&P or a short-term debt rating of βP-1β by Xxxxxβx, βF1+β by Fitch and βA-1+β by S&P or (ii)Β the Rating Agency confirms that
Β
Β
employing such Paying Agent shall not adversely affect the then-current ratings of the Notes.Β In the event that such successor Paying Agent ceases to have a long-term debt rating of βAa3β or higher by Xxxxxβx, βAA-βor higher by Fitch or βAA-β or higher by S&P or a short-term debt rating of at leastΒ βP-1β by Xxxxxβx, βF1+β by Fitch and βA-1+β by S&P, the Issuer and the Co-Issuer shall promptly remove such Paying Agent and appoint a successor Paying Agent. The Issuer and the Co-Issuer shall not appoint any Paying Agent that is not, at the time of such appointment, a depository institution or trust company subject to supervision and examination by federal and/or state and/or national banking authorities. The Issuer and the Co-Issuer shall cause the Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee (and if the Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of this SectionΒ 7.3, that such Paying Agent will:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β allocate all sums received for payment to the Holders of Notes for which it acts as Paying Agent on each Payment Date and Redemption Date among such Holders in the proportion specified in the applicable report or Redemption Date Statement, as the case may be, in each case to the extent permitted by applicable law;
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β hold all sums held by it for the payment of amounts due with respect to the Notes for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if such Paying Agent is not the Trustee, immediately resign as a Paying Agent and forthwith pay to the Trustee all sums held by it for the payment of Notes if at any time it ceases to meet the standards set forth above required to be met by a Paying Agent at the time of its appointment;
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if such Paying Agent is not the Trustee, immediately give the Trustee notice of any Default by the Issuer or the Co-Issuer (or any other obligor upon the Notes) in the making of any payment required to be made; and
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if such Paying Agent is not the Trustee at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held by such Paying Agent.
Β
The Issuer or the Co-Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct the Paying Agent to pay, to the Trustee all sums held by the Issuer or the Co-Issuer or held by the Paying Agent for payment of the Notes, such sums to be held by the Trustee in trust for the same Noteholders as those upon which such sums were held by the Issuer, the Co-Issuer or the Paying Agent; and, upon such payment by the Paying Agent to the Trustee, the Paying Agent shall be released from all further liability with respect to such amounts.
Β
Except as otherwise required by applicable law, any amounts deposited with the Trustee in trust or deposited with the Paying Agent for the payment of the principal of or interest on any Note and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to the Issuer; and the Holder of such Note shall thereafter, as an
Β
Β
unsecured general creditor, look only to the Issuer for payment of such amounts and all liability of the Trustee or the Paying Agent with respect to such amounts (but only to the extent of the amounts so paid to the Issuer or the Co-Issuer, as applicable) shall thereupon cease. The Trustee or the Paying Agent, before being required to make any such release of payment, may, but shall not be required to, adopt and employ, at the expense of the Issuer or the Co-Issuer, as the case may be, any reasonable means of notification of such release of payment, including, but not limited to, mailing notice of such release to Holders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in amounts due and payable but not claimed is determinable from the records of the Paying Agent, at the last address of record of each such Holder.
Β
SectionΒ 7.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Existence of the Issuer and Co-Issuer.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β So long as any Note is Outstanding, the Issuer shall, to the maximum extent permitted by applicable law, maintain in full force and effect its existence and rights as an exempted company incorporated with limited liability under the laws of the Cayman Islands and shall obtain and preserve its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture, the Notes or any of the Assets; provided that the Issuer shall be entitled to change its jurisdiction of registration from the Cayman Islands to any other jurisdiction reasonably selected by the Issuer so long as (i)Β such change is not disadvantageous in any material respect to the Holders of the Notes or the Preferred Shares, (ii)Β written notice of such change shall have been given by the Trustee to the Holders of the Notes or Preferred Shares, the Preferred Shares Paying Agent and the Rating Agency 15 Business Days prior to such change and (iii)Β on or prior to the 15th Business Day following such notice the Trustee shall not have received written notice from a Majority of the Controlling ClassΒ or a Majority of Preferred Shareholders objecting to such change.Β So long as any Note is Outstanding, the Issuer will maintain at all times at least one director who is Independent of the Loan Obligation Manager and its Affiliates.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β So long as any Note is Outstanding, the Co-Issuer shall maintain in full force and effect its existence and rights as a limited liability company organized under the laws of Delaware and shall obtain and preserve its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualifications are or shall be necessary to protect the validity and enforceability of this Indenture or the Notes; provided, however, that the Co-Issuer shall be entitled to change its jurisdiction of formation from Delaware to any other jurisdiction reasonably selected by the Co-Issuer so long as (i)Β such change is not disadvantageous in any material respect to the Holders of the Notes, (ii)Β written notice of such change shall have been given by the Trustee to the Holders of the Notes and the Rating Agency 15 Business Days prior to such change and (iii)Β on or prior to the 15th Business Day following such notice the Trustee shall not have received written notice from a Majority of the Controlling ClassΒ objecting to such change.Β So long as any Note is Outstanding, the Co-Issuer shall maintain at all times at least one manager who is Independent of the Loan Obligation Manager and its Affiliates.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β So long as any Note is Outstanding, the Issuer shall ensure that all corporate or other formalities regarding its existence are followed (including correcting any
Β
Β
known misunderstanding regarding its separate existence).Β So long as any Note is Outstanding, the Issuer shall not take any action or conduct its affairs in a manner that is likely to result in its separate existence being ignored or its assets and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding.Β So long as any Note is Outstanding, the Issuer shall maintain and implement administrative and operating procedures reasonably necessary in the performance of the Issuerβs obligations hereunder, and the Issuer shall at all times keep and maintain, or cause to be kept and maintained, separate books, records, accounts and other information customarily maintained for the performance of the Issuerβs obligations hereunder.Β Without limiting the foregoing, so long as any Note is Outstanding, (i)Β the Issuer shall (A)Β pay its own liabilities only out of its own funds and (B)Β use separate stationery, invoices and checks, (C)Β hold itself out and identify itself as a separate and distinct entity under its own name and (ii)Β the Issuer shall not (A)Β have any subsidiaries (other than a Permitted Subsidiary and, in the case of the Issuer, the Co-Issuer), (B)Β have any employees (other than its directors), (C)Β engage in any transaction with any shareholder that is not permitted under the terms of the Loan Obligation Management Agreement, (D)Β pay dividends other than in accordance with the terms of this Indenture, its governing documents and the Preferred Share Paying Agency Agreement, (E)Β conduct business under an assumed name (i.e., no βDBAsβ), (F)Β commingle its funds or assets with those of any other Person, or (G)Β enter into any contract or agreement with any of its Affiliates, except upon terms and conditions that are commercially reasonable and substantially similar to those available in armβs-length transactions; provided that the foregoing shall not prohibit the Issuer from entering into the transactions contemplated by the Registered Office Agreement with the registered office provider, the Company Administration Agreement with the Company Administrator, the Preferred Share Paying Agency Agreement with the Share Registrar and any other agreement contemplated or permitted by the Loan Obligation Management Agreement or this Indenture.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β So long as any Note is Outstanding, the Co-Issuer shall ensure that all limited liability company or other formalities regarding its existence are followed, as well as correcting any known misunderstanding regarding its separate existence.Β The Co-Issuer shall not take any action or conduct its affairs in a manner, that is likely to result in its separate existence being ignored or its assets and liabilities being substantively consolidated with any other Person in a bankruptcy, reorganization or other insolvency proceeding.Β The Co-Issuer shall maintain and implement administrative and operating procedures reasonably necessary in the performance of the Co-Issuerβs obligations hereunder, and the Co-Issuer shall at all times keep and maintain, or cause to be kept and maintained, books, records, accounts and other information customarily maintained for the performance of the Co-Issuerβs obligations hereunder.Β Without limiting the foregoing, the Co-Issuer shall not (A)Β have any subsidiaries, (B)Β have any employees (other than its managers), (C)Β join in any transaction with any member that is not permitted under the terms of the Loan Obligation Management Agreement, (D)Β pay dividends other than in accordance with the terms of this Indenture, (E)Β commingle its funds or assets with those of any other Person, or (F)Β enter into any contract or agreement with any of its Affiliates, except upon terms and conditions that are commercially reasonable and substantially similar to those available in armβs-length transactions with an unrelated party.
Β
Β
SectionΒ 7.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Protection of Assets.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee, on behalf of the Issuer, pursuant to any Opinion of Counsel received pursuant to SectionΒ 7.5(d)Β shall execute and deliver all such Financing Statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action as may be necessary or advisable or desirable to secure the rights and remedies of the Holders and to:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Grant more effectively all or any portion of the Assets;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β maintain or preserve the lien (and the priority thereof) of this Indenture or to carry out more effectively the purposes hereof;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture (including, without limitation, any and all actions necessary or desirable as a result of changes in law or regulations);
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β enforce any of the Assets or other instruments or property included in the Assets;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β preserve and defend title to the Assets and the rights of the Trustee, the Holders of the Notes in the Assets against the claims of all persons and parties; and
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β pursuant to Sections 11.1(a)(i)(1)Β and 11.1(a)(ii)(1), pay or cause to be paid any and all taxes levied or assessed upon all or any part of the Assets.
Β
The Issuer hereby designates the Trustee as its agent and attorney-in-fact to execute any Financing Statement, continuation statement or other instrument required pursuant to this SectionΒ 7.5.Β The Trustee agrees that it will from time to time execute and cause to be filed Financing Statements and continuation statements (it being understood that the Trustee shall be entitled to rely upon an Opinion of Counsel described in SectionΒ 7.5(d), at the expense of the Issuer, as to the need to file such Financing Statements and continuation statements, the dates by which such filings are required to be made and the jurisdictions in which such filings are required to be made).
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall not (except in accordance with SectionΒ 10.12(a), (b)Β or (c)Β and except for payments, deliveries and distributions otherwise expressly permitted under this Indenture) (i)Β remove any portion of the Assets that consists of Cash or is evidenced by an instrument, certificate or other writing (A)Β from the jurisdiction in which it was held at the date as described in the Opinion of Counsel delivered at the Closing Date pursuant to SectionΒ 3.1(d)Β or (B)Β from the possession of the Person who held it on such date or (ii)Β cause or permit the Custodial Account or the Custodial Securities Intermediary to be located in a different jurisdiction from the jurisdiction in which such securities accounts and Custodial Securities Intermediary were located on the Closing Date, unless the Trustee shall have first received an Opinion of Counsel to the effect that the lien and security interest created by this Indenture with respect to such property will continue to be maintained after giving effect to such action or actions.
Β
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer shall (i)Β pay or cause to be paid taxes, if any, levied on account of the beneficial ownership by the Issuer of any Assets that secure the Notes and timely file all tax returns and information statements as required, and (ii)Β if required to prevent the withholding or imposition of United States income tax, deliver or cause to be delivered a United States Internal Revenue Service FormΒ W-9 (or the applicable form W-8, if appropriate) or successor applicable form, to each borrower, counterparty or paying agent with respect to (as applicable) an item included in the Assets at the time such item is purchased or entered into and thereafter prior to the expiration or obsolescence of such form.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β For so long as the Notes are Outstanding, (i)Β on DecemberΒ 31, 2013 and (ii)Β every 60 months after such date, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall deliver to the Trustee for the benefit of the Trustee, the Loan Obligation Manager and the Rating Agency, at the expense of the Issuer, an Opinion of Counsel stating what is required, in the opinion of such counsel, as of the date of such opinion, to maintain the lien and security interest created by this Indenture with respect to the Assets, and confirming the matters set forth in the Opinion of Counsel, furnished pursuant to SectionΒ 3.1(d), with regard to the perfection and priority of such security interest (and such Opinion of Counsel may likewise be subject to qualifications and assumptions similar to those set forth in the Opinion of Counsel delivered pursuant to SectionΒ 3.1(d)).
Β
SectionΒ 7.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notice of Any Amendments.
Β
Each of the Issuer and the Co-Issuer shall give notice to the Rating Agency of, and satisfy the Rating Agency Condition with respect to, any amendments to its Governing Documents.
Β
SectionΒ 7.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Performance of Obligations.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each of the Issuer and the Co-Issuer shall not take any action, and will use commercially reasonable efforts not to permit any action to be taken by others, that would release any Person from any of such Personβs covenants or obligations under any instrument included in the Assets, except in the case of enforcement action taken with respect to any Defaulted Obligation in accordance with the provisions hereof and as otherwise required hereby.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer or the Co-Issuer may, with the prior written consent of the Majority of the Notes (or if there are no Notes Outstanding, a Majority of Preferred Shareholders), contract with other Persons, including the Loan Obligation Manager or the Trustee, for the performance of actions and obligations to be performed by the Issuer or the Co-Issuer, as the case may be, hereunder by such Persons and the performance of the actions and other obligations with respect to the Assets of the nature set forth in the Loan Obligation Management Agreement by the Loan Obligation Manager. Notwithstanding any such arrangement, the Issuer or the Co-Issuer, as the case may be, shall remain primarily liable with respect thereto. In the event of such contract, the performance of such actions and obligations by such Persons shall be deemed to be performance of such actions and obligations by the Issuer or the Co-Issuer; and the Issuer or the Co-Issuer shall punctually perform, and use commercially reasonable efforts to cause the Loan Obligation Manager or such other Person to perform, all of
Β
Β
their obligations and agreements contained in the Loan Obligation Management Agreement or such other agreement.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Unless the Rating Agency Condition is satisfied with respect thereto, the Issuer shall maintain the Servicing Agreement in full force and effect so long as any Notes remain Outstanding and shall not terminate the Servicing Agreement with respect to any Loan Obligation except upon the sale or other liquidation of such Loan Obligation in accordance with the terms and conditions of this Indenture.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If the Co-Issuers receive a notice from the Rating Agency stating that they are not in compliance with RuleΒ 17g-5, the Co-Issuers shall take such action as mutually agreed between the Co-Issuers and the Rating Agency in order to comply with RuleΒ 17g-5.
Β
SectionΒ 7.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Negative Covenants.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer and the Co-Issuer shall not:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β sell, assign, participate, transfer, exchange or otherwise dispose of, or pledge, mortgage, hypothecate or otherwise encumber (or permit such to occur or suffer such to exist), any part of the Assets, except as otherwise expressly permitted by this Indenture or the Loan Obligation Management Agreement;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β claim any credit on, make any deduction from, or dispute the enforceability of, the payment of the principal or interest payable in respect of the Notes (other than amounts required to be paid, deducted or withheld in accordance with any applicable law or regulation of any governmental authority) or assert any claim against any present or future Noteholder by reason of the payment of any taxes levied or assessed upon any part of the Assets;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (A)Β incur or assume or guarantee any indebtedness, other than the Notes and this Indenture and the transactions contemplated hereby; (B)Β issue any additional class of securities, other than the Notes, the Preferred Shares, the ordinary shares of the Issuer and the limited liability company membership interests of the Co-Issuer; or (C)Β issue any additional shares of stock, other than the ordinary shares of the Issuer and the Preferred Shares;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (A)Β permit the validity or effectiveness of this Indenture or any Grant hereunder to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to this Indenture or the Notes, except as may be expressly permitted hereby; (B)Β permit any lien, charge, adverse claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Assets or any part thereof, any interest therein or the proceeds thereof, except as may be expressly permitted hereby; or (C)Β take any action that would permit the lien of this Indenture not to constitute a valid first priority security interest in the Assets, except as may be expressly permitted hereby;
Β
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β amend the Loan Obligation Management Agreement, except pursuant to the terms thereof;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β amend the Preferred Share Paying Agency Agreement, except pursuant to the terms thereof;
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the maximum extent permitted by applicable law, dissolve or liquidate in whole or in part, except as permitted hereunder;
Β
(viii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β make or incur any capital expenditures, except as reasonably required to perform its functions in accordance with the terms of this Indenture and, in the case of the Issuer, the Preferred Share Paying Agency Agreement;
Β
(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β become liable in any way, whether directly or by assignment or as a guarantor or other surety, for the obligations of the lessee under any lease, hire any employees or pay any dividends to its shareholders, except with respect to the Preferred Shares in accordance with the Priority of Payments;
Β
(x)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β maintain any bank accounts other than the Accounts and the bank account in the Cayman Islands in which (inter alia) the proceeds of the Issuerβs issued share capital and the transaction fees paid to the Issuer for agreeing to issue the Securities will be kept;
Β
(xi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β conduct business under an assumed name, or change its name without first delivering at least 30 daysβ prior written notice to the Trustee, the Noteholders and the Rating Agency and an Opinion of Counsel to the effect that such name change will not adversely affect the security interest hereunder of the Trustee or the Secured Parties;
Β
(xii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β take any action that would result in it failing to qualify as a Qualified REIT Subsidiary of the Arbor Parent for federal income tax purposes (including, but not limited to, an election to treat the Issuer as a βtaxable REIT subsidiary,β as defined in SectionΒ 856(l)Β of the Code), unless (A)Β based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary of a REIT other than Arbor Parent, or (B)Β based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that is not engaged in a trade or business in the United States for U.S. federal income tax purposes;
Β
(xiii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β except for any agreements involving the purchase and sale of Loan Obligations having customary purchase or sale terms and documented with customary loan trading documentation, enter into any agreements unless such agreements contain βnon-petitionβ and βlimited recourseβ provisions;
Β
(xiv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β amend their respective organizational documents without satisfaction of the Rating Agency Condition in connection therewith; or
Β
(xv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β with respect to any Loan Obligation that by its terms permits the conversion from a LIBOR-based interest rate to a fixed interest rate, convert such Loan Obligation from a LIBOR-based interest rate to a fixed interest rate.
Β
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Neither the Issuer nor the Trustee shall sell, transfer, exchange or otherwise dispose of Assets, or enter into or engage in any business with respect to any part of the Assets, except as expressly permitted or required by this Indenture or the Loan Obligation Management Agreement.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Co-Issuer shall not invest any of its assets in βsecuritiesβ (as such term is defined in the 1940 Act) and shall keep all of the Co-Issuerβs assets in Cash.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β For so long as any of the Notes are Outstanding, the Co-Issuer shall not issue any limited liability company membership interests of the Co-Issuer to any Person other than the Arbor Parent or a wholly-owned subsidiary of the Arbor Parent.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer shall not enter into any material new agreements (other than any Loan Obligation, Loan Obligation Purchase Agreement or other agreement (including, without limitation, in connection with the sale of Assets by the Issuer) contemplated by this Indenture) without the prior written consent of the Holders of a Majority of the Notes (or if there are no Notes Outstanding, a Majority of Preferred Shareholders) and shall provide notice of all new agreements (other than any Loan Obligation or other agreement specifically contemplated by this Indenture) to the Holders of the Notes.Β The foregoing notwithstanding, the Issuer may agree to any material new agreements; provided that (i)Β the Issuer (or the Loan Obligation Manager on behalf of the Issuer) determines that such new agreements would not, upon or after becoming effective, adversely affect the rights or interests of any ClassΒ or Classes of Noteholders and (ii)Β subject to satisfaction of the Rating Agency Condition.
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β As long as any Note is Outstanding, ARMS Equity may not transfer the Preferred Shares or ordinary shares of the Issuer to any other Person (except to an affiliate that is wholly-owned by the Arbor Parent and is disregarded for U.S. federal income tax purposes) unless the Issuer receives an opinion of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP or another nationally recognized tax counsel experienced in such matters that such transfer will not cause the Issuer to be treated as a foreign corporation engaged in a trade or business in the United States for federal income tax purposes, or has previously received an opinion of Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP or another nationally recognized tax counsel experienced in such matters that the Issuer will be treated as a foreign corporation that is not engaged in a trade or business in the United States for federal income tax purposes.
Β
SectionΒ 7.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Statement as to Compliance.
Β
On or before JanuaryΒ 31, in each calendar year, commencing in 2013 or immediately if there has been a Default in the fulfillment of an obligation under this Indenture, the Issuer shall deliver to the Trustee (which will deliver a copy to the Rating Agency) an Officerβs Certificate given on behalf of the Issuer and without personal liability stating, as to each signer thereof, that, since the date of the last certificate or, in the case of the first certificate, the Closing Date, to the best of the knowledge, information and belief of such Officer, the Issuer has fulfilled all of its obligations under this Indenture or, if there has been a Default in the fulfillment of any such obligation, specifying each such Default known to them and the nature and status thereof.
Β
Β
SectionΒ 7.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Issuer and Co-Issuer MayΒ Consolidate or Merge Only on Certain Terms.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless permitted by the Governing Documents and Cayman Islands law and unless:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer shall be the surviving entity, or the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred shall be an entity organized and existing under the laws of the Cayman Islands or such other jurisdiction approved by a Majority of each and every ClassΒ of the Notes (each voting as a separate Class), and a Majority of Preferred Shareholders; provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of registration pursuant to SectionΒ 7.4 hereof; and provided, further, that the surviving entity shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and each Noteholder, the due and punctual payment of the principal of and interest on all Notes and other amounts payable hereunder and under the Loan Obligation Management Agreement and the performance and observance of every covenant of this Indenture and the Loan Obligation Management Agreement on the part of the Issuer to be performed or observed, all as provided herein;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Rating Agency Condition shall be satisfied;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred shall have agreed with the Trustee (A)Β to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Issuer with respect to its Affiliates and (B)Β not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of the Assets or all or substantially all of its assets to any other Person except in accordance with the provisions of this SectionΒ 7.10, unless in connection with a sale of the Assets pursuant to ArticleΒ 5, ArticleΒ 9 or ArticleΒ 12;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if the Issuer is not the surviving entity, the Person formed by such consolidation or into which the Issuer is merged or to which all or substantially all of the assets of the Issuer are transferred shall have delivered to the Trustee, the Loan Obligation Manager and the Rating Agency an Officerβs Certificate and an Opinion of Counsel each stating that such Person is duly organized, validly existing and in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in SectionΒ 7.10(a)(i)Β above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy,
Β
Β
reorganization, insolvency, moratorium and other laws affecting the enforcement of creditorsβ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); that, immediately following the event which causes such Person to become the successor to the Issuer, (A)Β such Person has good and marketable title, free and clear of any lien, security interest or charge, other than the lien and security interest of this Indenture, to the Assets securing, in the case of a consolidation or merger of the Issuer, all of the Notes or, in the case of any transfer or conveyance of the Assets securing any of the Notes, such Notes, (B)Β the Trustee continues to have a valid perfected first priority security interest in the Assets securing, in the case of a consolidation or merger of the Issuer, all of the Notes, or, in the case of any transfer or conveyance of the Assets securing any of the Notes, such Notes and (C)Β such other matters as the Trustee, the Loan Obligation Manager or any Noteholder may reasonably require;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer shall have delivered to the Trustee, the Preferred Shares Paying Agent, the Loan Obligation Manager and each Noteholder, an Officerβs Certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this ArticleΒ 7 and that all conditions precedent in this ArticleΒ 7 provided for relating to such transaction have been complied with;
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has received an opinion from Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP or an opinion of other nationally recognized U.S. tax counsel experienced in such matters that the Issuer or the Person referred to in clause (a)Β either will (a)Β be treated as a Qualified REIT Subsidiary or (b)Β be treated as a foreign corporation not engaged in a U.S. trade or business or otherwise not subject to U.S. federal income tax on a net income tax basis;
Β
(viii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer has received an opinion from Xxxxxxxxxx, XxxxxxxxxxΒ & Xxxx LLP or an opinion of other nationally recognized U.S. tax counsel experienced in such matters that such action will not adversely affect the tax treatment of the Noteholders as described in the Offering Memorandum under the heading βCertain U.S. Federal Income Tax Considerationsβ to any material extent; and
Β
(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β after giving effect to such transaction, the Issuer shall not be required to register as an investment company under the 1940 Act.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Co-Issuer shall not consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any Person, unless no Notes remain Outstanding or:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Co-Issuer shall be the surviving entity, or the Person (if other than the Co-Issuer) formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred shall be a
Β
Β
company organized and existing under the laws of Delaware or such other jurisdiction approved by a Majority of the Controlling Class; provided that no such approval shall be required in connection with any such transaction undertaken solely to effect a change in the jurisdiction of formation pursuant to SectionΒ 7.4; and provided, further, that the surviving entity shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee and each Noteholder, the due and punctual payment of the principal of and interest on all Notes and the performance and observance of every covenant of this Indenture on the part of the Co-Issuer to be performed or observed, all as provided herein;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Rating Agency Condition has been satisfied;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred shall have agreed with the Trustee (A)Β to observe the same legal requirements for the recognition of such formed or surviving entity as a legal entity separate and apart from any of its Affiliates as are applicable to the Co-Issuer with respect to its Affiliates and (B)Β not to consolidate or merge with or into any other Person or transfer or convey all or substantially all of its assets to any other Person except in accordance with the provisions of this SectionΒ 7.10;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if the Co-Issuer is not the surviving entity, the Person formed by such consolidation or into which the Co-Issuer is merged or to which all or substantially all of the assets of the Co-Issuer are transferred shall have delivered to the Trustee and the Rating Agency an Officerβs Certificate and an Opinion of Counsel each stating that such Person is duly organized, validly existing and in good standing in the jurisdiction in which such Person is organized; that such Person has sufficient power and authority to assume the obligations set forth in SectionΒ 7.10(b)(i)Β above and to execute and deliver an indenture supplemental hereto for the purpose of assuming such obligations; that such Person has duly authorized the execution, delivery and performance of an indenture supplemental hereto for the purpose of assuming such obligations and that such supplemental indenture is a valid, legal and binding obligation of such Person, enforceable in accordance with its terms, subject only to bankruptcy, reorganization, insolvency, moratorium and other laws affecting the enforcement of creditorsβ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); such other matters as the Trustee or any Noteholder may reasonably require;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Co-Issuer shall have delivered to the Trustee, the Preferred Shares Paying Agent and each Noteholder an Officerβs Certificate and an Opinion of Counsel each stating that such consolidation, merger, transfer or conveyance and such supplemental indenture comply with this ArticleΒ 7 and that all conditions precedent in this ArticleΒ 7 provided for relating to such transaction have been complied with and that
Β
Β
no adverse tax consequences will result therefrom to the Holders of the Notes or the Preferred Shareholders; and
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β after giving effect to such transaction, the Co-Issuer shall not be required to register as an investment company under the 1940 Act.
Β
SectionΒ 7.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Successor Substituted.
Β
Upon any consolidation or merger, or transfer or conveyance of all or substantially all of the assets of the Issuer or the Co-Issuer, in accordance with SectionΒ 7.10 hereof, the Person formed by or surviving such consolidation or merger (if other than the Issuer or the Co-Issuer), or the Person to which such consolidation, merger, transfer or conveyance is made, shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Co-Issuer, as the case may be, under this Indenture with the same effect as if such Person had been named as the Issuer or the Co-Issuer, as the case may be, herein.Β In the event of any such consolidation, merger, transfer or conveyance, the Person named as the βIssuerβ or the βCo-Issuerβ in the first paragraph of this Indenture or any successor which shall theretofore have become such in the manner prescribed in this ArticleΒ 7 may be dissolved, wound-up and liquidated at any time thereafter, and such Person thereafter shall be released from its liabilities as obligor and maker on all the Notes and from its obligations under this Indenture.
Β
SectionΒ 7.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Other Business.
Β
The Issuer shall not engage in any business or activity other than issuing and selling the Notes pursuant to this Indenture and any supplements thereto, issuing its ordinary shares and issuing and selling the Preferred Shares in accordance with its Governing Documents, the Loan Obligation Management Agreement, and acquiring, owning, holding, disposing of and pledging the Assets in connection with the Notes and such other activities which are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith.Β The Co-Issuer shall not engage in any business or activity other than issuing and selling the Notes pursuant to this Indenture and any supplements thereto and such other activities which are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith.
Β
SectionΒ 7.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reporting.
Β
At any time when the Issuer and/or the Co-Issuer is not subject to SectionΒ 13 or 15(d)Β of the Exchange Act and is not exempt from reporting pursuant to RuleΒ 12g3-2(b)Β under the Exchange Act, upon the request of a Holder or beneficial owner of a Note, the Issuer and/or the Co-Issuer shall promptly furnish or cause to be furnished βRuleΒ 144A Informationβ (as defined below) to such Holder or beneficial owner, to a prospective purchaser of such Note designated by such Holder or beneficial owner or to the Trustee for delivery to such Holder or beneficial owner or a prospective purchaser designated by such Holder or beneficial owner, as the case may be, in order to permit compliance by such Holder or beneficial owner with RuleΒ 144A under the Securities Act in connection with the resale of such Note by such Holder or beneficial owner.Β βRuleΒ 144A Informationβ shall be such information as is specified pursuant to RuleΒ 144A(d)(4)Β under the Securities Act (or any successor provision thereto).Β The Trustee shall
Β
Β
reasonably cooperate with the Issuer and/or the Co-Issuer in mailing or otherwise distributing (at the Issuerβs expense) to such Noteholders or prospective purchasers, at and pursuant to the Issuerβs and/or the Co-Issuerβs written direction the foregoing materials prepared by or on behalf of the Issuer and/or the Co-Issuer; provided, however, that the Trustee shall be entitled to prepare and affix thereto or enclose therewith reasonable disclaimers to the effect that such RuleΒ 144A Information was not assembled by the Trustee, that the Trustee has not reviewed or verified the accuracy thereof, and that it makes no representation as to such accuracy or as to the sufficiency of such information under the requirements of RuleΒ 144A or for any other purpose.
Β
SectionΒ 7.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Calculation Agent.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer and the Co-Issuer hereby agree that for so long as any Notes remain Outstanding there shall at all times be an agent appointed to calculate LIBOR in respect of each Interest Accrual Period in accordance with the terms of Schedule B attached hereto (the βCalculation Agentβ).Β The Issuer and the Co-Issuer initially have appointed the Trustee as Calculation Agent for purposes of determining LIBOR for each Interest Accrual Period.Β The Calculation Agent may be removed by the Issuer at any time.Β The Calculation Agent may resign at any time by giving written notice thereof to the Issuer, the Co-Issuer, the Loan Obligation Manager, the Noteholders and the Rating Agency.Β If the Calculation Agent is unable or unwilling to act as such or is removed by the Issuer in respect of any Interest Accrual Period, the Issuer and the Co-Issuer shall promptly appoint as a replacement Calculation Agent a leading bank which is engaged in transactions in Eurodollar deposits in the international Eurodollar market and which does not control or is not controlled by or under common control with the Issuer or its Affiliates.Β The Calculation Agent may not resign its duties without a successor having been duly appointed.Β If no successor Calculation Agent shall have been appointed within 30Β days after giving of a notice of resignation, the resigning Calculation Agent, a Majority of the Notes or any Holder of a Note, on behalf of himself and all others similarly situated, may petition a court of competent jurisdiction for the appointment of a successor Calculation Agent.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Calculation Agent shall be required to agree that, as soon as practicable after 11:00Β a.m. (London time) on each LIBOR Determination Date (as defined in Schedule B attached hereto), but in no event later than 11:00Β a.m. (New York time) on the London Banking Day immediately following each LIBOR Determination Date, the Calculation Agent shall calculate LIBOR for the next Interest Accrual Period and will communicate such rates to the Issuer, the Co-Issuer, the Trustee, the Loan Obligation Manager, the Paying Agent and, if any Note is in the form of a Regulation S Global Security, to Euroclear and Clearstream, Luxembourg.Β The Calculation Agent shall also specify to the Issuer and the Co-Issuer the quotations upon which LIBOR is based, and in any event the Calculation Agent shall notify the Issuer and the Co-Issuer before 5:00Β p.m. (New York time) on each LIBOR Determination Date if it has not determined and is not in the process of determining LIBOR and the Interest Distribution Amounts for each ClassΒ of Notes, together with the reasons therefor.Β The determination of the ClassΒ A Rate and ClassΒ B Rate and the related ClassΒ A Interest Distribution Amount and ClassΒ B Interest Distribution Amount, respectively, by the Calculation Agent shall, absent manifest error, be final and binding on all parties.
Β
Β
SectionΒ 7.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β REIT Status.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Arbor Parent shall not take any action that results in the Issuer failing to qualify as a Qualified REIT Subsidiary of the Arbor Parent for federal income tax purposes, unless (A)Β based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary of a REIT other than Arbor Parent, or (B)Β based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that is not engaged in a trade or business in the United States for U.S. federal income tax purposes.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If the Issuer is no longer a Qualified REIT Subsidiary, prior to the time that:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any Loan Obligation would cause the Issuer to be treated as engaged in a trade or business in the United States or to become subject to U.S. federal tax on a net income basis,
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer would acquire or receive any asset in connection with a workout or restructuring of a Loan Obligation that could cause the Issuer to be treated as engaged in a trade or business in the United States or to become subject to U.S. federal tax on a net income basis,
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer would acquire the real property underlying any Loan Obligation pursuant to a foreclosure or deed-in-lieu of foreclosure, or
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any Loan Obligation is modified in such a manner that could cause the Issuer to be treated as engaged in a trade or business in the United States or to become subject to U.S. federal tax on a net income basis,
Β
the Issuer will either (x)Β organize one or more Permitted Subsidiaries and contribute the subject property to such Permitted Subsidiary, (y)Β contribute such Loan Obligation to an existing Permitted Subsidiary, or (z)Β sell such Loan Obligation in accordance with SectionΒ 12.1.
Β
SectionΒ 7.16Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Permitted Subsidiaries.
Β
Notwithstanding any other provision of this Indenture, the Loan Obligation Manager on behalf of the Issuer shall be permitted to sell to a Permitted Subsidiary at any time any Sensitive Asset for consideration consisting entirely of the equity interests of such Permitted Subsidiary (or for an increase in the value of equity interests already owned).Β The Trustee shall, upon receipt of an Issuer Order certifying that the sale of a Sensitive Asset is being made in accordance with satisfaction of all requirements of this Indenture, release such Sensitive Asset and shall deliver such Sensitive Asset as specified in such Issuer Order.Β The following provisions shall apply to all Sensitive Assets and Permitted Subsidiaries:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β For all purposes under this Indenture, any Sensitive Asset transferred to a Permitted Subsidiary shall be treated as if it were an asset owned directly by the Issuer.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Any distribution of Cash by a Permitted Subsidiary to the Issuer shall be characterized as Interest Proceeds or Principal Proceeds to the same extent that such Cash would
Β
Β
have been characterized as Interest Proceeds or Principal Proceeds if received directly by the Issuer and each Permitted Subsidiary shall cause all proceeds of and collections on each Sensitive Asset owned by such Permitted Subsidiary to be deposited into the applicable Collection Account.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β To the extent applicable, the Issuer shall form one or more Securities Accounts with the Custodial Securities Intermediary for the benefit of each Permitted Subsidiary and shall, to the extent applicable, cause Sensitive Assets to be credited to such Securities Accounts.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding the complete and absolute transfer of a Sensitive Asset to a Permitted Subsidiary, for purposes of measuring compliance with the Note Protection Tests, the ownership interests of the Issuer in a Permitted Subsidiary or any property distributed to the Issuer by a Permitted Subsidiary shall be treated as a continuation of its ownership of the Sensitive Asset that was transferred to such Permitted Subsidiary (and shall be treated as having the same characteristics as such Sensitive Asset).
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If the Trustee or any other authorized party takes any action under this Indenture to sell, liquidate or dispose of all or substantially all of the Assets, the Issuer or the Loan Obligation Manager on the Issuerβs behalf shall cause each Permitted Subsidiary to sell each Sensitive Asset and all other assets held by such Permitted Subsidiary and distribute the proceeds of such sale, net of any amounts necessary to satisfy any related expenses and tax liabilities, to the Issuer in exchange for the equity interest in such Permitted Subsidiary held by the Issuer.
Β
SectionΒ 7.17Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Repurchase Requests.
Β
If the Issuer, the Trustee or the Loan Obligation Manager receives or otherwise becomes aware of any request or demand whether oral or written that a Loan Obligation be repurchased or replaced arising from any breach of a representation or warranty made with respect to such Loan Obligation (any such request or demand, a βRepurchase Requestβ) or a withdrawal of a Repurchase Request from any Person other than the CLO Servicer, then the Trustee or the Loan Obligation Manager on behalf of the Issuer, as applicable, shall promptly forward or otherwise provide written notice of such Repurchase Request or withdrawal of a Repurchase Request, as the case may be, to the CLO Servicer, and include the following statement in the related correspondence:Β βThis is a β[Repurchase Request]/[withdrawal of a Repurchase Request]β under SectionΒ 3.01(c)Β of the Servicing Agreement relating to Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd. requiring action by you as the βRepurchase Request Recipientβ thereunder.βΒ Upon receipt of such Repurchase Request or withdrawal of a Repurchase Request by the Trustee or Loan Obligation Manager pursuant to the prior sentence, the CLO Servicer shall be deemed to be the Repurchase Request Recipient in respect of such Repurchase Request or withdrawal of a Repurchase Request, as the case may be, and shall be responsible for complying with the procedures set forth in SectionΒ 3.01(c)Β of the Servicing Agreement with respect to such Repurchase Request.Β If the Trustee, the Issuer or the Loan Obligation Manager receives notice or has knowledge of a withdrawal of a Repurchase Request of which notice has been previously received or given, and such notice was not received from or
Β
Β
copied to the CLO Servicer, then the Trustee or the Loan Obligation Manager on behalf of the Issuer, as applicable, shall promptly give notice of such withdrawal to the CLO Servicer.
Β
SectionΒ 7.18Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Purchase of Additional Loan Obligations.
Β
The Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall, prior to the Portfolio Finalization Date, use commercially reasonable efforts to apply amounts on deposit in the Unused Proceeds Account to purchase Additional Loan Obligations in accordance with SectionΒ 10.4(d)Β (which shall be, and hereby are, Granted to the Trustee pursuant to the Granting Clause of this Indenture) for inclusion in the Assets upon receipt by the Trustee of an Issuer Order executed by the Issuer (or the Loan Obligation Manager on behalf of the Issuer) with respect thereto directing the Trustee to pay out the amount specified therein against delivery of the Additional Loan Obligation specified therein and a certificate of an Authorized Officer of the Issuer (or the Loan Obligation Manager), dated as of the trade date, and delivered to the Trustee on or prior to the date of such purchase and Grant, to the effect that after giving effect to such purchase and Grant of the Additional Loan Obligations, except for Closing Date Loan Obligations acquired during the Post-Closing Acquisition Period, the Eligibility Criteria are met with respect to the Additional Loan Obligations purchased.Β Each Additional Loan Obligation, except for Closing Date Loan Obligations acquired during the Post-Closing Acquisition Period, shall satisfy the applicable Eligibility Criteria.
Β
SectionΒ 7.19Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Portfolio Finalization Date Actions.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall cause to be delivered to the Trustee and the Rating Agency on the Portfolio Finalization Date an amended Schedule A listing all Loan Obligations Granted to the Trustee pursuant to SectionΒ 7.18 on or before the Portfolio Finalization Date and included in the Assets on the Portfolio Finalization Date, which schedule shall supersede any prior Schedule A delivered to the Trustee.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Within 30 Business Days after the Portfolio Finalization Date, the Issuer shall provide, or (at the Issuerβs expense) cause the Loan Obligation Manager to provide, the following documents to the Trustee and the Rating Agency: (A)Β a report of the Collateral Administrator (x)Β confirming the name of the borrower, the unpaid principal balance, coupon, maturity date and Xxxxxβx Rating with respect to each Additional Loan Obligation owned by the Issuer as of the Portfolio Finalization Date, and (y)Β confirming that, as of the Portfolio Finalization Date, the Note Protection Tests were satisfied (the βPortfolio Finalization Date Reportβ) and (B)Β a certificate of the Loan Obligation Manager on behalf of the Issuer (x)Β certifying the receipt of an accountantsβ report that specifies the agreed-upon procedures performed, at the request of the Issuer, on the items set forth in the Portfolio Finalization Date Report and (y)Β certifying that each Additional Loan Obligation, except for any Closing Date Loan Obligation acquired during the Post-Closing Acquisition Period, satisfied all of the Eligibility Criteria applicable to Additional Loan Obligations.Β If the Portfolio Finalization Date Report provided by the Collateral Administrator confirms that the immediately foregoing subclause (A)Β have been met, then a Xxxxxβx Portfolio Finalization Date Deemed Rating Confirmation shall occur.Β If, within such 30 Business Day period the Issuer, or the Loan Obligation Manager on behalf of the Issuer, fails to provide the items described in foregoing
Β
Β
subclauses (A)Β and (B)Β or any rating assigned as of the Closing Date to any ClassΒ of Notes has been downgraded or withdrawn, a βRating Confirmation Failureβ shall occur.
Β
For the avoidance of doubt, the Loan Obligation Managerβs certificate described in the foregoing clause (B)Β shall not include the Accountantsβ Report.
Β
ARTICLEΒ 8
Β
SUPPLEMENTAL INDENTURES
Β
SectionΒ 8.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Supplemental Indentures Without Consent of Securityholders.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Without the consent of the Holders of any Notes or any Preferred Shareholders, the Issuer, the Co-Issuer, when authorized by Board Resolutions of the Co-Issuers, and when authorized by the Trustee, the Trustee and, at any time and from time to time subject to the requirement provided below in this SectionΒ 8.1, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β evidence the succession of any Person to the Issuer or the Co-Issuer and the assumption by any such successor of the covenants of the Issuer or the Co-Issuer, as applicable, herein and in the Notes;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β add to the covenants of the Issuer, the Co-Issuer or the Trustee for the benefit of the Holders of the Notes, Preferred Shareholders or to surrender any right or power herein conferred upon the Issuer or the Co-Issuer, as applicable;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or add to the conditions, limitations or restrictions on the authorized amount, terms and purposes of the issue, authentication and delivery of the Notes;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β evidence and provide for the acceptance of appointment hereunder of a successor Xxxxxxx and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Sections 6.9, 6.10 and 6.12 hereof;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β correct or amplify the description of any property at any time subject to the lien of this Indenture, or to better assure, convey and confirm unto the Trustee any property subject or required to be subject to the lien of this Indenture (including, without limitation, any and all actions necessary or desirable as a result of changes in law or regulations) or to subject any additional property to the lien of this Indenture;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β modify the restrictions on and procedures for resales and other transfers of Notes to reflect any changes in applicable law or regulation (or the interpretation thereof) or to enable the Issuer and the Co-Issuer to rely upon any exemption from registration under the Securities Act, the Exchange Act or the 1940 Act or to remove restrictions on resale and transfer to the extent not required thereunder;
Β
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β accommodate the issuance, if any, of Notes in global or book-entry form through the facilities of DTC or otherwise;
Β
(viii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β otherwise correct any inconsistency or cure any ambiguity, omission or mistake;
Β
(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β take any action commercially reasonably necessary or advisable to prevent the Issuer from failing to qualify as a Qualified REIT Subsidiary or other disregarded entity of a REIT for U.S. federal income tax purposes or otherwise being treated as a foreign corporation engaged in a trade or business in the United States for federal income tax purposes, or to prevent the Issuer, the Holders of the Notes, the Holders of the Preferred Shares or the Trustee from being subject to withholding or other taxes, fees or assessments or otherwise subject to U.S. federal, state, local or foreign income or franchise tax on a net income tax basis;
Β
(x)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β evidence any waiver or elimination by the Rating Agency of any requirement or condition of the Rating Agency set forth herein or to amend or supplement any provision of this Indenture to the extent necessary to maintain the then-current ratings assigned to the Notes;
Β
(xi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β accommodate the settlement of the Notes in book-entry form through the facilities of DTC, Euroclear or Clearstream, Luxembourg or otherwise;
Β
(xii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β authorize the appointment of any listing agent, transfer agent, paying agent or additional registrar for any ClassΒ of Notes required or advisable in connection with the listing of any ClassΒ of Notes on any stock exchange, and otherwise to amend this Indenture to incorporate any changes required or requested by any governmental authority, stock exchange authority, listing agent, transfer agent, paying agent or additional registrar for any ClassΒ of Notes in connection therewith;
Β
(xiii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β evidence changes to applicable laws and regulations;
Β
(xiv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β reduce the minimum denominations required for transfer of the Notes;
Β
(xv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β modify the provisions of this Indenture with respect to reimbursement of Nonrecoverable Interest Advances if (a)Β the Loan Obligation Manager determines that the commercial mortgage securitization industry standard for such provisions has changed, in order to conform to such industry standard and (b)Β such modification does not adversely affect the status of Issuer for federal income tax purposes, as evidenced by an Opinion of Counsel;
Β
(xvi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β modify the procedures set forth in this Indenture relating to compliance with RuleΒ 17g-5 of the Exchange Act; provided that the change would not materially increase the obligations of the Loan Obligation Manager, the Trustee, any paying agent, the servicer or the special servicer and would not adversely affect in any material respect the interests of any Noteholder or holder of the Preferred Shares; provided, further, that the Loan Obligation Manager must provide a copy of any such amendment to the
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Β
Information Agent for posting to the RuleΒ 17g-5 Website and provide notice of any such amendment to the Rating Agency; and
Β
(xvii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β make any change to any other provisions with respect to matters or questions arising under this Indenture; provided that the required action will not adversely affect in any material respect the interests of any Noteholder not consenting thereto, as evidenced by (A)Β an Opinion of Counsel or (B)Β satisfaction of the Rating Agency Condition.
Β
The Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trusteeβs own rights, duties, liabilities or immunities under this Indenture or otherwise, except to the extent required by law.
Β
If any ClassΒ of Notes is Outstanding and rated, the Trustee shall not enter into any such supplemental indenture unless the Rating Agency Condition has been satisfied, the notice of which may be in electronic form.Β At the cost of the Issuer, the Trustee shall provide to each Noteholder and each holder of Preferred Shares and, for so long as any ClassΒ of Notes shall remain Outstanding and is rated, the Trustee shall provide to the Rating Agency a copy of any proposed supplemental indenture at least 15 Business Days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation, which may be in electronic form, from each noteholder and holder of Preferred Shares, that such proposed supplemental indenture will not materially and adversely affect such Noteholder or holder of Preferred Shares, and, as soon as practicable after the execution by the Trustee, the Issuer and the Co-Issuer of any such supplemental indenture, provide to the Rating Agency a copy of the executed supplemental indenture.Β Following such initial 15 Business Day period, the Trustee will provide an additional 15 Business Daysβ notice to any Noteholder or holder of Preferred Shares that did not respond to the initial notice and, unless the Trustee is notified (after giving such initial 15 Business Daysβ notice and second 15 Business Daysβ notice, as applicable) by such Noteholder or such holder of Preferred Shares that such Person will be materially and adversely affected by the proposed supplemental indenture, the interests of such Person will be deemed not to be materially and adversely affected by such proposed supplemental indenture.
Β
The Trustee shall not enter into any such supplemental indenture if (i)Β as a result of such supplemental indenture, the interests of any Holder of Securities would be materially and adversely affected thereby, unless the Majority of each and every ClassΒ of Notes or the Preferred Shares so affected have approved such supplemental indenture (but, in each case, disregarding any Securities beneficially owned by the Loan Obligation Manager or any of its affiliates) or (ii)Β such action would adversely affect the tax treatment of the Holders of the Notes as described in the Offering Memorandum under the heading βCertain U.S. Federal Income Tax Considerationsβ to any material extent or otherwise cause any of the statements described in the Offering Memorandum under the heading βCertain U.S. Federal Income Tax Considerationsβ to be inaccurate or incorrect to any material extent.Β The Trustee shall be entitled to rely upon (i)Β the receipt of notice from the Rating Agency or the Requesting Party, which may be in electronic form, that the Rating Agency Condition has been satisfied and (ii)Β receipt of an
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Officerβs Certificate of the Loan Obligation Manager certifying that, following provision of notice of such supplemental indenture to the Noteholders and holders of the Preferred Shares and expiry of the time period set forth in the above paragraph, that the Holders of Securities would not be materially and adversely affected by such supplemental indenture.Β Such determination shall be conclusive and binding on all present and future Holders of Securities.Β The Trustee shall not be liable for any such determination made in good faith and in reliance upon such Officerβs Certificate.
Β
Furthermore, the Trustee shall not enter into any such supplemental indenture unless the Trustee has received an Opinion of Counsel from Cadwalader, XxxxxxxxxxΒ & Xxxx LLP or other nationally recognized U.S. tax counsel experienced in such matters that the proposed supplemental indenture will not cause the Issuer to (x)Β fail to be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT for U.S. federal income tax purposes or (y)Β be treated as a foreign corporation that is engaged in a trade or business in the United States for U.S. federal income tax purposes.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding SectionΒ 8.1(a)Β or any other provision of this Indenture, without the consent of the Holders of any Notes or any Preferred Shareholders, the Issuer, the Co-Issuer, when authorized by Board Resolutions of the Co-Issuers, and when authorized by the Trustee, the Trustee, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β conform this Indenture to the provisions described in this Offering Memorandum (or any supplement thereto);
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to correct any defect or ambiguity in this Indenture in order to address any manifest error in any provision of this Indenture; and
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to update this Indenture for any Xxxxxβx Test Modification in the manner set forth in SectionΒ 12.4 hereof.
Β
SectionΒ 8.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Supplemental Indentures with Consent of Securityholders.
Β
Except as set forth below, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of any ClassΒ of Notes or the Preferred Shares under this Indenture only (x)Β with the written consent of the Holders of a Majority in Aggregate Outstanding Amount of the Notes of each ClassΒ materially and adversely affected thereby (excluding any Notes owned by the Loan Obligation Manager or any of its Affiliates or by any accounts managed by them) and the Holder of Preferred Shares if materially and adversely affected thereby, by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (y)Β subject to satisfaction of the Rating Agency Condition, notice of which may be in electronic form.Β Unless the Trustee is notified (after giving (x)Β 15 Business Daysβ notice of such change to the Holders of each ClassΒ of Notes and the Holder of the Preferred Shares requesting notification by such Noteholders and holders of the Preferred Shares if any such Noteholders or holders of the Preferred Shares would be materially and adversely affected by the proposed supplemental indenture and (y)Β following such initial 15
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Β
Business Day period, an additional 15 Business Daysβ notice to any holder of Notes or Preferred Shares that did not respond to the initial notice) by Holders of a Majority in Aggregate Outstanding Amount of the Notes of any ClassΒ that such ClassΒ of Notes will be materially and adversely affected by the proposed supplemental indenture (and upon receipt of an Officerβs Certificate of the Loan Obligation Manager), the interests of such ClassΒ and the interests of the Preferred Shares will be deemed not to be materially and adversely affected by such proposed supplemental indenture and the Trustee will be permitted to enter into such supplemental indenture.Β Such determinations shall be conclusive and binding on all present and future Noteholders.Β The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares.Β The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Officerβs Certificate of the Loan Obligation Manager.
Β
Without the consent of (x)Β all of the Holders of each Outstanding ClassΒ of Notes materially adversely affected and (y)Β all of the Holders of the Preferred Shares materially adversely affected thereby, no supplemental indenture may:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β change the Stated Maturity Date of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity Date thereof (or, in the case of redemption, on or after the applicable Redemption Date);
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each ClassΒ or the Notional Amount of Preferred Shares of the Holders thereof whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β impair or adversely affect the Assets except as otherwise permitted in this Indenture;
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each ClassΒ whose consent is required to request the Trustee to preserve the Assets or rescind the Trusteeβs election to preserve the Assets pursuant to SectionΒ 5.5 or to sell or liquidate the Assets pursuant to SectionΒ 5.4 or 5.5 hereof;
Β
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β modify any of the provisions of this SectionΒ 8.2, except to increase any percentage of Outstanding Notes whose holdersβ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note affected thereby;
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β modify the definition of the term βOutstandingβ or the provisions of SectionΒ 11.1 or SectionΒ 13.1 hereof;
Β
(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest on or principal of any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein;
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β reduce the permitted minimum denominations of the Notes below the minimum denomination necessary to maintain an exemption from the registration requirements of the Securities Act or the 1940 Act; or
Β
(j)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β modify any provisions regarding non- recourse or non-petition covenants with respect to the Issuer and the Co-Issuer.
Β
The Trustee shall be entitled to rely upon an Officerβs Certificate of the Issuer or the Loan Obligation Manager on behalf of the Issuer in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities).Β Such determination shall be conclusive and binding on all present and future Holders of Securities.Β The Trustee shall not be liable for any such determination made in good faith and in reliance upon such Officerβs Certificate of the Issuer or the Loan Obligation Manager on behalf of the Issuer, as described in SectionΒ 8.3 hereof.
Β
It shall not be necessary for any Act of Securityholders under this SectionΒ 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Β
Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this SectionΒ 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, the Preferred Shares Paying Agent, the Loan Obligation Manager, and, so long as the Notes are Outstanding and so rated, the Rating Agency a copy thereof based on an outstanding rating.Β Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Β
SectionΒ 8.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Execution of Supplemental Indentures.
Β
In executing or accepting the additional trusts created by any supplemental indenture permitted by this ArticleΒ 8 or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officerβs Certificate of the Issuer or the Loan Obligation Manager on behalf of the Issuer stating
Β
Β
that the execution of such supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent thereto have been satisfied. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trusteeβs own rights, duties or immunities under this Indenture or otherwise.Β The Loan Obligation Manager will be bound to follow any amendment or supplement to this Indenture of which it has received written notice at least ten Business Days prior to the execution and delivery of such amendment or supplement; provided, however, that with respect to any amendment or supplement to this Indenture which may, in the judgment of the Loan Obligation Manager adversely affect the Loan Obligation Manager, the Loan Obligation Manager shall not be bound (and the Issuer agrees that it will not permit any such amendment to become effective) unless the Loan Obligation Manager gives written consent to the Trustee and the Issuer to such amendment.Β The Issuer and the Trustee shall give written notice to the Loan Obligation Manager of any amendment made to this Indenture pursuant to its terms.Β In addition, the Loan Obligation Managerβs written consent shall be required prior to any amendment to this Indenture by which it is adversely affected.
Β
SectionΒ 8.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Effect of Supplemental Indentures.
Β
Upon the execution of any supplemental indenture under this ArticleΒ 8, this Indenture shall be modified in accordance therewith, such supplemental indenture shall form a part of this Indenture for all purposes and every Holder of Notes theretofore and thereafter authenticated and delivered hereunder, and every Holder of Preferred Shares, shall be bound thereby.
Β
SectionΒ 8.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reference in Notes to Supplemental Indentures.
Β
Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this ArticleΒ 8 may, and if required by the Trustee shall, bear a notice in form approved by the Trustee as to any matter provided for in such supplemental indenture.Β If the Issuer and the Co-Issuer shall so determine, new Notes, so modified as to conform in the opinion of the Trustee and the Issuer and the Co-Issuer to any such supplemental indenture, may be prepared and executed by the Issuer and the Co-Issuer and authenticated and delivered by the Trustee in exchange for Outstanding Notes.
Β
ARTICLEΒ 9
Β
REDEMPTION OF SECURITIES; REDEMPTION PROCEDURES
Β
SectionΒ 9.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Clean-up Call; Tax Redemption and Optional Redemption.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Notes may be redeemed by the Issuer at the option of and at the direction of the Loan Obligation Manager (such redemption, a βClean-up Callβ), in whole but not in part, at a price equal to the applicable Redemption Prices on any Payment Date (the βClean-up Call Dateβ) on or after the Payment Date on which the Aggregate Outstanding Amount of the Notes has been reduced to 10% of the Aggregate Outstanding Amount of the Notes on the Closing Date; provided that that the funds available to be used for such Clean-up Call will be sufficient to pay the Total Redemption Price.
Β
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Notes and the Preferred Shares shall be redeemable, in whole but not in part, by Act of a Majority of Preferred Shareholders delivered to the Trustee, on the Payment Date (the βTax Redemption Dateβ) following the occurrence of a Tax Event if the Tax Materiality Condition is satisfied at a price equal to the applicable Redemption Prices (such redemption, a βTax Redemptionβ); provided that that the funds available to be used for such Tax Redemption will be sufficient to pay the Total Redemption Price.Β Upon the occurrence of a Tax Event, the Issuer and the Co-Issuer, at the direction of the Loan Obligation Manager shall provide written notice thereof to the Trustee and the Rating Agency.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Notes and the Preferred Shares shall be redeemable, in whole but not in part, at a price equal to the applicable Redemption Prices, on any Payment Date after the end of the Non-call Period, at the direction of the Issuer (such redemption, an βOptional Redemptionβ) by Act of a Majority of Preferred Shareholders delivered to the Trustee; provided, however, that the funds available to be used for such Optional Redemption will be sufficient to pay the Total Redemption Price.Β Notwithstanding anything herein to the contrary, the Issuer shall not sell any Asset to the Loan Obligation Manager or any Affiliate of the Loan Obligation Manager other than ARMS Equity in connection with an Optional Redemption.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The election by the Loan Obligation Manager to redeem the Notes pursuant to a Clean-up Call shall be evidenced by an Officerβs Certificate from the Loan Obligation Manager directing the Trustee to make the payment to the Paying Agent of the applicable Redemption Price of all of the Notes to be redeemed from funds in the Payment Account in accordance with the Priority of Payments.Β In connection with a Tax Redemption, the occurrence of a Tax Event and satisfaction of the Tax Materiality Condition shall be evidenced by an Issuer Order from the Issuer or from the Loan Obligation Manager on behalf of the Issuer certifying that such conditions for a Tax Redemption have occurred.Β The election by the Loan Obligation Manager to redeem the Notes pursuant to an Optional Redemption shall be evidenced by an Officerβs Certificate from the Loan Obligation Manager on behalf of the Issuer certifying that the conditions for an Optional Redemption have occurred.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β A redemption pursuant to SectionΒ 9.1(a), 9.1(b)Β or 9.1(c)Β shall not occur unless (i)Β at least six Business Days before the scheduled Redemption Date, (A)Β the Loan Obligation Manager shall have certified to the Trustee that the Loan Obligation Manager, on behalf of the Issuer, has entered into a binding agreement or agreements with (1)Β one or more financial institutions whose long-term unsecured debt obligations (other than such obligations whose rating is based on the credit of a person other than such institution) have a credit rating from the Rating Agency at least equal to the highest rating of any Notes then Outstanding or whose short-term unsecured debt obligations have a credit rating of βP-1β by Xxxxxβx (as long as the term of such agreement is 90 days or less) and βA-1β by S&P or (2)Β one or more Affiliates of the Loan Obligation Manager, to sell all or part of the Assets not later than the Business Day immediately preceding the scheduled Redemption Date or (B)Β the Trustee shall have received written confirmation that the method of redemption satisfies the Rating Agency Condition and (ii)Β the related Sale Proceeds (in immediately available funds), together with all other available funds (including proceeds from the sale of the Assets, Eligible Investments maturing on or prior to the scheduled Redemption Date, all amounts in the Collection Accounts and available Cash), shall be an aggregate amount sufficient to pay all amounts, payments, fees and expenses in accordance with the Priority of Payments due and owing on such Redemption Date.
Β
Β
SectionΒ 9.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notice of Redemption.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In connection with an Optional Redemption, a Clean-up Call or a Tax Redemption pursuant to SectionΒ 9.1, the Trustee on behalf of the Issuer and the Co-Issuer shall (i)Β set the applicable Record Date and (ii)Β at least 45 days prior to the proposed Redemption Date, notify the Loan Obligation Manager, the Rating Agency, the Preferred Share Paying Agent and each Preferred Shareholder at such Preferred Shareholderβs address in the register maintained by the Share Registrar, of such proposed Redemption Date, the applicable Record Date, the principal amount of Notes to be redeemed on such Redemption Date and the Redemption Price of such Notes in accordance with SectionΒ 9.1.Β The Redemption Price shall be determined no earlier than 60 days prior to the proposed Redemption Date.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Any such notice of an Optional Redemption, a Clean-up Call or a Tax Redemption may be withdrawn by the Issuer and the Co-Issuer at the direction of the Loan Obligation Manager up to the fourth Business Day prior to the scheduled Redemption Date by written notice to the Trustee, the Preferred Share Paying Agent, to each Holder of Notes to be redeemed, and the Loan Obligation Manager only if the Loan Obligation Manager is unable to deliver the sale agreement or agreements or certifications referred to in SectionΒ 9.1(e), as the case may be.
Β
SectionΒ 9.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notice of Redemption or Maturity by the Issuer.
Β
Notice of redemption pursuant to SectionΒ 9.1 or the Maturity of any Notes shall be given by first class mail, postage prepaid, mailed not less than ten Business Days (or four Business Days where the notice of an Optional Redemption, a Clean-up Call or a Tax Redemption is withdrawn pursuant to SectionΒ 9.2(b)) prior to the applicable Redemption Date or Maturity, to each Holder of Notes to be redeemed, at its address in the Notes Register.
Β
All notices of redemption shall state:
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the applicable Redemption Date;
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the applicable Redemption Price;
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β that all the Notes are being paid in full and that interest on the Notes shall cease to accrue on the Redemption Date specified in the notice; and
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the place or places where such Notes to be redeemed in whole are to be surrendered for payment of the Redemption Price which shall be the office or agency of the Paying Agent as provided in SectionΒ 7.2.
Β
Notice of redemption shall be given by the Issuer and Co-Issuer, or at their request, by the Trustee in their names, and at the expense of the Issuer.Β Failure to give notice of redemption, or any defect therein, to any Holder of any Note shall not impair or affect the validity of the redemption of any other Notes.
Β
Β
SectionΒ 9.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notes Payable on Redemption Date.
Β
Notice of redemption having been given as aforesaid, the Notes to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after the Redemption Date (unless the Issuer shall Default in the payment of the Redemption Price and accrued interest thereon) the Notes shall cease to bear interest on the Redemption Date.Β Upon final payment on a Note to be redeemed, the Holder shall present and surrender such Note at the place specified in the notice of redemption on or prior to such Redemption Date; provided, however, that if there is delivered to the Issuer, the Co-Issuer and the Trustee such security or indemnity as may be required by them to hold each of them harmless (an unsecured indemnity agreement delivered to the Issuer, the Co-Issuer and the Trustee by an institutional investor with a net worth of at least U.S.$200,000,000 being deemed to satisfy such security or indemnity requirement) and an undertaking thereafter to surrender such Note, then, in the absence of notice to the Issuer, the Co-Issuer and the Trustee that the applicable Note has been acquired by a bona fide purchaser, such final payment shall be made without presentation or surrender.Β Payments of interest on Notes of a ClassΒ so to be redeemed whose Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more predecessor Notes, registered as such at the close of business on the relevant Record Date according to the terms and provisions of SectionΒ 2.7(f).
Β
If any Note called for redemption shall not be paid upon surrender thereof for redemption, the principal thereof shall, until paid, bear interest from the Redemption Date at the applicable Note Interest Rate for each successive Interest Accrual Period the Note remains Outstanding.
Β
SectionΒ 9.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Mandatory Redemption.
Β
On any Payment Date on which any of the Note Protection Tests applicable to any ClassΒ of Notes is not satisfied as of the most recent Measurement Date, the Notes shall be redeemed (a βMandatory Redemptionβ), first from Interest Proceeds, net of amounts set forth in SectionΒ 11.1(a)(i)(1)Β through (6), and then from Principal Proceeds, as set forth in clause (1)Β of SectionΒ 11.1(a)(ii), in an amount necessary, and only to the extent necessary, to cause each of the Note Protection Tests to be satisfied).Β Such Principal Proceeds and Interest Proceeds shall be applied to each of the Outstanding Classes of Notes in accordance with its relative seniority in accordance with the Priority of Payments.Β On or promptly after such Mandatory Redemption, the Issuer and the Co-Issuer shall certify or cause to be certified to the Rating Agency and the Trustee whether the Note Protection Tests have been met.
Β
ARTICLEΒ 10
Β
ACCOUNTS, ACCOUNTINGS AND RELEASES
Β
SectionΒ 10.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Collection of Amounts; Custodial Account.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Except as otherwise expressly provided herein, the Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all amounts and other property payable to or
Β
Β
receivable by the Trustee pursuant to this Indenture, including all payments due on the Assets in accordance with the terms and conditions of such Assets.Β The Trustee shall segregate and hold all such amounts and property received by it in trust for the Secured Parties, and shall apply it as provided in this Indenture.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall credit all Loan Obligations and Eligible Investments to an account in the name of the Issuer for the benefit of the Secured Parties designated as the βCustodial Account.β
Β
SectionΒ 10.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Collection Accounts.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall, prior to the Closing Date, establish a Securities Account with the Custodial Securities Intermediary which shall be designated as the βCollection Accountβ (which may be a subaccount of the Custodial Account) and shall consist of two subaccounts, the βInterest Collection Accountβ and the βPrincipal Collection Accountβ (collectively, the βCollection Accountsβ), which shall be held in trust in the name of the Trustee for the benefit of the Secured Parties, into which Collection Accounts, as applicable, the Trustee shall from time to time deposit (i)Β all Sale Proceeds (unless simultaneously reinvested in Replacement Loan Obligations in accordance with terms set forth in SectionΒ 12.2(a)) and (ii)Β all Interest Proceeds and all Principal Proceeds.Β In addition, the Issuer may, but under no circumstances shall, be required to, deposit from time to time such amounts in the Collection Accounts as it deems, in its sole discretion, to be advisable.Β All amounts deposited from time to time in the Collection Accounts pursuant to this Indenture shall be held by the Trustee as part of the Assets and shall be applied to the purposes herein provided.Β The Collection Accounts shall remain at all times with the Corporate Trust Office or a financial institution having a long-term debt rating at least equal to βAa3β by Xxxxxβx and a short-term debt rating at least equal to βP-1β by Xxxxxβx.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β All distributions of principal or interest received in respect of the Assets, and any Sale Proceeds from the sale or disposition of a Loan Obligation or other Assets received by the Trustee shall be immediately credited to the Interest Collection Account or the Principal Collection Account, as Interest Proceeds or Principal Proceeds, respectively (unless, in the case of proceeds received from the sale or disposition of any Assets, such proceeds are simultaneously reinvested pursuant to SectionΒ 10.2(d)Β in Replacement Loan Obligations, in accordance with SectionΒ 12.2(a)).Β Subject to Sections 10.2(d), 10.2(e)Β and 11.2, all such property, together with any securities in which funds included in such property are or will be invested or reinvested during the term of this Indenture, and any income or other gain realized from such investments, shall be held by the Trustee in the Collection Accounts as part of the Assets subject to disbursement and withdrawal as provided in this SectionΒ 10.2.Β Subject to SectionΒ 10.2(e)Β by Issuer Order (which may be in the form of standing instructions), the Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall at all times direct the Trustee to, and, upon receipt of such Issuer Order, the Trustee shall, invest all funds received into the Collection Accounts during a Due Period, and amounts received in prior Due Periods and retained in the Collection Accounts, as so directed in Eligible Investments having stated maturities no later than the Business Day immediately preceding the next Payment Date.Β The Trustee, within one Business Day after receipt of any Scheduled Distribution or other proceeds in respect of the Assets which is not Cash, shall so notify the Issuer and the Loan Obligation Manager and the Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall, within
Β
Β
five Business Days of receipt of such notice from the Trustee, sell such Scheduled Distribution or other non-Cash proceeds for Cash in an armβs length transaction to a Person which is not an Affiliate of the Issuer or the Loan Obligation Manager and deposit the proceeds thereof in the applicable Collection Account for investment pursuant to this SectionΒ 10.2; provided, however, that the Issuer (or the Loan Obligation Manager on behalf of the Issuer) need not sell such Scheduled Distributions or other non-Cash proceeds if it delivers an Officerβs Certificate to the Trustee certifying that such Scheduled Distributions or other proceeds constitute Loan Obligations or Eligible Investments.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If prior to the occurrence of an Event of Default, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall not have given any investment directions pursuant to SectionΒ 10.2(b), the Trustee shall seek instructions from the Issuer (or the Loan Obligation Manager on behalf of the Issuer) within three Business Days after transfer of such funds to the applicable Collection Account.Β If the Trustee does not thereupon receive written instructions from the Issuer (or the Loan Obligation Manager on behalf of the Issuer) within five Business Days after transfer of such funds to the applicable Collection Account, it shall invest and reinvest the funds held in the applicable Collection Account in one or more Eligible Investments described in clause (ii)Β of the definition of Eligible Investments maturing no later than the Business Day immediately preceding the next Payment Date.Β If after the occurrence of an Event of Default, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall not have given investment directions to the Trustee pursuant to SectionΒ 10.2(b)Β for three consecutive days, the Trustee shall invest and reinvest such amounts as fully as practicable in Eligible Investments described in clause (ii)Β of the definition of Eligible Investments with maturities of less than 30 days and that are sold by the Issuer not later than two Business Days immediately preceding the next Payment Date.Β All interest and other income from such investments shall be deposited in the applicable Collection Account, any gain realized from such investments shall be credited to the applicable Collection Account, and any loss resulting from such investments shall be charged to the applicable Collection Account. Β The Trustee shall not in any way be held liable (except as a result of negligence, willful misconduct or bad faith) by reason of any insufficiency of such applicable Collection Account resulting from any loss relating to any such investment, except with respect to investments in obligations of the Trustee or any Affiliate thereof.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β During the Replacement Period (and up to 60 days thereafter to the extent necessary to acquire Loan Obligations pursuant to binding commitments entered into during the Replacement Period using Principal Proceeds received during or after the Replacement Period), the Loan Obligation Manager on behalf of the Issuer may by Issuer Order direct the Trustee to, and upon receipt of such Issuer Order the Trustee shall, reinvest Principal Proceeds in Loan Obligations selected by the Loan Obligation Manager as permitted under and in accordance with the requirements of ArticleΒ 12 and such Issuer Order.Β Any Principal Xxxxxxxx standing to the credit of the Principal Collection Account may be designated by the Loan Obligation Manager for application to reinvestment in Replacement Loan Obligations (such Principal Proceeds, βDesignated Principal Proceedsβ) and, if and for so long as such Principal Proceeds are Designated Principal Proceeds, such Principal Proceeds shall remain in the Principal Collection Account (or invested in Eligible Investments) until the earlier of (i)Β the time the Loan Obligation Manager notifies the Trustee in writing that such Principal Proceeds are no longer so designated, (ii)Β the Loan Obligation Manager notifies the Trustee in writing that such Principal Proceeds are to be applied to the purchase of Replacement Loan Obligations in accordance with Section
Β
Β
12.2(a)Β and (iii)Β the later of (x)Β the first Business Day after the last day of the Replacement Period and (y)Β if after the last day of the Replacement Period, the last settlement date within 60 days of the last day of the Replacement Period with respect to the last Replacement Loan Obligation that the Issuer has entered into an irrevocable commitment to purchase.Β Any Principal Proceeds that are not Designated Principal Proceeds as of the Determination Date related to any Payment Date shall be applied pursuant to clauses (4)Β through (7)Β of SectionΒ 11.1(a)(ii)Β or pursuant to SectionΒ 11.1(a)(iii), as applicable.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall transfer to the Payment Account for application pursuant to SectionΒ 11.1(a)Β and in accordance with the calculations and the instructions contained in the Monthly Report prepared by the Trustee on behalf of the Issuer pursuant to SectionΒ 10.11(e), on or prior to the Business Day prior to each Payment Date, any amounts then held in the Collection Accounts other than (i)Β Interest Proceeds or Principal Proceeds received after the end of the Due Period with respect to such Payment Date and (ii)Β amounts that the Issuer is entitled to reinvest in accordance with SectionΒ 12.2 and which the Issuer so elects to reinvest in accordance with the terms of this Indenture, except that, to the extent that Principal Proceeds in the Principal Collection Account as of such date are in excess of the amounts required to be applied pursuant to the Priority of Payments up to and including the next Payment Date as shown in the Monthly Report with respect to such Payment Date, the Issuer may direct the Trustee to retain such excess amounts in the Principal Collection Account and not to transfer such excess amounts to the Payment Account and the Trustee shall do so.
Β
SectionΒ 10.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Payment Account.
Β
The Trustee shall, prior to the Closing Date, establish a Securities Account with the Custodial Securities Intermediary which shall be designated as the βPayment Account,β which shall be held in trust for the benefit of the Secured Parties and over which the Trustee shall have exclusive control and the sole right of withdrawal.Β Any and all funds at any time on deposit in, or otherwise to the credit of, the Payment Account shall be held in trust by the Trustee for the benefit of the Secured Parties.Β Except as provided in Sections 11.1 and 11.2, the only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, the Payment Account shall be (i)Β to pay the interest on and the principal on the Notes and make other payments in respect of the Notes in accordance with their terms and the provisions of this Indenture, (ii)Β to pay the Preferred Shares Paying Agent for deposit into the Preferred Share Distribution Account for distributions to the Preferred Shareholders in accordance with the terms and the provisions of the Preferred Share Paying Agency Agreement, (iii)Β upon Issuer Order, to pay other amounts specified therein, and (iv)Β otherwise to pay amounts payable pursuant to and in accordance with the terms of this Indenture, each in accordance with the Priority of Payments.Β The Trustee agrees to give the Issuer and the Co-Issuer immediate notice if it becomes aware that the Payment Account or any funds on deposit therein, or otherwise to the credit of the Payment Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process.Β Neither the Issuer nor the Co-Issuer shall have any legal, equitable or beneficial interest in the Payment Account other than in accordance with the Priority of Payments.Β The Payment Account shall remain at all times with the Corporate Trust Office or a financial institution having a long-term debt rating of at least βAa3β by Xxxxxβx or a short-term debt rating of at least βP-1β by Xxxxxβx.Β Amounts in the Payment Account shall not be invested.
Β
Β
SectionΒ 10.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Unused Proceeds Account.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall, on or prior to the Closing Date, establish a single, segregated trust account which shall be designated as the βUnused Proceeds Accountβ which shall be held in trust in the name of the Trustee for the benefit of the Secured Parties, into which the amount specified in SectionΒ 3.2(f)Β shall be deposited.Β All amounts credited from time to time to the Unused Proceeds Account pursuant to this Indenture shall be held by the Trustee as part of the Assets and shall be applied to the purposes herein provided.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee agrees to give the Issuer immediate notice if it becomes aware that the Unused Proceeds Account or any funds on deposit therein, or otherwise to the credit of the Unused Proceeds Account, becomes subject to any writ, order, judgment, warrant of attachment, execution or similar process.Β The Unused Proceeds Account shall remain at all times with the Corporate Trust Office or a financial institution having a long-term debt rating of at least βAa3β by Xxxxxβx or a short-term debt rating of at least βP-1β by Xxxxxβx.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Amounts remaining in the Unused Proceeds Account shall, on the Business Day after the Portfolio Finalization Date, be transferred by the Trustee to the Principal Collection Account (for subsequent transfer to the Payment Account) and treated as Principal Proceeds and applied in accordance with the Priority of Payments on the next Payment Date after the Portfolio Finalization Date.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β During the Post-Closing Acquisition Period, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) may by Issuer Order direct the Trustee to, and upon receipt of such Issuer Order the Trustee shall, apply amounts on deposit in the Unused Proceeds Account to acquire Additional Loan Obligations selected by the Loan Obligation Manager as permitted under and in accordance with the requirements of SectionΒ 7.18 and such Issuer Order.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β To the extent not applied pursuant to SectionΒ 7.18, the Loan Obligation Manager, on behalf of the Issuer, may direct the Trustee to, and upon such direction the Trustee shall, invest all funds in the Unused Proceeds Account in Eligible Investments designated by the Loan Obligation Manager.Β All interest and other income from such investments shall be deposited in the Unused Proceeds Account, any gain realized from such investments shall be credited to the Unused Proceeds Account, and any loss resulting from such investments shall be charged to the Unused Proceeds Account.Β The Trustee shall not in any way be held liable (except as a result of negligence, willful misconduct or bad faith) by reason of any insufficiency of the Unused Proceeds Account resulting from any loss relating to any such investment, except with respect to investments in obligations of the Trustee or any Affiliate thereof.Β If the Trustee does not receive investment instructions from an Authorized Officer of the Loan Obligation Manager, the Trustee may invest funds received in the Unused Proceeds Account in Eligible Investments of the type described in clauseΒ (ii)Β of the definition thereto.
Β
SectionΒ 10.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reserved.
Β
SectionΒ 10.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β RDD Funding Account.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In the event any RDD Obligation is purchased by the Issuer, the Trustee will establish a Securities Account with the Custodial Securities Intermediary (the βRDD
Β
Β
Funding Accountβ) which shall be held in trust for the benefit of the Secured Parties, into which the Issuer will be required to deposit the full amount of all funding amounts with respect to such RDD Obligation.Β All amounts in the RDD Funding Account shall be deposited in overnight funds in Eligible Investments and released to fulfill such commitments.Β If a RDD Obligation is sold or otherwise disposed before the full commitment thereunder has been drawn, or if excess funds remain following the termination of the funding obligation giving rise to the deposit of such funds in the RDD Funding Account, such Eligible Investments on deposit in the RDD Funding Account for the purpose of fulfilling such commitment shall be transferred to the Principal Collection Account as Principal Proceeds.Β The RDD Funding Account shall remain at all times with the Corporate Trust Office or a financial institution having a long-term debt rating from the Rating Agency at least equal to βA-β or βA2,β as applicable, or a short-term debt rating at least equal to βA-1,β βP-1β or βF1,β as applicable.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Except as provided in SectionΒ 10.6(c)Β below, funds in the RDD Funding Account shall be available solely to fund RDD Funding Advances under any RDD Obligations included in the Loan Obligations.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Loan Obligation Manager or the CLO Servicer, as applicable, shall direct the Trustee to withdraw funds from the RDD Funding Account to fund any required RDD Funding Advances for any RDD Obligation.Β Pursuant to an Issuer Order, all or a portion of the funds, as specified in such Issuer Order, on deposit in the RDD Funding Account in respect of amounts previously held on deposit in respect of unfunded commitments for RDD Obligations that have been sold or otherwise disposed of before such commitments thereunder have been drawn or as to which excess funds remain shall be transferred by the Trustee to the Collection Account as Principal Proceeds.
Β
SectionΒ 10.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Expense Account.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall prior to the Closing Date establish a Securities Account with the Custodial Securities Intermediary which shall be designated as the βExpense Accountβ which shall be held in trust in the name of the Trustee for the benefit of the Secured Parties.Β The only permitted withdrawal from or application of funds on deposit in, or otherwise standing to the credit of, the Expense Account shall be to pay (on any day other than a Payment Date,Β accrued and unpaid Company Administrative Expenses (other than accrued and unpaid expenses and indemnities payable to the Loan Obligation Manager under the Loan Obligation Management Agreement); provided that the Trustee shall be entitled (but not required) without liability on its part, to refrain from making any such payment of a Company Administrative Expense on any day other than a Payment Date if, in its reasonable determination, taking into account the Priority of Payments, the payment of such amounts is likely to leave insufficient funds available to pay in full each of the items payable prior thereto in the Priority of Payments on the next succeeding Payment Date.Β On the Closing Date, Arbor Parent or its Affiliates shall deposit into the Expense Account an amount equal to U.S.$200,000.Β On or after the first Payment Date, any amount remaining in the Expense Account may, at the election of the Loan Obligation Manager be designated as Interest Proceeds.Β On the date on which substantially all of the Issuerβs assets have been sold or otherwise disposed of, the Issuer by Issuer Order executed by an Authorized Officer of the Loan Obligation Manager shall direct the Trustee to, and, upon receipt of such Issuer Order, the Trustee shall, transfer all amounts on deposit in the Expense
Β
Β
Account to the Interest Collection Account for application pursuant to SectionΒ 11.1(a)(i)Β as Interest Proceeds.Β Xxxxxxx credited to the Expense Account may be applied on or prior to the Determination Date preceding the first Payment Date to pay amounts due in connection with the offering of the Notes.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β On each Payment Date, the Loan Obligation Manager may designate Interest Proceeds (in an amount not to exceed U.S.$100,000 on such Payment Date) after application of amounts payable pursuant to clauses (1)Β through (9)Β of SectionΒ 11.1(a)(i)Β for deposit into the Expense Account.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee agrees to give the Issuer immediate notice if it becomes aware that the Expense Account or any funds on deposit therein, or otherwise to the credit of the Expense Account, shall become subject to any writ, order, judgment, warrant of attachment, execution or similar process.Β The Issuer shall not have any legal, equitable or beneficial interest in the Expense Account.Β The Expense Account shall remain at all times with the Corporate Trust Office or a financial institution having capital and surplus of at least U.S.$200,000,000 and a long-term debt rating at least equal to βBaa1β by Xxxxxβx.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Loan Obligation Manager, on behalf of the Issuer, may direct the Trustee to, and upon such direction the Trustee shall, invest all funds in the Expense Account in Eligible Investments designated by the Loan Obligation Manager.Β All interest and other income from such investments shall be deposited in the Expense Account, any gain realized from such investments shall be credited to the Expense Account, and any loss resulting from such investments shall be charged to the Expense Account.Β The Trustee shall not in any way be held liable (except as a result of negligence, willful misconduct or bad faith) by reason of any insufficiency of such Expense Account resulting from any loss relating to any such investment, except with respect to investments in obligations of the Trustee or any Affiliate thereof.Β If the Trustee does not receive investment instructions from an Authorized Officer of the Loan Obligation Manager, the Trustee shall invest funds received in the Expense Account in Eligible Investments of the type described in clause (ii)Β of the definition thereto.
Β
SectionΒ 10.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reserved.
Β
SectionΒ 10.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Interest Advances.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β With respect to each Determination Date for which the sum of Interest Proceeds and, if applicable, Principal Proceeds, collected during the related Due Period that are available to pay interest on the Notes in accordance with the Priority of Payments, are insufficient to remit the interest due and payable with respect to the Notes on the following Payment Date as a result of interest shortfalls on the Loan Obligations (the amount of such insufficiency, an βInterest Shortfallβ), the Trustee shall provide the Advancing Agent with written notice of such Interest Shortfall no later than the close of business on the Business Day following such Determination Date.Β The Trustee shall provide the Advancing Agent with notice, prior to any funding of an Interest Advance by the Advancing Agent, of any additional interest remittances received by the Trustee after delivery of such initial notice that reduce such Interest Shortfall.Β No later than 5:00Β p.m. (New York time) on the Business Day immediately preceding the related Payment Date (but in any event no earlier than one Business Day following the
Β
Β
Advancing Agentβs receipt of notice of such Interest Shortfall), the Advancing Agent shall advance the difference between such amounts (each such advance, an βInterest Advanceβ) by deposit of an amount equal to such Interest Advance in the Payment Account, subject to a determination of recoverability by the Advancing Agent as described in SectionΒ 10.9(b), and subject to a maximum limit in respect of any Payment Date equal to the lesser of (i)Β the aggregate of such Interest Shortfalls that would otherwise occur on the Notes and (ii)Β the aggregate of the interest payments not received in respect of Loan Obligations.Β Notwithstanding the foregoing, in no circumstance will the Advancing Agent be required to make an Interest Advance in respect of a Loan Obligation to the extent that the aggregate outstanding amount of all unreimbursed Interest Advances would exceed the aggregate outstanding principal amount of the Notes.Β Any Interest Advance made by the Advancing Agent with respect to a Payment Date that is in excess of the actual Interest Shortfall for such Payment Date shall be refunded to the Advancing Agent by the Trustee on the same Business Day that such Interest Advance was made (or, if such Interest Advance is made prior to final determination by the Trustee of such Interest Shortfall, on the Business Day of such final determination).Β The Advancing Agent shall provide the Trustee written notice of a determination by the Advancing Agent that a proposed Interest Advance would constitute a Nonrecoverable Interest Advance no later than the close of business on the Business Day immediately preceding the related Payment Date (or, in the event that the Advancing Agent did not receive notice of the related Interest Shortfall on the related Determination Date, no later than the close of business on the Business Day immediately following the Advancing Agentβs receipt of notice of such Interest Shortfall).Β If the Advancing Agent shall fail to make any required Interest Advance at or prior to the time at which distributions are to be made pursuant to SectionΒ 11.1(a), the Backup Advancing Agent shall be required to make such Interest Advance, subject to a determination of recoverability by the Backup Advancing Agent as described in SectionΒ 10.9(b).Β The Backup Advancing Agent shall be entitled to conclusively rely on any affirmative determination by the Advancing Agent that an Interest Advance would constitute a Nonrecoverable Interest Advance.Β Based upon available information at the time, the Backup Advancing Agent, the Loan Obligation Manager or the Advancing Agent will provide 15 days prior notice to the Rating Agency if recovery of a Nonrecoverable Interest Advance would result in an Interest Shortfall on the next succeeding Payment Date.Β No later than the close of business on the Determination Date related to a Payment Date on which the recovery of a Nonrecoverable Interest Advance would result in an Interest Shortfall, the Loan Obligation Manager will provide the Rating Agency notice of such recovery.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything herein to the contrary, neither the Advancing Agent nor the Backup Advancing Agent, as applicable, shall be required to make any Interest Advance unless such Person determines, in its sole discretion, exercised in good faith that such Interest Advance, or such proposed Interest Advance, plus interest expected to accrue thereon at the Reimbursement Rate, will be recoverable from subsequent payments or collections with respect to all Loan Obligations and has determined in its reasonable judgment that the recovery would not result in an Interest Shortfall.Β In determining whether any proposed Interest Advance will be, or whether any Interest Advance previously made is, a Nonrecoverable Interest Advance, the Advancing Agent or the Backup Advancing Agent, as applicable, will take into account:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β amounts that may be realized on each Underlying Mortgaged Property in its βas isβ or then-current condition and occupancy;
Β
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the potential length of time before such Interest Advance may be reimbursed and the resulting degree of uncertainty with respect to such reimbursement; and
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the possibility and effects of future adverse changes with respect to the Underlying Mortgaged Properties, and
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the fact that Interest Advances are intended to provide liquidity only and not credit support to the Holders of the ClassΒ A Notes and the ClassΒ B Notes.
Β
For purposes of any such determination of whether an Interest Advance constitutes or would constitute a Nonrecoverable Interest Advance, an Interest Advance will be deemed to be nonrecoverable if the Advancing Agent or the Backup Advancing Agent, as applicable, determines that future Interest Proceeds and Principal Proceeds may be ultimately insufficient to fully reimburse such Interest Advance, plus interest thereon at the Reimbursement Rate within a reasonable period of time.Β Absent bad faith, the determination by the Advancing Agent or the Backup Advancing Agent, as applicable, as to the nonrecoverability of any Interest Advance shall be conclusive and binding on the Holders of the Notes.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each of the Advancing Agent and the Backup Advancing Agent will each be entitled to recover any previously unreimbursed Interest Advance made by it (including any Nonrecoverable Interest Advance), together with interest thereon, first, from Interest Proceeds and second (to the extent that there are insufficient Interest Proceeds for such reimbursement), from Principal Proceeds to the extent that such reimbursement would not trigger an additional Interest Shortfall; provided that if at any time an Interest Advance is determined to be a Nonrecoverable Interest Advance, the Advancing Agent or the Backup Advancing Agent shall be entitled to recover all outstanding Interest Advances from the Collection Accounts on any Business Day during any Interest Accrual Period prior to the related Determination Date (or on a Payment Date prior to any payment of interest on or principal of the Notes in accordance with the Priority of Payments).Β The Advancing Agent shall be permitted (but not obligated) to defer or otherwise structure the timing of recoveries of Nonrecoverable Interest Advances in such manner as the Advancing Agent determines is in the best interest of the ClassΒ A Notes and the ClassΒ B Notes, as a collective whole, which may include being reimbursed for Nonrecoverable Interest Advances in installments.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Advancing Agent and the Backup Advancing Agent will each be entitled with respect to any Interest Advance made by it (including Nonrecoverable Interest Advances) to interest accrued on the amount of such Interest Advance for so long as it is outstanding at the Reimbursement Rate.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The obligations of the Advancing Agent and the Backup Advancing Agent to make Interest Advances in respect of the Loan Obligations will continue through the Stated Maturity Date, unless the ClassΒ A Notes and the ClassΒ B Notes are previously redeemed or repaid in full.
Β
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In no event will the Advancing Agent, in its capacity as such hereunder or the Trustee, in its capacity as Backup Advancing Agent hereunder, be required to advance any amounts in respect of payments of principal of any Loan Obligation.
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In consideration of the performance of its obligations hereunder, the Advancing Agent shall be entitled to receive, at the times set forth herein and subject to the Priority of Payments, to the extent funds are available therefor, the Advancing Agent Fee.Β In consideration of the Backup Advancing Agentβs obligations hereunder, the Backup Advancing Agent shall be entitled to receive, at the times set forth herein and subject to the Priority of Payments, to the extent funds are available therefor, the Backup Advancing Agent Fee.Β If the Backup Advancing Agent makes an Interest Advance that the Advancing Agent failed to make and did not determine to be nonrecoverable, the Backup Advancing Agent will be entitled to receive the Advancing Agentβs Fee for so long as such Interest Advance is outstanding.
Β
(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The determination by the Advancing Agent or the Backup Advancing Agent, as applicable, (i)Β that it has made a Nonrecoverable Interest Advance or (ii)Β that any proposed Interest Advance, if made, would constitute a Nonrecoverable Interest Advance, shall be evidenced by an Officerβs Certificate delivered promptly to the Trustee (or, if applicable, retained thereby), the Issuer and Moodyβs, setting forth the basis for such determination; provided that failure to give such notice, or any defect therein, shall not impair or affect the validity of, or the Advancing Agent or the Backup Advancing Agent, entitlement to reimbursement with respect to, any Interest Advance.
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If a Scheduled Distribution on any Loan Obligation is not paid to the Trustee on the Due Date therefor, the Trustee shall provide the Advancing Agent with notice of such default on the Business Day immediately following such default.Β In addition, upon request, the Trustee shall provide the Advancing Agent (either electronically or in hard-copy format), with copies of all reports received from any trustee, trust administrator, master servicer or similar administrative entity with respect to the Loan Obligations and the Trustee shall promptly make available to the Advancing Agent any other information reasonably available to the Trustee by reason of its acting as Trustee hereunder to permit the Advancing Agent to make a determination of recoverability with respect to any Interest Advance and to otherwise perform its advancing functions under this Indenture.
Β
SectionΒ 10.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reports by Parties.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall supply, in a timely fashion, to the Issuer, the Co-Issuer, the Preferred Shares Paying Agent and the Loan Obligation Manager any information regularly maintained by the Trustee that the Issuer, the Co-Issuer, the Preferred Shares Paying Agent or the Loan Obligation Manager may from time to time request with respect to the Assets or the Accounts and provide any other information reasonably available to the Trustee by reason of its acting as Trustee hereunder and required to be provided by SectionΒ 10.11 or to permit the Loan Obligation Manager to perform its obligations under the Loan Obligation Management Agreement.Β The Trustee shall forward to the Loan Obligation Manager copies of notices and other writings received by it from the borrower with respect to any Loan Obligation advising the holders of such Loan Obligation of any rights that the holders might have with respect thereto as well as all periodic financial reports received from such borrower with respect to such borrower.
Β
Β
Each of the Issuer and Loan Obligation Manager shall promptly forward to the Trustee any information in their possession or reasonably available to them concerning any of the Assets that the Trustee reasonably may request or that reasonably may be necessary to enable the Trustee to prepare any report or perform any duty or function on its part to be performed under the terms of this Indenture.
Β
SectionΒ 10.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reports; Accountings.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Collateral Administrator shall monitor the Assets on an ongoing basis and provide access to the information maintained by the Collateral Administrator to, and upon reasonable request of the Loan Obligation Manager, shall assist the Loan Obligation Manager in performing its duties under the Loan Obligation Management Agreement, each in accordance with this Indenture.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Collateral Administrator shall perform the following functions during the term of this Indenture:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β create and maintain a database with respect to the Loan Obligations (the βDatabaseβ);
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β permit access to the information contained in the Database by the Loan Obligation Manager and the Issuer;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β on a monthly basis monitor and update the Database for ratings changes;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β update the Database for Loan Obligations or Eligible Investments acquired or sold or otherwise disposed of;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β prepare and arrange for the delivery to the Rating Agency, the Loan Obligation Manager, the Placement Agent and upon request therefor, any Holder of a Note shown on the Note Registrar, any Preferred Shareholder shown on the register maintained by the Share Registrar;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β prepare and arrange for the delivery to the Loan Obligation Manager and upon request therefor, any Holder of a Note shown on the Notes Register, any Preferred Shareholder shown on the register maintained by the Share Registrar, the firm of Independent certified public accountants appointed pursuant to SectionΒ 10.13(a)Β hereof, the Rating Agency, the Depository (with instructions to forward it to each of its participants who are holders of any Notes);
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β assist in preparing and arrange for the delivery to the Loan Obligation Manager of the Redemption Date Statement;
Β
(viii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β arrange for the delivery to the Rating Agency of all information or reports required under this Indenture, including, but not limited to, providing Moodyβs with (A)Β written notice of (1)Β any breaches under any of the Transaction Documents and (2)Β the termination or change of any parties to the Transaction Documents, in each case, for which the Collateral Administrator has received prior written notice pursuant to the terms
Β
Β
of the Transaction Document and (B)Β each Monthly Report in Microsoft Excel spreadsheet format; and
Β
(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β assist the Independent certified public accountants in the preparation of those reports required under SectionΒ 10.13 hereof by providing access to the information contained in the Database.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Collateral Administrator, on behalf of the Issuer, shall compile and provide or make available on its website initially located at xxx.xxxxxxxxxxxxxxxxxxxxxx.xxxxxx.xxx to the Rating Agency, the Trustee, the Loan Obligation Manager, the Placement Agent and upon request therefor, any Holder of a Note shown on the Notes Register, any Preferred Shareholder shown on the register maintained by the Share Registrar, the firm of Independent certified public accountants appointed pursuant to SectionΒ 10.13(a)Β hereof and the Depositary, on each Payment Date, determined as of the preceding Determination Date, a monthly report (the βMonthly Reportβ).Β The Monthly Report shall contain the following information and instructions with respect to the Assets included in the Assets based in part on information provided by the Loan Obligation Manager:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Aggregate Principal Balance of all Loan Obligations, together with a calculation, in reasonable detail, of the sum of (A)Β the Aggregate Principal Balance of all Loan Obligations (other than Defaulted Obligations) plus (B)Β the Principal Balance of each Asset which is a Defaulted Obligation;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the balance of all Eligible Investments and Cash in each of the Interest Collection Account, the Principal Collection Account, the RDD Funding Account and the Expense Account;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the nature, source and amount of any proceeds in the Collection Accounts, including Interest Proceeds, Principal Proceeds, Unscheduled Principal Payments and Sale Proceeds, received since the date of determination of the last Monthly Report;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β with respect to each Loan Obligation and each Eligible Investment that is part of the Assets, its Principal Balance, annual interest rate, average life, borrower and Xxxxxβx Rating;
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the identity of each Loan Obligation that was sold or disposed of pursuant to SectionΒ 12.1 (indicating whether such Loan Obligation is a Defaulted Obligation or a Credit Risk Obligation (in each case, as reported in writing to the Issuer by the Loan Obligation Manager) and whether such Loan Obligation was sold pursuant to SectionΒ 12.1(a)(i)Β or (ii)) or Granted to the Trustee since the date of determination of the most recent Monthly Report;
Β
(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the identity of each Loan Obligation which became a Defaulted Obligation or a Credit Risk Obligation since the date of determination of the last Monthly Report;
Β
(vii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Aggregate Principal Balance of all Loan Obligations that are backed or otherwise invested in properties located in any single U.S. state (for each such state) based on information provided by the Loan Obligation Manager;
Β
Β
(viii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Par Value Ratio and the Interest Coverage Ratio, and a statement as to whether the Interest Coverage Test and the Par Value Test are satisfied;
Β
(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Weighted Average Spread;
Β
(x)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β based upon information supplied by the Loan Obligation Manager, the Average Life of each Loan Obligation and the Weighted Average Life of all the Loan Obligations;
Β
(xi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β based upon information supplied by the Loan Obligation Manager, the Xxxxxβx Rating Factor of each Loan Obligation and the Xxxxxβx Weighted Average Rating Factor;
Β
(xii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Principal Balance of each Loan Obligation that is on credit watch with negative implications;
Β
(xiii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Principal Balance of each Loan Obligation that is on credit watch with positive implications;
Β
(xiv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the amount of the current portion and the unpaid and unwaived portion, if any, of the Loan Obligation Manager Fee with respect to the related Payment Date;
Β
(xv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the amount of all RDD Funding Advances that were advanced;
Β
(xvi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the percentage (based on the outstanding Aggregate Principal Balances of the Loan Obligations) of the Loan Obligations which have a maturity date occurring on or prior to each Payment Date;
Β
(xvii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Principal Xxxxxxxx and Interest Proceeds received by the Issuer received in the related Due Period;
Β
(xviii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Net Outstanding Portfolio Balance as of the close of business on the last Business Day of each Due Period after giving effect to the Principal Proceeds as of the last Business Day of such Due Period, principal collections received from Loan Obligations in the related Due Period, the reinvestment of such proceeds in Eligible Investments during such Due Period and the Loan Obligations that were released during such Due Period;
Β
(xix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Aggregate Outstanding Amount of the Notes of each ClassΒ at the beginning of the Due Period and such Aggregate Outstanding Amount as a percentage of the original Aggregate Outstanding Amount of the Notes of such Class, the amount of principal payments to be made on the Notes of each ClassΒ on the next Payment Date, the Aggregate Outstanding Amount of the Notes of each ClassΒ after giving effect to the payment of principal on the related Payment Date and such Aggregate Outstanding Amount as a percentage of the original Aggregate Outstanding Amount of the Notes of such Class;
Β
Β
(xx)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the ClassΒ A Interest Distribution Amount and the ClassΒ B Interest Distribution Amount for the related Payment Date and the aggregate amount paid for all prior Payment Dates in respect of such amounts;
Β
(xxi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β with the assistance of the Loan Obligation Manager, the Company Administrative Expenses on an itemized basis, the Loan Obligation Manager Fee payable by the Issuer on the related Payment Date;
Β
(xxii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β with the assistance of the Loan Obligation Manager as set forth in SectionΒ 10.11(f), (A)Β the balance on deposit in the Interest Collection Account and the Principal Collection Account at the end of the related Due Period, (B)Β the amounts payable from the Collection Accounts to the Payment Account in order to make payments pursuant to SectionΒ 11.1(a)Β on the related Payment Date (the amounts payable pursuant to each such clause to be set forth and identified separately) and (C)Β the balance of Principal Proceeds and the balance of Interest Proceeds remaining in the Collection Accounts immediately after all payments and deposits to be made on the related Payment Date;
Β
(xxiii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the amount to be paid to the Advancing Agent or the Backup Advancing Agent, as applicable, as reimbursement of Interest Advances and Reimbursement Interest and calculate the amount of the Nonrecoverable Interest Advances to be paid to the Advancing Agent or the Backup Advancing Agent, as applicable;
Β
(xxiv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the amount on deposit in the Expense Account, the Unused Proceeds Account and the RDD Funding Account;
Β
(xxv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the nature, source and amount of any proceeds in the Collection Accounts, including Interest Proceeds, Principal Proceeds, Unscheduled Principal Payments and Sale Proceeds, received since the date of determination of the last Monthly Report; and
Β
(xxvi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β with respect to each Loan Obligation and each Eligible Investment that is part of the Assets, its Principal Balance, annual interest rate, average life, issuer and Xxxxxβx Rating;
Β
(xxvii)Β Β Β Β Β Β Β Β Β Β Β Β the identity of each Loan Obligation that was sold or disposed of pursuant to SectionΒ 12.1 (indicating whether such Loan Obligation is a Defaulted Obligation or Credit Risk Obligation or otherwise (in each case, as reported in writing to the Issuer by the Loan Obligation Manager) and whether such Loan Obligation was sold pursuant to SectionΒ 12.1(a)Β or (b)) or Granted to the Trustee since the date of determination of the most recent Monthly Report;
Β
(xxviii)Β Β Β Β Β Β Β Β Β the identity of each Loan Obligation which became a Defaulted Obligation or a Credit Risk Obligation since the date of determination of the last Monthly Report; and
Β
(xxix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β subject to the availability of such information to the Loan Obligation Manager and the delivery of such information by the Loan Obligation Manager to the Collateral Administrator, with respect to each Loan Obligation on a semi-annual basis,
Β
Β
the net cash flow on each real property underlying or related to such Loan Obligation; and
Β
(xxx)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β such other information as the Loan Obligation Manager, the Collateral Administrator or the Trustee may reasonably request.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Collateral Administrator, on behalf of the Issuer and upon request of the Loan Obligation Manager shall calculate the Par Value Ratio and the Interest Coverage Ratio in respect of each Measurement Date and indicate pursuant to clause (viii)Β of each Monthly Report whether the Par Value Test and the Interest Coverage Test are met and report to the Issuer, the Co-Issuer and the Loan Obligation Manager on each Measurement Date.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Upon receipt of each Monthly Report and each Redemption Date Statement, the Loan Obligation Manager shall compare the information contained in its records with respect to the Assets and shall, within five Business Days after receipt of each such Monthly Report or such Redemption Date Statement, notify the Issuer and the Collateral Administrator whether such information contained in the Monthly Report or the Redemption Date Statement, as the case may be, conforms to the information maintained by the Loan Obligation Manager with respect to the Assets, or detail any discrepancies.Β If any discrepancy exists, the Collateral Administrator, the Issuer and the Loan Obligation Manager shall attempt to resolve the discrepancy.Β If such discrepancy cannot be promptly resolved, the Collateral Administrator shall cause the firm of Independent certified public accountants appointed by the Issuer pursuant to SectionΒ 10.13 hereof to review such Monthly Report or Redemption Date Statement, as the case may be, and the Loan Obligation Managerβs records and the Collateral Administratorβs records to determine the cause of such discrepancy.Β If such review reveals an error in the Monthly Report or Redemption Date Statement, as the case may be, or the Collateral Administratorβs or the Loan Obligation Managerβs records, the Monthly Report or Redemption Date Statement, as the case may be, or the Collateral Administratorβs or the Loan Obligation Managerβs records, shall be revised accordingly and, as so revised, shall be utilized in making all calculations pursuant to this Indenture.Β The Rating Agency (in each case only so long as any ClassΒ of Notes is rated), the Placement Agent and the Loan Obligation Manager shall be notified in writing of any such revisions by the Collateral Administrator, on behalf of the Issuer.
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β All information made available on the Collateral Administratorβs website will be restricted and the Collateral Administrator will only provide access to such reports to those parties entitled thereto pursuant to this Indenture.Β In connection with providing access to its website, the Collateral Administrator may require registration and the acceptance of a disclaimer.
Β
The Monthly Report shall also contain the following statements:
Β
βInstruction to Participant:Β Please send
this to the beneficial owners of the Notesβ
Β
Reminder to Owners of each ClassΒ of Notes:
Β
Each owner or beneficial owner of Notes must be (A)Β either (1)Β a U.S. Person who is a QIB or (2)Β solely with respect to Notes issued as Definitive Notes, a U.S. Person who is
Β
Β
an IAI that is, in each case, also a Qualified Purchaser as defined by the Investment Company Act of 1940 or not a U.S. Person, and if a U.S. Person, can represent as follows:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is acting for its own account or for the account of another person who is a QIB and a Qualified Purchaser that is not included in (i)Β or (ii)Β above;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it is not formed for the purpose of investing in the Notes;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it, and each account for which it holds the Notes, shall hold at least the minimum denomination therefor; and
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β it will provide notice of these transfer restrictions to any transferee from it.
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each Monthly Report (after approval by the Loan Obligation Manager after giving effect to any revisions thereto in accordance with SectionΒ 10.11(f)) shall constitute instructions from the Loan Obligation Manager, on behalf of the Issuer, to the Trustee to transfer funds from the Collection Accounts to the Payment Account pursuant to SectionΒ 10.2(d)Β and to withdraw on the related Payment Date from the Payment Account and pay or transfer the amounts set forth in the Monthly Report, as applicable, in the manner specified, and in accordance with the priorities established, in SectionΒ 11.1 hereof.
Β
(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Not more than five Business Days after receiving an Issuer Request requesting information regarding a redemption of the Notes of a ClassΒ as of a proposed Redemption Date set forth in such Issuer Request, the Trustee shall compute the following information and provide such information in a statement (the βRedemption Date Statementβ) delivered to the Loan Obligation Manager (which shall review such statement in the manner provided for in SectionΒ 10.11(f)), the Preferred Shares Paying Agent:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Aggregate Outstanding Amount of the Notes of the ClassΒ or Classes to be redeemed as of such Redemption Date;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the amount of accrued interest due on such Notes as of the last day of the Interest Accrual Period immediately preceding such Redemption Date;
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Redemption Price;
Β
(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the sum of all amounts due and unpaid under SectionΒ 11.1(a)Β (other than amounts payable on the Notes being redeemed or to the Noteholders thereof); and
Β
(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the amount in the Accounts (other than the Preferred Share Distribution Account) available for application to the redemption of such Notes.
Β
SectionΒ 10.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Release of Loan Obligations; Release of Assets.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If no Event of Default has occurred and is continuing and subject to ArticleΒ 12 hereof, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) may direct the Trustee to release such Pledged Loan Obligation from the lien of this Indenture, by Issuer Order delivered to the Trustee at least two Business Days prior to the settlement date for any sale
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of a Pledged Loan Obligation certifying that (i)Β it has sold such Pledged Loan Obligation pursuant to and in compliance with ArticleΒ 12 or (ii)Β in the case of a redemption pursuant to SectionΒ 9.1, the proceeds from any such sale of Loan Obligations are sufficient to redeem the Notes pursuant to SectionΒ 9.1, and, upon receipt of such Issuer Order, the Trustee shall deliver any such Pledged Loan Obligation, if in physical form, duly endorsed to the broker or purchaser designated in such Issuer Order or to the Issuer if so requested in the Issuer Order, or, if such Pledged Loan Obligation is represented by a Security Entitlement, cause an appropriate transfer thereof to be made, in each case against receipt of the sales price therefor as set forth in such Issuer Order.Β If requested, the Trustee may deliver any such Pledged Loan Obligation in physical form for examination (prior to receipt of the sales proceeds) in accordance with street delivery custom.Β The Trustee shall (i)Β deliver any agreements and other documents in its possession relating to such Pledged Loan Obligation and (ii)Β if applicable, duly assign each such agreement and other document, in each case, to the broker or purchaser designated in such Issuer Order or to the Issuer if so requested in the Issuer Order.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer (or the Loan Obligation Manager on behalf of the Issuer) may, by Issuer Order, delivered to the Trustee at least three Business Days prior to the date set for redemption or payment in full of a Pledged Loan Obligation, certifying that such Pledged Loan Obligation is being paid in full, direct the Trustee, or at the Trusteeβs instructions, the Custodial Securities Intermediary, to deliver such Pledged Loan Obligation and the related Loan Obligation File therefor on or before the date set for redemption or payment, in each case against receipt of the applicable redemption price or payment in full thereof.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β With respect to any Loan Obligation subject to a workout or restructured, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) may, by Issuer Order delivered to the Trustee at least two Business Days prior to the date set for an exchange, tender or sale, certifying that a Loan Obligation is subject to a workout or restructuring and setting forth in reasonable detail the procedure for response thereto, direct the Trustee or at the Trusteeβs instructions, the Custodial Securities Intermediary, to deliver any Assets in accordance with such Issuer Order, in each case against receipt of payment therefor.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall deposit any proceeds received by it from the disposition of a Pledged Loan Obligation in the Principal Collection Account unless simultaneously applied to the purchase of Replacement Loan Obligations, subject to the Replacement Criteria, or Eligible Investments under and in accordance with the requirements of ArticleΒ 12 and this ArticleΒ 10.Β Neither the Trustee nor the Custodial Securities Intermediary shall be responsible for any loss resulting from delivery or transfer of any such proceeds prior to receipt of payment in accordance herewith.
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Trustee shall, upon receipt of an Issuer Order at such time as there are no Notes Outstanding and all obligations of the Issuer hereunder have been satisfied, release the Assets from the lien of this Indenture.
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Upon receiving actual notice of any offer or any request for a waiver, consent, amendment or other modification with respect to any Loan Obligation, the Trustee on behalf of the Issuer will promptly notify the Loan Obligation Manager and the CLO Servicer of such request, and the Trustee shall grant any waiver or consent, and enter into any amendment or
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other modification as instructed in writing by the CLO Servicer in accordance with the Servicing Agreement.Β In the case of any modification or amendment that results in the release of the related Loan Obligation, notwithstanding anything to the contrary in SectionΒ 5.5(a), the Trustee shall release of the related Loan Obligation and the related Loan Obligation File from the lien of this Indenture upon the written instruction of the CLO Servicer in accordance with the Servicing Agreement.Β In the absence of such instruction from the CLO Servicer, the Trustee shall have no obligation to take any such action.
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SectionΒ 10.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reports by Independent Accountants.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β On or about the Closing Date, the Issuer shall appoint a firm of Independent certified public accountants of recognized national reputation for purposes of preparing and delivering the reports or certificates of such accountants required by this Indenture.Β The Loan Obligation Manager, on behalf of the Issuer, shall have the right to remove such firm or any successor firm.Β Upon any resignation by or removal of such firm, the Loan Obligation Manager, on behalf of the Issuer, shall promptly appoint, by Issuer Order delivered to the Trustee, a successor thereto that shall also be a firm of Independent certified public accountants of recognized national reputation.Β If the Loan Obligation Manager, on behalf of the Issuer, shall fail to appoint a successor to a firm of Independent certified public accountants which has resigned or been removed, within 30 days after such resignation or removal, the Issuer shall promptly notify the Trustee of such failure in writing. If the Loan Obligation Manager, on behalf of the Issuer, shall not have appointed a successor within ten days thereafter, the Trustee shall promptly appoint a successor firm of Independent certified public accountants of recognized national reputation.Β The fees of such Independent certified public accountants and its successor shall be payable by the Issuer as provided in the Priority of Payments.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Within 60 days after DecemberΒ 31 of each year (commencing with DecemberΒ 31, 2013), the Issuer shall cause to be delivered to the Trustee and the Loan Obligation Manager an Accountantsβ Report specifying the procedures applied and the associated findings with respect to the Monthly Reports and any Redemption Date Statements prepared in the year ending on such date.Β If at any time a successor firm of Independent certified public accountants is appointed, prior to the Payment Date following the date of such appointment), the Issuer shall deliver to the Trustee a draft of an (or form of) Accountantβs Report specifying in advance the procedures that such firm will be applying in making the aforementioned findings throughout the term of its service as accountants to the Issuer.Β The Trustee shall promptly forward a copy of such draft of an (or form of) Accountantβs Report to the Loan Obligation Manager.
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SectionΒ 10.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reports to Rating Agency.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In addition to the information and reports specifically required to be provided to the Rating Agency pursuant to the terms of this Indenture, the Trustee shall provide the Rating Agency with all information or reports delivered by the Trustee hereunder, and such additional information as the Rating Agency may from time to time reasonably request and the Trustee determines in its sole discretion may be obtained and provided without unreasonable burden or expense.Β The Issuer shall promptly notify the Trustee and the Preferred Shares Paying
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Agent if a Rating Agencyβs rating of any ClassΒ of Notes has been, or it is known by the Issuer that such rating will be, downgraded or withdrawn.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall provide the Rating Agency with all information and reports delivered to the Trustee hereunder.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β All additional reports to be sent to the Rating Agency pursuant to clause (a)Β above shall be reviewed prior to such transmission by the Loan Obligation Manager.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer shall cause to be provided all 17g-5 Information to the Rating Agency in the manner specified in SectionΒ 14.13.
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For the avoidance of doubt, any such information referred to in this SectionΒ 10.14 shall not include any of the Accountantsβ Reports.
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SectionΒ 10.15Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Certain Procedures.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β For so long as the Notes may be transferred only in accordance with RuleΒ 144A or another exemption from registration under the Securities Act, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) will ensure that any Bloomberg screen containing information about the RuleΒ 144A Global Securities includes the following (or similar) language:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the βNote Boxβ on the bottom of the βSecurity Displayβ pageΒ describing the RuleΒ 144A Global Securities will state: βIssβd Under 144A/3c7β;
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the βSecurity Displayβ pageΒ will have the flashing red indicator βSee Other Available Informationβ; and
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the indicator will link to the βAdditional Security Informationβ page, which will state that the Notes βare being offered in reliance on the exemption from registration under RuleΒ 144A of the Securities Act to persons who are both (i) qualified institutional buyers (as defined in RuleΒ 144A under the Securities Act) and (ii)Β qualified purchasers (as defined under SectionΒ 3(c)(7)Β under the 1940 Act of 1940).
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β For so long as the RuleΒ 144A Global Securities are registered in the name of DTC or its nominee, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) will instruct DTC to take these or similar steps with respect to the RuleΒ 144A Global Securities:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the DTC 20-character security descriptor and 48-character additional descriptor will indicate with marker β3c7β that sales are limited to (i)Β QIBs and (ii)Β Qualified Purchasers;
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β where the DTC deliver order ticket sent to purchasers by DTC after settlement is physical, it will have the 20-character security descriptor printed on it.Β Where the DTC deliver order ticket is electronic, it will have a β3c7β indicator and a related user manual for participants, which will contain a description of the relevant restriction; and
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β DTC will send an βImportant Noticeβ outlining the 3(c)(7)Β restrictions applicable to the RuleΒ 144A Global Securities to all DTC participants in connection with the initial offering of Notes by the Co-Issuers.
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ARTICLEΒ 11
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APPLICATION OF AMOUNTS
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SectionΒ 11.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Disbursements of Amounts from Payment Account.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding any other provision in this Indenture, but subject to the other subsections of this SectionΒ 11.1 hereof, on each Payment Date, the Trustee shall disburse amounts transferred to the Payment Account from the Interest Collection Account and the Principal Collection Account pursuant to SectionΒ 10.2 hereof in accordance with the following priorities (the βPriority of Paymentsβ):
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Interest Proceeds. On each Payment Date that is not a Redemption Date or a Payment Date following an acceleration of the Notes as a result of the occurrence and continuation of an Event of Default,Β Interest Proceeds with respect to the related Due Period shall be distributed in the following order of priority:
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(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of taxes and filing fees (including any registered office and government fees) owed by the Issuer, if any;
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(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (a)Β first, to the extent not previously reimbursed, to the Advancing Agent or the Backup Advancing Agent, the aggregate amount of any Nonrecoverable Interest Advances due and payable to such party, (b) second, to the Advancing Agent or the Backup Advancing Agent (if the Advancing Agent has failed to make any Interest Advance required to be made by the Advancing Agent pursuant to the terms hereof), the Advancing Agent Fee and any previously due but unpaid Advancing Agent Fee (unless waived by the Advancing Agent) (provided that the Advancing Agent or Backup Advancing Agent, as applicable, has not failed to make any Interest Advance required to be made in respect of any Payment Date pursuant to the terms of this Indenture) and (c)Β third, to the Advancing Agent and the Backup Advancing Agent, (i)Β to the extent due and payable to such party, Reimbursement Interest and (ii)Β reimbursement of any outstanding Interest Advances not (in the case of this clause (ii)) to exceed the amount that would result in an Interest Shortfall with respect to such Payment Date;
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(3)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β (a)Β first, to the Backup Advancing Agent, the Backup Advancing Agent Fee and any previously due but unpaid Backup Advancing Agent Fees (provided that the Backup Advancing Agent has not failed to make any Interest Advance required to be made in respect of any Payment Date pursuant to the terms of this Indenture), (b) second, to the payment to the Trustee of the accrued and unpaid fees in respect of its services equal to the greater of (i)Β 0.019% per annum of the Aggregate Collateral Balance and (ii)Β U.S.$7,500 per annum, (c)
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third, to the payment of other accrued and unpaid Company Administrative Expenses of the Trustee, the Collateral Administrator, the Custodial Securities Intermediary, the Paying Agent, the Preferred Shares Paying Agent and the Calculation Agent, (d)Β fourth, to the CLO Servicer for payment of the Servicing Fee under the Servicing Agreement (but only in the event that Arbor Commercial Mortgage LLC or an affiliate thereof is not acting as the servicer of the Loan Obligations and only to the extent such fees were not previously retained by the CLO Servicer out of amounts collected in respect of the Loan Obligations in accordance with the terms of the Servicing Agreement) and (e)Β fifth, to the payment of any other accrued and unpaid Company Administrative Expenses, the aggregate of all such amounts in clauses (c), (d)Β and (e)Β above (including such amounts paid since the previous Payment Date from the Expense Account) not to exceed the greater of (x)Β 0.10% per annum of the Aggregate Collateral Balance and (y) U.S.$125,000 per annum;
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(4)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of the Loan Obligation Manager Fee and any previously due but unpaid Loan Obligation Manager Fees (but only in the event that Arbor Realty Collateral Management, LLC or an affiliate thereof is not acting as Loan Obligation Manager);
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(5)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of the ClassΒ A Interest Distribution Amount, plus, any ClassΒ A Defaulted Interest Amount;
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(6)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of the ClassΒ B Interest Distribution Amount, plus, any ClassΒ B Defaulted Interest Amount;
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(7)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β if either of the Note Protection Tests are not satisfied as of the Determination Date relating to such Payment Date, to the payment of, first, principal on the ClassΒ A Notes and, second, principal on the ClassΒ B Notes, in each case to the extent necessary to cause each of the Note Protection Tests to be satisfied or, if sooner, until the ClassΒ A Notes and ClassΒ B Notes have been paid in full;
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(8)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β on each Payment Date following the occurrence of a Rating Confirmation Failure, to the payment of principal of each ClassΒ of Notes, (i)Β first, to the ClassΒ A Notes and (ii)Β second, to the ClassΒ B Notes, in each case until the rating assigned on the Closing Date to each ClassΒ of Notes has been reinstated or such ClassΒ has been paid in full;
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(9)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of any Company Administrative Expenses not paid pursuant to clause (3)Β above in the order specified therein;
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(10)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β upon direction of the Loan Obligation Manager, for deposit into the Expense Account in an amount not to exceed U.S.$100,000 in respect of such Payment Date; and
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(11)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any remaining Interest Proceeds to be released from the lien of this Indenture and paid (upon standing order of the Issuer) to the Preferred Shares
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Paying Agent for deposit into the Preferred Share Distribution Account for distribution to the Holder of the Preferred Shares as payments of the Preferred Shares Distribution Amount subject to and in accordance with the provisions of the Preferred Share Paying Agency Agreement.
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Principal Proceeds. On each Payment Date that is not a Redemption Date or a Payment Date following an acceleration of the Notes as a result of the occurrence and continuation of an Event of Default, Principal Proceeds with respect to the related Due Period shall be distributed in the following order of priority:
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(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of the amounts referred to in clauses (1)Β through (7)Β of SectionΒ 11.1(a)(i)Β in the same order of priority specified therein, without giving effect to any limitations on amounts payable set forth therein, but only to the extent not paid in full thereunder;
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(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β on the Payment Date following the Portfolio Finalization Date, to the payment of principal, in an amount equal to all amounts remaining in the Unused Proceeds Account as of the Portfolio Finalization Date, (i) first, to the ClassΒ A Notes and (ii)Β second, to the ClassΒ B Notes, in each case until such ClassΒ has been paid in full;
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(3)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β on each Payment Date following the occurrence of a Rating Confirmation Failure, to the extent that application of Interest Proceeds pursuant to SectionΒ 11.1(a)(i)(8)Β is insufficient to cause the ratings assigned to each ClassΒ of Notes to be reinstated or any affected ClassΒ to be paid in full, to the payment of principal (i)Β first, to the ClassΒ A Notes and (ii)Β second, to the ClassΒ B Notes, in each case until the rating assigned on the Closing Date to each ClassΒ of Notes has been reinstated or such ClassΒ has been paid in full;
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(4)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β during the Replacement Period, so long as the Issuer is permitted to purchase Replacement Loan Obligations in accordance with SectionΒ 12.2, at the direction of the Loan Obligation Manager, the amount designated by the Loan Obligation Manager during the related Interest Accrual Period for payment of the purchase price of Replacement Loan Obligations;
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(5)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of principal of the ClassΒ A Notes until the ClassΒ A Notes have been paid in full;
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(6)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of principal of the ClassΒ B Notes until the ClassΒ B Notes have been paid in full; and
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(7)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any remaining Principal Proceeds to be released from the lien of this Indenture and paid (upon standing order of the Issuer) to the Preferred Shares Paying Agent for deposit into the Preferred Share Distribution Account for distribution to the Holders of the Preferred Shares as payments of the Preferred Shares Distribution Amount subject to and in accordance with the provisions of the Preferred Share Paying Agency Agreement.
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Redemption Dates During Events of Default.Β On any Redemption Date or a Payment Date following the occurrence and continuation of an acceleration of the Notes as result of an Event of Default,Β Interest Proceeds and Principal Proceeds with respect to the related Due Period will be distributed in the following order of priority:
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(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of the amounts referred to in clauses (1)Β through (4)Β of SectionΒ 11.1(a)(i)Β in the same order of priority specified therein, but without giving effect to any limitations on amounts payable set forth therein;
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(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of any out-of-pocket fees and expenses of the Issuer and Trustee (including legal fees and expenses) incurred in connection with an acceleration of the Notes following an Event of Default, including in connection with sale and liquidation of any of the Assets in connection therewith;
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(3)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of the ClassΒ A Interest Distribution Amount, plus, any ClassΒ A Defaulted Interest Amount;
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(4)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment in full of principal of the ClassΒ A Notes;
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(5)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment of the ClassΒ B Interest Distribution Amount, plus, any ClassΒ B Defaulted Interest Amount;
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(6)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β to the payment in full of principal of the ClassΒ B Notes; and
Β
(7)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any remaining Principal Proceeds to be released from the lien of this Indenture and paid (upon standing order of the Issuer) to the Preferred Shares Paying Agent for deposit into the Preferred Share Distribution Account for distribution to the holder of the Preferred Shares as payments of the Preferred Shares Distribution Amount subject to and in accordance with the provisions of the Preferred Share Paying Agency Agreement.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β On or before the Business Day prior to each Payment Date, the Issuer shall, pursuant to SectionΒ 10.2(e), remit or cause to be remitted to the Trustee for deposit in the Payment Account an amount of Cash sufficient to pay the amounts described in SectionΒ 11.1(a)Β required to be paid on such Payment Date.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If on any Payment Date the amount available in the Payment Account from amounts received in the related Due Period is insufficient to make the full amount of the disbursements required by the statements furnished by the Trustee pursuant to SectionΒ 10.11(e)Β hereof, the Trustee shall make the disbursements called for in the order and according to the priority set forth under SectionΒ 11.1(a)Β above, subject to SectionΒ 13.1 hereof, to the extent funds are available therefor.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If on any Payment Date the amount available in the Payment Account from amounts received in the related Due Period are insufficient to make the full amount of the disbursements required by any lettered clause of SectionΒ 11.1(a)(i), SectionΒ 11.1(a)(ii)Β or SectionΒ 11.1(a)(iii), the Trustee shall make the disbursements called for by such clause ratably in
Β
Β
accordance with the respective amounts of such disbursements then due and payable to the extent funds are available therefor.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In the event that Interest Proceeds or Principal Proceeds on any Payment Date are to be applied to the payment of principal of or interest on any ClassΒ of Notes pursuant to SectionΒ 11.1(a)(i), SectionΒ 11.1(a)(ii)Β or SectionΒ 11.1(a)(iii), such payments will be made to Noteholders of each applicable Class, as to each such Section, pro rata based on the amounts thereof then due and payable.
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In connection with any required payment by the Issuer to the CLO Servicer pursuant to the Servicing Agreement of any amount scheduled to be paid from time to time between Payment Dates from amounts received with respect to the Loan Obligations, such amounts shall be distributed to the CLO Servicer pursuant to the terms of the Servicing Agreement.
Β
SectionΒ 11.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Securities Accounts.
Β
All amounts held by, or deposited with the Trustee in the Collection Accounts, the Payment Account, the Expense Account, the Unused Proceeds Account or the RDD Funding Account pursuant to the provisions of this Indenture, and not invested in Eligible Investments as herein provided, shall be credited one or more securities accounts established and maintained pursuant to the Securities Account Control Agreement at the Corporate Trust Office of the Trustee, in its capacity as Custodial Securities Intermediary or at another financial institution whose long-term rating is at least equal to, βA2β by Xxxxxβx and agrees to act as a Securities Intermediary on behalf of the Trustee on behalf of the Secured Parties pursuant to an account control agreement in form and substance similar to the Securities Account Control Agreement.Β To the extent amounts deposited in such trust account exceed amounts insured by the Bank Insurance Fund or Savings Association Insurance Fund administered by the Federal Deposit Insurance Corporation, or any agencies succeeding to the insurance functions thereof, and are not fully collateralized by direct obligations of the United States of America, such excess shall be invested in Eligible Investments as directed by Issuer Order.
Β
ARTICLEΒ 12
Β
SALE OF LOAN OBLIGATIONS
Β
SectionΒ 12.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Sales of Loan Obligations.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Except as otherwise expressly permitted or required by this Indenture, the Issuer shall not sell or otherwise dispose of any Loan Obligation.Β The Loan Obligation Manager, on behalf of the Issuer, acting pursuant to the Loan Obligation Management Agreement may direct the Trustee in writing to sell:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any Defaulted Obligation at any time;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β a Buy/Sell Interest at any time; and
Β
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β any Credit Risk Obligation on or prior to the last day of the Replacement Period unless (x)Β either of the Note Protection Tests were not satisfied as of the immediately preceding Determination Date and have not been cured as of the proposed sale date or (y)Β the Trustee, upon written direction of a majority of the Controlling Class, has provided written notice to the Loan Obligation Manager that no further sales of Credit Risk Obligations shall be permitted.Β The Trustee shall sell any Loan Obligation in any sale permitted pursuant to this SectionΒ 12.1(a), as directed by the Loan Obligation Manager.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In addition with respect to any Defaulted Obligation or Credit Risk Obligation permitted to be sold pursuant to SectionΒ 12.1(a), the Loan Obligation Manager may, on behalf of the Issuer, instruct the Trustee to dispose of such Defaulted Obligation or Credit Risk Obligation in one of the following additional manners:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β by purchasing or causing its affiliate to purchase (x)Β such Credit Risk Obligation or Defaulted Obligation from the Issuer for a cash purchase price that will be equal to the sum of (i)Β the Principal Balance thereof plus (ii)Β all accrued and unpaid interest thereon (such purchase, a βCredit Risk/Defaulted Obligation Cash Purchaseβ) (and no Advisory Committee consent will be required in connection with a Credit Risk/Defaulted Obligation Cash Purchase); or
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β upon disclosure to, and with the prior consent of, the Advisory Committee, directing the Issuer to exchange such Defaulted Obligation for (1)Β a substitute Loan Obligation owned by an affiliate of the Loan Obligation Manager that satisfies the Eligibility Criteria (such Replacement Loan Obligation, an βExchange Obligationβ) or (2)Β a combination of an Exchange Obligation and cash (such exchange, a βDefaulted Obligation Exchangeβ); provided that:
Β
(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the sum of (1)Β the Principal Balance of such Exchange Obligation plus (2)Β all accrued and unpaid interest thereon plus (3)Β the Cash amount (if any) to be paid to the Issuer in respect of such exchange by such affiliate of the Loan Obligation Manager, shall be equal to or greater than:
Β
(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the sum of (1)Β the Principal Balance of the Defaulted Obligation sought to be exchanged plus (2) all accrued and unpaid interest thereon.
Β
If a Loan Obligation that is a Defaulted Obligation is not sold by the Issuer (at the direction of the Loan Obligation Manager) within three years of such Loan Obligation becoming a Defaulted Obligation, the Loan Obligation Manager, on behalf of the Issuer, will use its commercially reasonable efforts to sell such Loan Obligation as soon as commercially practicable thereafter.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β After the Issuer has notified the Trustee of an Optional Redemption, a Clean-Up Call or a Tax Redemption in accordance with SectionΒ 9.1, the Loan Obligation Manager, on behalf of the Issuer, and acting pursuant to the Loan Obligation Management Agreement, may at any time direct the Trustee in writing to sell, and the Trustee shall sell in the
Β
Β
manner directed by the Loan Obligation Manager in writing, any Loan Obligation without regard to the foregoing limitations in SectionΒ 12.1(a); provided that:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Sale Proceeds therefrom must be used to pay certain expenses and redeem all of the Notes in whole but not in part pursuant to SectionΒ 9.1, and upon any such sale the Trustee shall release such Loan Obligation pursuant to SectionΒ 10.12;
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer may not direct the Trustee to sell (and the Trustee shall not be required to release) a Loan Obligation pursuant to this SectionΒ 12.1(b)Β unless:
Β
(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Loan Obligation Manager certifies to the Trustee that, in the Loan Obligation Managerβs reasonable business judgment based on calculations included in the certification (which shall include the sales prices of the Loan Obligations), the Sale Proceeds from the sale of one or more of the Loan Obligations and all Cash and proceeds from Eligible Investments will be at least equal to the Total Redemption Price; and
Β
(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Independent accountants appointed by the Issuer pursuant to SectionΒ 10.13 shall recalculate the calculations made in clause (1)Β above and prepare an agreed-upon procedures report.
Β
(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β in connection with an Optional Redemption, a Clean-up Call or a Tax Redemption, all the Loan Obligations to be sold pursuant to this SectionΒ 12.1(b)Β must be sold in accordance with the requirements set forth in SectionΒ 9.1(e).
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In the event that any Notes remain Outstanding as of the Payment Date occurring six months prior to the Stated Maturity Date of the Notes, the Loan Obligation Manager will be required to determine whether the proceeds expected to be received on the Assets prior to the Stated Maturity Date of the Notes will be sufficient to pay in full the principal amount of (and accrued interest on) the Notes on the Stated Maturity Date.Β If the Loan Obligation Manager determines, in its sole discretion, that such proceeds will not be sufficient to pay the outstanding principal amount of and accrued interest on the Notes (a βNote Liquidation Eventβ) on the Stated Maturity Date of the Notes, the Issuer will, at the direction of the Loan Obligation Manager, be obligated to liquidate the portion of Loan Obligations sufficient to pay the remaining principal amount of and interest on the Notes on or before the Stated Maturity Date.Β The Loan Obligations to be liquidated by the Issuer will be selected by the Loan Obligation Manager.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything herein to the contrary, (a)Β in the event that a βbuy/sellβ arrangement has been initiated with respect to a Buy/Sell Interest, or (b)Β a Loan Obligation is subject to a workout and, in either case, the Loan Obligation Manager determines in accordance with the Loan Obligation Manager Servicing Standard that the sale of any such Loan Obligation is in the best interest of the Noteholders, the Loan Obligation Manager may, on behalf of the Issuer, direct the Trustee to sell such Loan Obligation in accordance with the terms of the related Underlying Instruments; provided that, in the event any such sale is to be made to an Affiliate of the Issuer or the Loan Obligation Manager, such sale may be made only upon disclosure to, and with the prior consent of, the Advisory Committee.
Β
Β
(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything herein to the contrary, the Loan Obligation Manager on behalf of the Issuer shall be permitted to sell to a Permitted Subsidiary any Sensitive Asset for consideration consisting of equity interests in such Permitted Subsidiary (or an increase in the value of equity interests already owned).
Β
(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything herein to the contrary, to the extent the Loan Obligation Manager deems necessary or advisable in accordance with the Loan Obligation Manager Standard, the Issuer may, at the direction of the Loan Obligation Manager (but only upon disclosure to, and with the prior consent of, the Advisory Committee), assign its right to purchase under a βbuy/sellβ arrangement in respect of a Loan Obligation to the Holder of the Preferred Shares or any Affiliate thereof.
Β
SectionΒ 12.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Replacement Loan Obligations.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Except as provided in SectionΒ 12.3(c), during the Replacement Period (or within 60 days after the end of the Replacement Period with respect to reinvestments made pursuant to binding commitments to purchase entered into during the Replacement Period), Principal Proceeds received may, but are not required to, be reinvested in Replacement Loan Obligations (which shall be, and hereby are upon acquisition by the Issuer, Granted to the Trustee pursuant to the Granting Clause of this Indenture) that satisfy the applicable Eligibility Criteria and the following additional criteria (the βReplacement Criteriaβ), as evidenced by an Officerβs Certificate of the Loan Obligation Manager on behalf of the Issuer delivered to the Trustee, as of the date of the commitment to purchase such Replacement Loan Obligations:
Β
(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Note Protection Tests are satisfied; and
Β
(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β no Event of Default has occurred and is continuing.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding the foregoing provisions, (i)Β Cash on deposit in the Collection Accounts may be invested in Eligible Investments, pending investment in Replacement Loan Obligations and (ii)Β if an Event of Default shall have occurred and be continuing, no Replacement Loan Obligation may be acquired unless it was the subject of a commitment entered into by the Issuer prior to the occurrence of such Event of Default.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding the foregoing provisions, at any time when ARMS Equity holds 100% of the Preferred Shares, it may contribute additional Cash and/or Loan Obligations to the Issuer so long as any such Loan Obligations satisfy the Eligibility Criteria at the time of such contribution.Β Xxxx contributed to the Issuer by ARMS Equity (whether before or after the Replacement Period) may be reinvested by the Issuer in Replacement Loan Obligations in accordance with the requirements set forth in SectionΒ 12.2(a).
Β
SectionΒ 12.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Conditions Applicable to all Transactions Involving Sale or Grant.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Any transaction effected after the Closing Date under this ArticleΒ 12 or SectionΒ 10.12 shall be conducted in accordance with the requirements of the Loan Obligation Management Agreement; provided that (1)Β the Loan Obligation Manager shall not direct the Trustee to acquire any Replacement Loan Obligation for inclusion in the Assets from the Loan Obligation Manager or any of its Affiliates as principal or to sell any Loan Obligation from the
Β
Β
Assets to the Loan Obligation Manager or any of its Affiliates as principal unless the transaction is effected in accordance with the Loan Obligation Management Agreement and (2)Β the Loan Obligation Manager shall not direct the Trustee to acquire any Replacement Loan Obligation for inclusion in the Assets from any account or portfolio for which the Loan Obligation Manager serves as investment adviser or direct the Trustee to sell any Loan Obligation to any account or portfolio for which the Loan Obligation Manager serves as investment adviser unless such transactions comply with the Loan Obligation Management Agreement and SectionΒ 206(3)Β of the Advisers Act.Β The Trustee shall have no responsibility to oversee compliance with this clause by the other parties.
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Upon any Grant pursuant to this ArticleΒ 12, all of the Issuerβs right, title and interest to the Asset or Securities shall be Granted to the Trustee pursuant to this Indenture, such Asset or Securities shall be registered in the name of the Trustee, and, if applicable, the Trustee shall receive such Pledged Loan Obligation or Securities.Β The Trustee also shall receive, not later than the date of delivery of any Loan Obligation delivered after the Closing Date, an Officerβs Certificate of the Loan Obligation Manager certifying that, as of the date of such Grant, such Grant complies with the applicable conditions of and is permitted by this ArticleΒ 12 (and setting forth, to the extent appropriate, calculations in reasonable detail necessary to determine such compliance).
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything contained in this ArticleΒ 12 to the contrary, the Issuer shall, subject to this SectionΒ 12.3(c), have the right to effect any transaction which has been consented to by the Holders of Notes evidencing 100% of the Aggregate Outstanding Amount of each and every ClassΒ of Notes (or if there are no Notes Outstanding, 100% of the Preferred Shares).
Β
SectionΒ 12.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Modifications to Moodyβs Tests.
Β
In the event Moodyβs modifies the definitions or calculations relating to any of the Eligibility Criteria or either of the Note Protection Tests (each, a βMoodyβs Test Modificationβ), in any case in order to correspond with published changes in the guidelines, methodology or standards established by Moodyβs, the Issuer may, but is under no obligation solely as a result of this SectionΒ 12.4 to, incorporate corresponding changes into this Indenture by an amendment or supplement hereto without the consent of the Holders of the Notes (except as provided below) (but with written notice to the Noteholders) or the Preferred Shares if (x)Β the Rating Agency Condition is satisfied and (y)Β written notice of such modification is delivered by the Loan Obligation Manager to the Trustee and the Holders of the Notes and Preferred Shares (which notice may be included in the next regularly scheduled report to Noteholders).Β Any such Moodyβs Test Modification shall be effected without execution of a supplemental indenture; provided, however, that such amendment shall be (i)Β evidenced by a written instrument executed and delivered by each of the Co-Issuers and the Loan Obligation Manager and delivered to the Trustee, (ii)Β accompanied by delivery by the Issuer to the Trustee of an Officerβs Certificate of the Issuer (or the Loan Obligation Manager on behalf of the Issuer) certifying that such amendment has been made pursuant to and in compliance with this SectionΒ 12.4.
Β
Β
ARTICLEΒ 13
Β
NOTEHOLDERSβ RELATIONS
Β
SectionΒ 13.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Subordination.
Β
(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Anything in this Indenture or the Notes to the contrary notwithstanding, the Issuer and the Holders of the ClassΒ B Notes agree for the benefit of the Holders of the ClassΒ A Notes that the ClassΒ B Notes (the βSubordinate Interestsβ) shall be subordinate and junior to the ClassΒ A Notes to the extent and in the manner set forth in ArticleΒ XI of this Indenture. On each Redemption Date and each Payment Date as a result of the occurrence and continuation of the acceleration of the Notes following the occurrence of an Event of Default, all accrued and unpaid interest on and outstanding principal on the ClassΒ A Notes shall be paid pursuant to SectionΒ 11.1(a)(iii)Β in full in Cash or, to the extent 100% of Holders of the ClassΒ A Notes consent, other than in Cash, before any further payment or distribution is made on account of the ClassΒ B Notes, to the extent and in the manner provided in SectionΒ 11.1(a)(iii).
Β
(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In the event that notwithstanding the provisions of this Indenture, any holder of any Subordinate Interests shall have received any payment or distribution in respect of such Subordinate Interests contrary to the provisions of this Indenture, then, unless and until all accrued and unpaid interest on and outstanding principal of the ClassΒ A Notes has been paid in full in accordance with this Indenture, such payment or distribution shall be received and held in trust for the benefit of, and shall forthwith be paid over and delivered to, the Trustee, which shall pay and deliver the same to the Holders of the ClassΒ A Notes in accordance with this Indenture.
Β
(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each Holder of ClassΒ A Notes agrees with the Trustee on behalf of the Secured Parties that such Holder shall not demand, accept, or receive any payment or distribution in respect of the ClassΒ A Notes in violation of the provisions of this Indenture including this SectionΒ 13.1.Β Nothing in this SectionΒ 13.1 shall affect the obligation of the Issuer to pay Holders of the ClassΒ A Notes any amounts due and payable hereunder.
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Each Holder of Subordinate Interests agrees with the Trustee on behalf of the Secured Parties that such Holder of Subordinate Interests shall not demand, accept, or receive any payment or distribution in respect of such Subordinate Interests in violation of the provisions of this Indenture including this SectionΒ 13.1; provided, however, that after all accrued and unpaid interest on, and principal of, the ClassΒ A Notes have been paid in full, the Holders of Subordinate Interests shall be fully subrogated to the rights of the Holders of the ClassΒ A Notes.Β Nothing in this SectionΒ 13.1 shall affect the obligation of the Issuer to pay Holders of Subordinate Interests any amounts due and payable hereunder.
Β
(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Holders of each ClassΒ of Notes agree, for the benefit of all Holders of each ClassΒ of Notes, not to cause the filing of a petition in bankruptcy against the Issuer, the Co-Issuer or any Permitted Subsidiary until the payment in full of the Notes and not before one year and a day, or if longer, the applicable preference period then in effect, has elapsed since such payment.
Β
Β
SectionΒ 13.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Standard of Conduct.
Β
In exercising any of its or their voting rights, rights to direct and consent or any other rights as a Securityholder under this Indenture, a Securityholder or Securityholders shall not have any obligation or duty to any Person or to consider or take into account the interests of any Person and shall not be liable to any Person for any action taken by it or them or at its or their direction or any failure by it or them to act or to direct that an action be taken, without regard to whether such action or inaction benefits or adversely affects any Securityholder, the Issuer, or any other Person, except for any liability to which such Securityholder may be subject to the extent the same results from such Securityholderβs taking or directing an action, or failing to take or direct an action, in bad faith or in violation of the express terms of this Indenture.
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ARTICLEΒ 14
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MISCELLANEOUS
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SectionΒ 14.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β FormΒ of Documents Delivered to the Trustee.
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In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an Authorized Officer of the Issuer or the Co-Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Authorized Officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous.Β Any such certificate of an Authorized Officer of the Issuer or the Co-Issuer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, the Issuer, the Co-Issuer, the Loan Obligation Manager or any other Person, stating that the information with respect to such factual matters is in the possession of the Issuer, the Co-Issuer, the Loan Obligation Manager or such other Person, unless such Authorized Officer of the Issuer or the Co-Issuer or such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.Β Any Opinion of Counsel also may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Authorized Officer of the Issuer or the Co-Issuer, or the Loan Obligation Manager on behalf of the Issuer, certifying as to the factual matters that form a basis for such Opinion of Counsel and stating that the information with respect to such matters is in the possession of the Issuer or the Co-Issuer or the Loan Obligation Manager on behalf of the Issuer, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
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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.
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Whenever in this Indenture it is provided that the absence of the occurrence and continuation of a Default or Event of Default is a condition precedent to the taking of any action by the Trustee at the request or direction of the Issuer or the Co-Issuer, then notwithstanding that the satisfaction of such condition is a condition precedent to the Issuerβs or the Co-Issuerβs rights to make such request or direction, the Trustee shall be protected in acting in accordance with such request or direction if it does not have knowledge of the occurrence and continuation of such Default or Event of Default as provided in SectionΒ 6.1(e).
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SectionΒ 14.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Acts of Securityholders.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Securityholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Securityholders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee, and, where it is hereby expressly required, to the Issuer and/or the Co-Issuer.Β Such instrument or instruments (and the action or actions embodied therein and evidenced thereby) are herein sometimes referred to as the βActβ of the Securityholders signing such instrument or instruments.Β Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Issuer and the Co-Issuer, if made in the manner provided in this SectionΒ 14.2.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The principal amount and registered numbers of Notes held by any Person, and the date of his holding the same, shall be proved by the Notes Register.Β The Notional Amount and registered numbers of the Preferred Shares held by any Person, and the date of his holding the same, shall be proved by the register maintained with respect to the Preferred Shares.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Any request, demand, authorization, direction, notice, consent, waiver or other action by the Securityholder shall bind such Securityholder (and any transferee thereof) of such Security and of every Security issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Trustee, the Preferred Shares Paying Agent, the Share Registrar, the Issuer or the Co-Issuer in reliance thereon, whether or not notation of such action is made upon such Security.
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SectionΒ 14.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notices,Β etc., to the Trustee, the Issuer, the Co-Issuer, the Advancing Agent, the Loan Obligation Manager, the Placement Agent and the Rating Agency.
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Any request, demand, authorization, direction, notice, consent, waiver or Act of Securityholders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Trustee by any Securityholder or by the Issuer or the Co-Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to and mailed, by certified mail, return receipt requested, hand delivered, sent by overnight courier
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service guaranteeing next day delivery or by facsimile in legible form, to the Trustee addressed to it at its Corporate Trust Office, or at any other address previously furnished in writing to the Issuer, the Co-Issuer or Securityholders by the Trustee;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Issuer by the Trustee or by any Securityholder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the Issuer addressed to it at Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd. at c/o MaplesFS Limited, P.O.Β Box 1093, Queensgate House, Grand Cayman, KY1-1104 Cayman Islands, facsimile number: 000-000-0000, Attention:Β The Directors, or at any other address previously furnished in writing to the Trustee by the Issuer, with a copy to the Loan Obligation Manager at its address set forth below;
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Co-Issuer by the Trustee or by any Securityholder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the Co-Issuer addressed to it in c/o PuglisiΒ & Associates, 000 Xxxxxxx Xxxxxx, XxxxxΒ 000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, facsimile number: (000) 000-0000, or at any other address previously furnished in writing to the Trustee by the Co-Issuer, with a copy to the Loan Obligation Manager at its address set forth below;
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Advancing Agent by the Trustee, the Issuer or the Co-Issuer shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the Advancing Agent addressed to it at Arbor Realty SR,Β Inc., 000 Xxxxx Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention:Β Executive Vice President β Structured Securitization, or at any other address previously furnished in writing to the Trustee and the Co-Issuers, with a copy to the Loan Obligation Manager at its address set forth below.
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Preferred Shares Paying Agent shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to and mailed, by certified mail, return receipt requested, hand delivered, sent by overnight courier service guaranteeing next day delivery or by facsimile in legible form, to the Preferred Shares Paying Agent addressed to it at its Corporate Trust Office or at any other address previously furnished in writing by the Trustee;
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Loan Obligation Manager by the Issuer, the Co-Issuer or the Trustee shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form, to the Loan Obligation Manager addressed to it at Arbor Realty Collateral Management, LLC, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention:Β Executive Vice President β Structured Securitization, or at any other address previously furnished in writing to the Issuer, the Co-Issuer or the Trustee;
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(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Rating Agency, as applicable, by the Issuer, the Co-Issuer, the Loan Obligation Manager or the Trustee shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, hand
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delivered, sent by overnight courier service or by facsimile in legible form, to the Rating Agency addressed to it at Xxxxxβx Investor Services,Β Inc., 0 Xxxxx Xxxxx Xxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance (or by electronic mail at xxxxxx_xxx_xxx_xxxxxxxxxx@xxxxxx.xxx) or such other address that a Rating Agency shall designate in the future; provided that any request, demand, authorization, direction, order, notice, consent, waiver or Act of Securityholders or other documents provided or permitted by this Indenture to be made upon, given or furnished to, or filed with the Rating Agency (β17g-5 Informationβ) shall be given in accordance with, and subject to, the provisions of SectionΒ 14.13 hereof; and
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(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Placement Agent by the Issuer, the Co-Issuer, the Trustee or the Loan Obligation Manager shall be sufficient for every purpose hereunder if in writing and mailed, first class postage prepaid, hand delivered, sent by overnight courier service or by facsimile in legible form to the Placement Agent at Sandler XβXxxxxΒ & Partners, L.P., 0000 Xxxxxx xx xxx Xxxxxxxx β 0xx Xxxxx, Xxx Xxxx, Xxx XxxxΒ 00000, Xxxxxxxxx:Β General Counsel, Telephone:Β (000)Β 000-0000, Fax:Β (000) 000-0000.
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SectionΒ 14.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notices to Noteholders; Waiver.
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Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of Notes of any event,
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β such notice shall be sufficiently given to Holders of Notes if in writing and mailed, first class postage prepaid, to each Holder of a Note affected by such event, at the address of such Holder as it appears in the Notes Register, not earlier than the earliest date and not later than the latest date, prescribed for the giving of such notice;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β such notice shall be in the English language; and
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β all reports or notices to Preferred Shareholders shall be sufficiently given if provided in writing and mailed, first class postage prepaid, to the Preferred Shares Paying Agent.
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Notwithstanding clause (a)Β above, a Holder of Notes may give the Trustee written notice that it is requesting that notices to it be given by facsimile transmissions and stating the facsimile number for such transmission.Β Thereafter, the Trustee shall give notices to such Holder by facsimile transmission; provided that if such notice also requests that notices be given by mail, then such notice shall also be given by mail in accordance with clause (a)Β above.
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The Trustee shall deliver to the Holders of the Notes any information or notice requested to be so delivered by at least 25% of the Holders of any ClassΒ of Notes.
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Neither the failure to mail any notice, nor any defect in any notice so mailed, to any particular Holder of a Note shall affect the sufficiency of such notice with respect to other Holders of Notes.Β In case by reason of the suspension of regular mail service or by reason of any other cause, it shall be impracticable to give such notice by mail, then such notification to Holders of Notes shall be made with the approval of the Trustee and shall constitute sufficient notification to such Holders of Notes for every purpose hereunder.
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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.Β Waivers of notice by Noteholders 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.
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In the event that, by reason of the suspension of the regular mail service as a result of a strike, work stoppageΒ or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
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SectionΒ 14.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Effect of Headings and Table of Contents.
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The ArticleΒ and SectionΒ headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
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SectionΒ 14.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Successors and Assigns.
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All covenants and agreements in this Indenture by the Issuer and the Co-Issuer shall bind their respective successors and assigns, whether so expressed or not.
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SectionΒ 14.7Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Severability.
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In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
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SectionΒ 14.8Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Benefits of Indenture.
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Nothing in this Indenture or in the Securities, expressed or implied, shall give to any Person, other than (i)Β the parties hereto and their successors hereunder and (ii)Β the Loan Obligation Manager, the Preferred Shareholders, the Preferred Shares Paying Agent, the Share Registrar and the Noteholders (each of whom, in the case of this clause (ii), shall be an express third party beneficiary hereunder), any benefit or any legal or equitable right, remedy or claim under this Indenture.
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SectionΒ 14.9Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Governing Law.
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THIS INDENTURE AND EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
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SectionΒ 14.10Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Submission to Jurisdiction.
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Each of the Issuer and the Co-Issuer hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of
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Manhattan in The City of New York in any action or proceeding arising out of or relating to the Notes or this Indenture, and each of the Issuer and the Co-Issuer hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State or federal court.Β Each of the Issuer and the Co-Issuer hereby irrevocably waives, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.Β Each of the Issuer and the Co-Issuer irrevocably consents to the service of any and all process in any action or proceeding by the mailing or delivery of copies of such process to it at the office of the Issuerβs and the Co-Issuerβs agent set forth in SectionΒ 7.2.Β Each of the Issuer and the Co-Issuer agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
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SectionΒ 14.11Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Counterparts.
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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.
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SectionΒ 14.12Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Liability of Co-Issuers.
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Notwithstanding any other terms of this Indenture, the Notes or any other agreement entered into between, inter alios, the Issuer and the Co-Issuer or otherwise, neither the Issuer nor the Co-Issuer shall have any liability whatsoever to the Co-Issuer or the Issuer, respectively, under this Indenture, the Notes, any such agreement or otherwise and, without prejudice to the generality of the foregoing, neither the Issuer nor the Co-Issuer shall be entitled to take any steps to enforce, or bring any action or proceeding, in respect of this Indenture, the Notes, any such agreement or otherwise against the other Co-Issuer or the Issuer, respectively.Β In particular, neither the Issuer nor the Co-Issuer shall be entitled to petition or take any other steps for the winding up or bankruptcy of the Co-Issuer or the Issuer, respectively or shall have any claim in respect of any assets of the Co-Issuer or the Issuer, respectively.
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SectionΒ 14.13Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β 17g-5 Information.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The parties hereto agree that all 17g-5 Information provided to the Rating Agency, or any of its officers, directors or employees, to be given or provided to the Rating Agency pursuant to, in connection with or related, directly or indirectly, to this Indenture, any other Transaction Document, the Assets or the Notes, shall be in each case furnished directly to the Rating Agency at the address set forth in clause SectionΒ 14.3(h)Β with a prior electronic copy to the Issuer or the Information Agent, as provided in SectionΒ 2A of the Collateral Administration Agreement (for forwarding to the 17g-5 Website in accordance with the Collateral Administration Agreement).Β The Co-Issuers also shall furnish such other information regarding the Co-Issuers or the Assets as may be reasonably requested by the Rating Agency to the extent such party has or can obtain such information without unreasonable effort or expense.Β Notwithstanding the foregoing, the failure to deliver such notices or copies shall not constitute an Event of Default under this Indenture.Β Any confirmation of the rating by the Rating Agency required hereunder shall be in writing.Β For the avoidance of doubt, such information under this SectionΒ 14.13 shall not include any Accountantsβ Reports.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Co-Issuers shall comply with their obligations under RuleΒ 17g-5 promulgated under the Exchange Act (βRuleΒ 17g-5β), by their or their agentβs posting on the 17g-5 Website, no later than the time such information is provided to the Rating Agency, all 17g-5 Information.Β At all times while any Notes are rated by the Rating Agency or any other NRSRO, the Co-Issuers shall engage a third-party to post 17g-5 Information to the 17g-5 Website, which shall initially be the Collateral Administrator (in such capacity, the βInformation Agentβ).
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β To the extent any of the Co-Issuers, the Trustee or the Loan Obligation Manager are engaged in oral communications with the Rating Agency, for the purposes of determining the initial credit rating of the Notes or credit rating surveillance of the Notes, the party communicating with the Rating Agency shall cause such oral communication to either be (x)Β recorded and an audio file containing the recording to be promptly delivered to the Information Agent for posting to the 17g-5 Website or (y)Β summarized in writing and the summary to be promptly delivered to the Information Agent for posting to the 17g-5 Website.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding the requirements herein, the Trustee shall have no obligation to engage in or respond to any oral communications, for the purposes of determining the initial credit rating of the Notes or undertaking credit rating surveillance of the Notes, with the Rating Agency or any of their respective officers, directors or employees.
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Notwithstanding anything to the contrary in this Indenture, a breach of this SectionΒ 14.13 shall not constitute a Default or Event of Default.
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SectionΒ 14.14Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Rating Agency Condition.
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Any request for satisfaction of the Rating Agency Condition made by the Issuer, Co-Issuer or Trustee, as applicable, pursuant to this Indenture, shall be made in writing, which writing shall contain a cover pageΒ indicating the nature of the request for satisfaction of the Rating Agency Condition, and shall contain all back-up material necessary for the Rating Agency to process such request.Β Such written request for satisfaction of the Rating Agency Condition shall be provided in electronic format to the Information Agent for posting on the 17g-5 Website in accordance with SectionΒ 14.13 hereof and after receiving actual knowledge of such posting (which may be in the form of an automatic email notification of posting delivered by the 17g-5 Website to such party), the Requesting Party shall send the request for satisfaction of such Condition to the Rating Agency in accordance with the instructions for notices set forth in SectionΒ 14.3(h)Β hereof.
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ARTICLEΒ 15
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ASSIGNMENT OF LOAN OBLIGATION PURCHASE AGREEMENTS AND LOAN MANAGEMENT AGREEMENT
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SectionΒ 15.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Assignment of Loan Obligation Purchase Agreements and the Loan Obligation Management Agreement.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer, in furtherance of the covenants of this Indenture and as security for the Notes and amounts payable to the Secured Parties hereunder and the performance and observance of the provisions hereof, hereby collaterally assigns, transfers, conveys and sets over to the Trustee, for the benefit of the Noteholders, all of the Issuerβs estate, right, title and interest in, to and under each Loan Obligation Purchase Agreement (now or hereafter entered into) and the Loan Obligation Management Agreement (each, an βArticleΒ 15 Agreementβ), including, without limitation, (i)Β the right to give all notices, consents and releases thereunder, (ii)Β the right to give all notices of termination and to take any legal action upon the breach of an obligation of a Seller or the Loan Obligation Manager thereunder, including the commencement, conduct and consummation of proceedings at law or in equity, (iii)Β the right to receive all notices, accountings, consents, releases and statements thereunder and (iv)Β the right to do any and all other things whatsoever that the Issuer is or may be entitled to do thereunder; provided, however, that the Trustee hereby grants the Issuer a license to exercise all of the Issuerβs rights pursuant to the ArticleΒ 15 Agreements without notice to or the consent of the Trustee (except as otherwise expressly required by this Indenture, including, without limitation, as set forth in SectionΒ 15.1(f)) which license shall be and is hereby deemed to be automatically revoked upon the occurrence of an Event of Default hereunder until such time, if any, that such Event of Default is cured or waived.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The assignment made hereby is executed as collateral security, and the execution and delivery hereby shall not in any way impair or diminish the obligations of the Issuer under the provisions of each of the ArticleΒ 15 Agreements, nor shall any of the obligations contained in each of the ArticleΒ 15 Agreements be imposed on the Trustee.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Upon the retirement of the Notes and the release of the Assets from the lien of this Indenture, this assignment and all rights herein assigned to the Trustee for the benefit of the Noteholders shall cease and terminate and all the estate, right, title and interest of the Trustee in, to and under each of the ArticleΒ 15 Agreements shall revert to the Issuer and no further instrument or act shall be necessary to evidence such termination and reversion.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer represents that it has not executed any assignment of any of the ArticleΒ 15 Agreements other than this collateral assignment.
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer agrees that this assignment is irrevocable, and that it shall not take any action which is inconsistent with this assignment or make any other assignment inconsistent herewith.Β The Issuer shall, from time to time upon the request of the Trustee, execute all instruments of further assurance and all such supplemental instruments with respect to this assignment as the Trustee may specify.
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer hereby agrees, and hereby undertakes to obtain the agreement and consent of the Sellers and the Loan Obligation Manager, as applicable, in the Loan Obligation Purchase Agreements and the Loan Obligation Management Agreement, as applicable, to the following:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β each of the Sellers and the Loan Obligation Manager consents to the provisions of this collateral assignment and agrees to perform any provisions of this Indenture made expressly applicable to each of the Sellers and the Loan Obligation Manager pursuant to the applicable ArticleΒ 15 Agreement;
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β each of the Sellers and the Loan Obligation Manager, as applicable, acknowledges that the Issuer is collaterally assigning all of its right, title and interest in, to and under the Loan Obligation Purchase Agreements and the Loan Obligation Management Agreement, as applicable, to the Trustee for the benefit of the Noteholders, and each of the Sellers and the Loan Obligation Manager, as applicable, agrees that all of the representations, covenants and agreements made by each of the Sellers and the Loan Obligation Manager, as applicable, in the applicable ArticleΒ 15 Agreement are also for the benefit of, and enforceable by, the Trustee and the Noteholders;
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β each of the Sellers and the Loan Obligation Manager, as applicable, shall deliver to the Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer pursuant to the applicable ArticleΒ 15 Agreement;
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(iv)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β none of the Issuer, the Sellers or the Loan Obligation Manager shall enter into any agreement amending, modifying or terminating the applicable ArticleΒ 15 Agreement, (other than in respect of an amendment or modification to cure any inconsistency, ambiguity or manifest error) or selecting or consenting to a successor Loan Obligation Manager, as applicable, without notifying the Rating Agency and without the prior written consent and written confirmation of the Rating Agency that such amendment, modification or termination will not cause its then-current ratings of the Notes to be downgraded or withdrawn;
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(v)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β except as otherwise set forth herein and therein (including, without limitation, pursuant to SectionΒ 12 of the Loan Obligation Management Agreement), the Loan Obligation Manager shall continue to serve as Loan Obligation Manager under the Loan Obligation Management Agreement, notwithstanding that the Loan Obligation Manager shall not have received amounts due it under the Loan Obligation Management Agreement because sufficient funds were not then available hereunder to pay such amounts pursuant to the Priority of Payments.Β The Loan Obligation Manager agrees not to cause the filing of a petition in bankruptcy against the Issuer for the nonpayment of the fees or other amounts payable to the Loan Obligation Manager under the Loan Obligation Management Agreement until the payment in full of all Notes issued under this Indenture and the expiration of a period equal to the applicable preference period under the Bankruptcy Code plus ten days following such payment; and
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(vi)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Loan Obligation Manager irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to the Notes or this Indenture, and the Loan Obligation Manager irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State or federal court.Β The Loan Obligation Manager irrevocably waives, to the fullest extent it may legally do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.Β The Loan Obligation Manager irrevocably consents to the service of any and all process in any action or Proceeding by the mailing by certified mail, return receipt requested, or delivery requiring signature and proof of delivery of copies of such initial process to it at Arbor Realty Trust,Β Inc., 330 Xxxxx Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attention: Executive Vice PresidentβStructured Securitization.Β The Loan Obligation Manager agrees that a final and non-appealable judgment by a court of competent jurisdiction in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
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ARTICLEΒ 16
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CURE RIGHTS; PURCHASE RIGHTS; REPLACEMENT LOAN OBLIGATIONS
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SectionΒ 16.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Reserved.
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SectionΒ 16.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Loan Obligation Purchase Agreements.
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Following the Closing Date, unless a Loan Obligation Purchase Agreement is necessary to comply with the provisions of this Indenture, the Issuer may acquire Loan Obligations in accordance with customary settlement procedures in the relevant markets. In any event, the Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall obtain from any seller of a Loan Obligation, all Underlying Instruments with respect to each Loan Obligation that govern, directly or indirectly, the rights and obligations of the owner of the Loan Obligation with respect to the Loan Obligation and any certificate evidencing the Loan Obligation.
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SectionΒ 16.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Representations and Warranties Related to Replacement Loan Obligations.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Upon the acquisition of a Replacement Loan Obligation by the Issuer, the related seller shall be required to make representations and warranties substantially in the form attached as ExhibitΒ H hereto.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The representations and warranties in SectionΒ 16.3(a)Β with respect to the acquisition of a Replacement Loan Obligation may be subject to any modification, limitation or qualification that the Loan Obligation Manager determines to be reasonably acceptable in accordance with the Loan Obligation Manager Servicing Standard; provided that the Loan Obligation Manager will provide the Rating Agency with a report attached to each Monthly Report identifying each such affected representation or warranty and the modification, exception, limitation or qualification received with respect to the acquisition of any Replacement Loan
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Obligation during the period covered by the Monthly Report, which report may contain explanations by the Loan Obligation Manager as to its determinations.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer (or the Loan Obligation Manager on behalf of the Issuer) shall obtain a covenant from the Person making any representation or warranty to the Issuer pursuant to SectionΒ 16.3(a)Β that such Person shall repurchase the related Loan Obligation if any such representation or warranty is breached (but only after the expiration of any permitted cure periods and failure to cure such breach).Β The purchase price for any Loan Obligation repurchased (the βRepurchase Priceβ) shall be a price equal to the sum of the following (in each case, without duplication) as of the date of such repurchase: (i)Β the then outstanding Principal Balance of such Loan Obligation, discounted based on the percentage amount of any discount that was applied when such Loan Obligation was purchased by the Issuer, plus (ii)Β accrued and unpaid interest on such Loan Obligation, plus (iii)Β any unreimbursed advances, plus (iv)Β accrued and unpaid interest on advances on the Loan Obligation, plus (v)Β any reasonable costs and expenses (including, but not limited to, the cost of any enforcement action, incurred by the Issuer or the Trustee in connection with any such purchase by a seller).
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SectionΒ 16.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Operating Advisor.
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If the Issuer, as holder of a Senior Participation has the right pursuant to the related Underlying Instruments to appoint the operating advisor, directing holder or Person serving a similar function under the Underlying Instruments, each of the Issuer, the Trustee and the Loan Obligation Manager shall take such actions as are reasonably necessary to appoint the Loan Obligation Manager to such position.
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ARTICLEΒ 17
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ADVANCING AGENT
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SectionΒ 17.1Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Liability of the Advancing Agent.
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The Advancing Agent shall be liable in accordance herewith only to the extent of the obligations specifically imposed upon and undertaken by the Advancing Agent.
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SectionΒ 17.2Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Merger or Consolidation of the Advancing Agent.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Advancing Agent will keep in full effect its existence, rights and franchises as a corporation under the laws of the jurisdiction in which it was formed, and will obtain and preserve its qualification to do business as a foreign corporation in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture to perform its duties under this Indenture.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Any Person into which the Advancing Agent may be merged or consolidated, or any corporation resulting from any merger or consolidation to which the Advancing Agent shall be a party, or any Person succeeding to the business of the Advancing Agent shall be the successor of the Advancing Agent, hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the
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contrary notwithstanding (it being understood and agreed by the parties hereto that the consummation of any such transaction by the Advancing Agent shall have no effect on the Trusteeβs obligations under SectionΒ 10.9, which obligations shall continue pursuant to the terms of SectionΒ 10.9).
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SectionΒ 17.3Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Limitation on Liability of the Advancing Agent and Others.
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None of the Advancing Agent or any of its affiliates, directors, officers, employees or agents shall be under any liability 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 Advancing Agent against liability to the Issuer or Noteholders for any breach of warranties or representations made herein or any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of negligent disregard of obligations and duties hereunder.Β The Advancing Agent and any director, officer, employee or agent of the Advancing Agent 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 Advancing Agent and any director, officer, employee or agent of the Advancing Agent shall be indemnified by the Issuer pursuant to the priorities set forth in SectionΒ 11.1(a)Β and held harmless against any loss, liability or expense incurred in connection with any legal action relating to this Indenture or the Notes, other than any loss, liability or expense (i)Β specifically required to be borne by the Advancing Agent pursuant to the terms hereof or otherwise incidental to the performance of obligations and duties hereunder (except as any such loss, liability or expense shall be otherwise reimbursable pursuant to this Indenture); or (ii)Β incurred by reason of any breach of a representation, warranty or covenant made herein, any misfeasance, bad faith or gross negligence by the Advancing Agent in the performance of or negligent disregard of, obligations or duties hereunder or any violation of any state or federal securities law.
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SectionΒ 17.4Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Representations and Warranties of the Advancing Agent.
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The Advancing Agent represents and warrants that:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Advancing Agent (i)Β has been duly organized, is validly existing and is in good standing under the laws of the State of Maryland, (ii)Β has full power and authority to own the Advancing Agentβs assets and to transact the business in which it is currently engaged, and (iii)Β is duly qualified and in good standing under the laws of each jurisdiction where the Advancing Agentβs ownership or lease of property or the conduct of the Advancing Agentβs business requires, or the performance of this Indenture would require, such qualification, except for failures to be so qualified that would not in the aggregate have a material adverse effect on the business, operations, assets or financial condition of the Advancing Agent or the ability of the Advancing Agent to perform its obligations under, or on the validity or enforceability of, the provisions of this Indenture applicable to the Advancing Agent;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Advancing Agent has full power and authority to execute, deliver and perform this Indenture; this Indenture has been duly authorized, executed and delivered by the Advancing Agent and constitutes a legal, valid and binding agreement of the Advancing Agent, enforceable against it in accordance with the terms hereof, except that the enforceability hereof
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may be subject to (i)Β bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditorsβ rights and (ii)Β general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law);
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β neither the execution and delivery of this Indenture nor the performance by the Advancing Agent of its duties hereunder conflicts with or will violate or result in a breach or violation of any of the terms or provisions of, or constitutes a default under: (i)Β the Articles of Incorporation and bylaws of the Advancing Agent, (ii)Β the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement or other evidence of indebtedness or other agreement, obligation, condition, covenant or instrument to which the Advancing Agent is a party or is bound, (iii)Β any law, decree, order, ruleΒ or regulation applicable to the Advancing Agent of any court or regulatory, administrative or governmental agency, body or authority or arbitrator having jurisdiction over the Advancing Agent or its properties, and which would have, in the case of any of (i), (ii)Β or (iii)Β of this SectionΒ 17.4(c), either individually or in the aggregate, a material adverse effect on the business, operations, assets or financial condition of the Advancing Agent or the ability of the Advancing Agent to perform its obligations under this Indenture;
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β no litigation is pending or, to the best of the Advancing Agentβs knowledge, threatened, against the Advancing Agent that would materially and adversely affect the execution, delivery or enforceability of this Indenture or the ability of the Advancing Agent to perform any of its obligations under this Indenture in accordance with the terms hereof; and
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β no consent, approval, authorization or order of or declaration or filing with any government, governmental instrumentality or court or other person is required for the performance by the Advancing Agent of its duties hereunder, except such as have been duly made or obtained.
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SectionΒ 17.5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Resignation and Removal; Appointment of Successor.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No resignation or removal of the Advancing Agent and no appointment of a successor Advancing Agent pursuant to this ArticleΒ 17 shall become effective until the acceptance of appointment by the successor Advancing Agent under SectionΒ 17.6.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Advancing Agent may resign at any time by giving written notice thereof to the Issuer, the Co-Issuer, the Trustee, the Loan Obligation Manager, the Noteholders and the Rating Agency.
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Advancing Agent may be removed at any time by Act of at least 66-2/3% of the Preferred Shares upon written notice delivered to the Trustee and to the Issuer and the Co-Issuer.
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(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β If the Advancing Agent fails to make an Interest Advance required by this Indenture with respect to a Payment Date, the Backup Advancing Agent shall be required to make such Interest Advance and shall be entitled to receive, in consideration thereof, the Advancing Agent Fee (in lieu of the Backup Advancing Agent Fee) in accordance with the Priority of Payments.Β If the Advancing Agent fails to make a required Interest Advance and it has not determined such Interest Advance to be a Nonrecoverable Interest Advance, the Loan
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Obligation Manager may, and at the direction of the Controlling ClassΒ shall, terminate such Advancing Agent and replace such Advancing Agent with a successor advancing agent, subject to the satisfaction of the Rating Agency Condition.Β In the event that the Loan Obligation Manager has not terminated and replaced such Advancing Agent within 30 days of such Advancing Agentβs failure to make a required Interest Advance, the Trustee may terminate such Advancing Agent and appoint a successor Advancing Agent.
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Subject to SectionΒ 17.5(d), if the Advancing Agent shall resign or be removed, upon receiving such notice of resignation or removal, the Issuer and the Co-Issuer shall promptly appoint a successor advancing agent by written instrument, in duplicate, executed by an Authorized Officer of the Issuer and an Authorized Officer of the Co-Issuer, one copy of which shall be delivered to the Advancing Agent so resigning and one copy to the successor Advancing Agent, together with a copy to each Noteholder, the Trustee and the Loan Obligation Manager; provided that such successor Advancing Agent shall be appointed only subject to satisfaction of the Rating Agency Condition, upon the written consent of a Majority of Preferred Shareholders.Β If no successor Advancing Agent shall have been appointed and an instrument of acceptance by a successor Advancing Agent shall not have been delivered to the Advancing Agent within 30 days after the giving of such notice of resignation, the resigning Advancing Agent, the Trustee or any Preferred Shareholder, on behalf of himself and all others similarly situated, may petition any court of competent jurisdiction for the appointment of a successor Advancing Agent.
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Issuer and the Co-Issuer shall give prompt notice of each resignation and each removal of the Advancing Agent and each appointment of a successor Advancing Agent by mailing written notice of such event by first class mail, postage prepaid, to the Rating Agency and to the Holders of the Notes as their names and addresses appear in the Notes Register.
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SectionΒ 17.6Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Acceptance of Appointment by Successor Advancing Agent.
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Every successor Advancing Agent appointed hereunder shall execute, acknowledge and deliver to the Issuer, the Co-Issuer, the Loan Obligation Manager, the Trustee and the retiring Advancing Agent an instrument accepting such appointment.Β Upon delivery of the required instruments, the resignation or removal of the retiring Advancing Agent shall become effective and such successor Advancing Agent, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations of the retiring Advancing Agent.
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No appointment of a successor Advancing Agent shall become effective unless the Rating Agency has confirmed in writing that the employment of such successor would not adversely affect the rating on the Notes.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Indenture as of the day and year first above written.
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ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD., as Issuer | |
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By: |
/s/ Jarladth Xxxxxxx |
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Name: Xxxxxxxx Xxxxxxx |
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Title: Director |
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ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC, as Co-Issuer | |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: Xxxxxx X. Xxxxxxx |
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Title: Independent Manager |
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U.S. BANK NATIONAL ASSOCIATION, solely as Trustee, Paying Agent, Calculation Agent, Transfer Agent, Custodial Securities Intermediary, Backup Advancing Agent and Notes Registrar and not in its individual capacity | |
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By: |
/s/ Xxxxxxx Xxxxxx |
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Name: Xxxxxxx Xxxxxx |
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Title: Assistant Vice President |
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ARBOR REALTY SR,Β INC., as Advancing Agent | |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: Xxxxxxx Xxxxx |
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Title: Authorized Signatory |
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Schedule A
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Closing Date Loan Obligations
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PartΒ 1 β Loan Obligations Acquired on the Closing Date
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LoanΒ Obligation |
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UnpaidΒ PrincipalΒ Balance(1) |
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Riverfront Towers |
Β |
$ |
30,000,000 |
Β |
Victory Road |
Β |
$ |
18,000,000 |
Β |
Vintage Pointe |
Β |
$ |
15,000,000 |
Β |
Edentree |
Β |
$ |
12,000,000 |
Β |
Alphabet Portfolio |
Β |
$ |
9,000,000 |
Β |
Xxxxxx Oaks |
Β |
$ |
8,250,000 |
Β |
Central Pointe |
Β |
$ |
7,500,000 |
Β |
Iris Gardens |
Β |
$ |
7,312,000 |
Β |
Ventana |
Β |
$ |
7,000,000 |
Β |
Summerlyn |
Β |
$ |
6,950,000 |
Β |
BirchwoodΒ & Quail Run |
Β |
$ |
6,500,000 |
Β |
Southwest Oaks |
Β |
$ |
4,800,000 |
Β |
The Elms |
Β |
$ |
4,500,000 |
Β |
Avery Park |
Β |
$ |
4,125,000 |
Β |
Edge at White Rock |
Β |
$ |
3,700,000 |
Β |
Summerhill |
Β |
$ |
3,250,000 |
Β |
Xxxxxx Square |
Β |
$ |
3,900,000 |
Β |
St. Ives |
Β |
$ |
27,000,000 |
Β |
Total |
Β |
$ |
178,787,000 |
Β |
Β
PartΒ 2βLoan Obligations Expected to be Acquired During the Post-Closing Acquisition Period
Β
LoanΒ Obligation |
Β |
UnpaidΒ PrincipalΒ Balance(1) |
Β | |
Β |
Β |
Β |
Β | |
West Palm Beach Multifamily Portfolio |
Β |
$ |
18,000,000 |
Β |
Orlando Multifamily Portfolio |
Β |
$ |
13,200,000 |
Β |
Total |
Β |
$ |
31,200,000 |
Β |
Β
(1)Β As of JanuaryΒ 28, 2013.
Β
Β
Schedule B
Β
LIBOR
Β
The London interbank offered rate (βLIBORβ) shall be determined by the Calculation Agent in accordance with the following provisions:
Β
(1)Β On the second London Banking Day preceding the first Business Day of an Interest Accrual Period (each such day, a βLIBOR Determination Dateβ), LIBOR (other than for the initial Interest Accrual Period) will equal the rate, as obtained by the Calculation Agent, for deposits in U.S. Dollars for a period of one month, which appears on the Reuters PageΒ LIBOR01 (or such other pageΒ that may replace that pageΒ on such service for the purpose of displaying comparable rates) as reported by Bloomberg Financial Markets Commodities News as of 11:00Β a.m., London time, on the LIBOR Determination Date.Β βLondon Banking Dayβ means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in London, England.
Β
(2)Β If, on any LIBOR Determination Date, such rate does not appear on Reuters Screen LIBOR01, the Calculation Agent will determine LIBOR on the basis of the rates at which deposits in U.S. Dollars are offered by Reference Banks at approximately 11:00Β a.m. (London time) on the LIBOR Determination Date to prime banks in the London interbank market for a period of one month commencing on the LIBOR Determination Date and in a representative amount of U.S.$1,000.Β The Calculation Agent will request the principal London office of each of the Reference Banks to provide a quotation of its rate.Β If at least two such quotations are provided, the rate for that LIBOR Determination Date will be the arithmetic mean of the quotations.Β If fewer than two quotations are provided as requested, the rate for that LIBOR Determination Date will be the arithmetic mean of the rates quoted by major banks in New York City, selected by the Calculation Agent, at approximately 11:00Β a.m. (New York City time) on the LIBOR Determination Date for loans in U.S. Dollars to leading European banks for a period of three months commencing on the LIBOR Determination Date and in a representative amount of U.S.$1,000.Β As used herein, βReference Banksβ means four major banks in the London interbank market selected by the Calculation Agent and approved by the Loan Obligation Manager.
Β
(3)Β In respect of the initial Interest Accrual Period, LIBOR will be determined on the second London Banking Day preceding the Closing Date.
Β
In making the above calculations, (A)Β all percentages resulting from the calculation (other than the calculation determined pursuant to clause (c)Β above) will be rounded, if necessary, to the nearest one hundred thousandth of a percentage point (0.00001%) and (B)Β all percentages determined pursuant to clause (c)Β above will be rounded, if necessary, in accordance with the method set forth in (A), but to the same degree of accuracy as the two rates used to make the determination (except that such percentages will not be rounded to a lower degree of accuracy than the nearest one thousandth of a percentage point (0.001%)).
Β
Β
Schedule C
Β
List of Authorized Officers of Loan Obligation Manager
Β
1.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Xxxx Xxxxxxx
Β
2.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Xxxx Xxxxxx
Β
3.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Xxxx Xxxxx
Β
4.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Xxxx Xxxxxxx
Β
5.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Xxxxxx Xxxxxxxxx
Β
Β
EXHIBITΒ A-1
Β
FORMΒ OF CLASSΒ A SENIOR SECURED FLOATING RATE NOTE DUE 2023
[REGULATION S] [RULE 144A] GLOBAL SECURITY
Β
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND NEITHER THE ISSUER NOR THE CO-ISSUER HAS BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE β1940 ACTβ).Β THIS NOTE MAYΒ NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A)(1)Β TO A QUALIFIED INSTITUTIONAL BUYER (A βQIBβ) WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) WHO IS A QUALIFIED PURCHASER AS DEFINED IN SECTIONΒ 2(A)(51) OF THE 1940 ACT (A βQUALIFIED PURCHASERβ) AND IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER WHO IS A QUALIFIED PURCHASER,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT,Β IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, OR (2)Β TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT (βREGULATION Sβ) IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, AND (B)Β IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.Β EACH PURCHASER OF A GLOBAL SECURITY WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTIONΒ 2.5 OF THE INDENTURE.Β ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE CO-ISSUER, AS APPLICABLE, THE TRUSTEE OR ANY INTERMEDIARY.Β IF AT ANY TIME, THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE, DETERMINE OR ARE NOTIFIED THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH SECURITY WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE TRUSTEE MAYΒ CONSIDER THE ACQUISITION OF THIS NOTE OR SUCH INTEREST IN SUCH SECURITY VOID AND REQUIRE THAT THIS NOTE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE.
Β
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDEΒ & CO. HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (βDTCβ), NEW YORK, NEW YORK, TO THE CO-ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDEΒ & CO. OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDEΒ & CO.).
Β
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.Β THIS NOTE MAYΒ NOT BE EXCHANGED OR TRANSFERRED IN WHOLE OR IN PARTΒ FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THAT DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Β
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.Β ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAYΒ BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.Β ANY PERSON ACQUIRING THIS NOTE MAYΒ ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
Β
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[AN INTEREST IN THIS NOTE MAYΒ NOT BE HELD BY A PERSON THAT IS A U.S. PERSON (AS DEFINED IN REGULATION S) AT ANY TIME.Β IN ADDITION, AN INTEREST IN THIS NOTE MAYΒ ONLY BE HELD THROUGH EUROCLEAR OR CLEARSTREAM, LUXEMBOURG AT ANY TIME.] (1)
Β
(1)Β Β Β Β Β Β Β Β Regulation S Global Securities.
Β
Β
ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD.
ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC
Β
CLASSΒ A SENIOR SECURED FLOATING RATE NOTE DUE 2023
Β
No.Β [Reg. S][144A]- |
Up to |
CUSIP No.Β G04475 AA0(2)03878D AA2(3) |
U.S.$156,000,000 |
ISIN: USG04475AA08(4)US03878DAA28(5) |
Β |
Β
Each of ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD., a Cayman Islands exempted company with limited liability (the βIssuerβ) and ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC, a Delaware limited liability company (the βCo-Issuerβ) for value received, hereby promises to pay to CEDEΒ & CO. or its registered assigns (a)Β upon presentation and surrender of this Note (except as otherwise permitted by the Indenture referred to below), the principal sum of up to ONE HUNDRED FIFTY SIX MILLION United States Dollars (U.S.$156,000,000), or such other principal sum as is equal to the aggregate principal amount of the ClassΒ A Notes identified from time to time on the records of the Trustee and Schedule A hereto as being represented by this [RuleΒ 144A] [Regulation S] Global Security, on the Payment Date occurring in FebruaryΒ 2023 (the βStated Maturityβ), to the extent not previously paid, in accordance with the Indenture referred to below unless the unpaid principal of this Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise and (b)Β the ClassΒ A Interest Distribution Amount allocable to this Note in accordance with the Indenture payable initially on MarchΒ 15, 2013, and thereafter monthly on the 15thΒ day of each calendar month (or if such day is not a Business Day, then on the next succeeding Business Day) (each, a βPayment Dateβ).Β Interest on the ClassΒ A Notes shall accrue at the ClassΒ A Note Interest Rate and shall be computed on the basis of the actual number of days in the related Interest Accrual Period divided by 360.Β The interest so payable 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 Record Date for such interest, which shall be the fifteenth day (whether or not a Business Day) prior to the applicable Payment Date.
Β
The obligations of the Issuer and the Co-Issuer under this Note and the Indenture are limited recourse obligations of the Issuer and non-recourse obligations of the Co-Issuer payable solely from the Loan Obligations and other Assets pledged by the Issuer as security for the Notes under the Indenture, and in the event the Loan Obligations and such other Assets are insufficient to satisfy such obligations, any claims of the Holders of the Notes shall be extinguished, all in accordance with the Indenture.
Β
The payment of interest on this Note is senior to the payments of the principal of, and interest on, the ClassΒ B Notes and the Preferred Shares.Β So long as any ClassΒ A Notes are Outstanding, the ClassΒ B Notes and the Preferred Shares will receive payments only in accordance with the Priority of Payments.Β The principal of this Note shall be due and payable no later than the Stated Maturity unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise.
Β
Payments in respect of principal and interest and any other amounts due on any Payment Date on this Note shall be payable by the Trustee or a Paying Agent, subject to any laws or regulations applicable thereto, by wire transfer in immediately available funds to a Dollar account maintained by the Registered Holder hereof; provided that the Registered Holder shall have provided wiring instructions to the Trustee on or before the related Record Date, or, if wire transfer cannot be effected, by Dollar check drawn on a bank as provided in the Indenture and mailed to the Registered Holder at its address in the Notes Register.
Β
(2)Β Β Β Β Β Β Β Β For Regulation S Global Security.
Β
(3)Β Β Β Β Β Β Β Β For RuleΒ 144A Global Security.
Β
(4)Β Β Β Β Β Β Β Β For Regulation S Global Security.
Β
(5)Β Β Β Β Β Β Β Β For RuleΒ 144A Global Security.
Β
Β
Interest will cease to accrue on this Note, or in the case of a partial repayment, on such part, from the date of repayment or Stated Maturity unless payment of principal is improperly withheld or unless a Default is otherwise made with respect to such payments of principal.
Β
Notwithstanding the foregoing, the final payment of interest and principal due on this Note shall be made only upon presentation and surrender of this Note (except as otherwise provided in the Indenture) at the Corporate Trust Office of the Trustee or at any Paying Agent.
Β
The Registered Holder of this Note shall be treated as the owner hereof for all purposes.
Β
Except as specifically provided herein and in the Indenture, neither the Issuer nor the Co-Issuer shall be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.
Β
Unless the certificate of authentication hereon has been executed by the Trustee by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
Β
This Note is one of a duly authorized issue of ClassΒ A Senior Secured Floating Rate Notes Due 2023, of the Issuer and the Co-Issuer (the βClassΒ A Notesβ), limited in aggregate principal amount to U.S.$156,000,000 issued under an indenture dated as of JanuaryΒ 28, 2013 (the βIndentureβ) by and among the Issuer, the Co-Issuer, U.S. Bank National Association, as trustee (in such capacity and together with any successor trustee permitted under the Indenture, the βTrusteeβ), paying agent, calculation agent, transfer agent, custodial securities intermediary, backup advancing agent and notes registrar and Arbor Realty SR,Β Inc., as advancing agent.Β Also authorized under the Indenture are (a)Β up to U.S.$21,000,000 ClassΒ B Secured Floating Rate Notes Due 2023 (the βClassΒ B Notesβ and, together with the ClassΒ A Notes, the βNotesβ).
Β
Concurrently with the issuance of the Notes, the Issuer also will issue preferred shares (the βPreferred Sharesβ), under the Issuerβs Memorandum and Articles of Association as part of its issued share capital.
Β
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 Co-Issuer, the Trustee, the Advancing Agent, the Holders of the Notes and the Preferred Shares and the terms upon which the Notes and the Preferred Shares are, and are to be, executed, authenticated and delivered.
Β
Payments of principal of the ClassΒ A Notes shall be payable in accordance with SectionΒ 11.1(a)Β of the Indenture.
Β
Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture.
Β
Pursuant to SectionΒ 9.1(a)Β of the Indenture, the Notes are subject to redemption by the Issuer at the direction of the Loan Obligation Manager (such redemption, a βClean-up Call Redemptionβ), in whole but not in part, at a price equal to the applicable Redemption Price, upon notice given in the manner provided in the Indenture, on any Payment Date on or after the Payment Date on which the Aggregate Outstanding Amount of the Notes has been reduced to 10% of the Aggregate Outstanding Amount of the Notes on the Closing Date; provided, that the funds available to be used for such redemption will be sufficient to pay the Total Redemption Price.
Β
Pursuant to SectionΒ 9.1(b)Β of the Indenture, the Notes and the Preferred Shares shall be redeemable, in whole but not in part, by Act of a Majority of the Preferred Shares delivered to the Trustee, on the Payment Date following the occurrence of a Tax Event if the Tax Materiality Condition is satisfied at a price equal to the applicable Redemption Prices; provided that that the funds available to be used for such Tax Redemption will be sufficient to pay the Total Redemption Price.
Β
Β
Pursuant to SectionΒ 9.1(c)Β of the Indenture, the Notes and the Preferred Shares are subject to redemption, in whole but not in part, by the Issuer at a price equal to the applicable Redemption Prices, on any Payment Date occurring after the end of the Non-call Period at the direction of the Issuer (such redemption, an βOptional Redemptionβ) by Act of a Majority of the Preferred Shares delivered to the Trustee; provided that the funds available to be used for such Optional Redemption will be sufficient to pay the Total Redemption Price.
Β
Notes for whose redemption and payment provision is made in accordance with the Indenture shall cease to bear interest on the applicable Redemption Date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest thereon).
Β
Pursuant to SectionΒ 9.5 of the Indenture, if any of the Note Protection Tests applicable to any ClassΒ of Notes is not satisfied as of the most recent Measurement Date the Notes shall be redeemed from in accordance with SectionΒ 9.6 and the Priority of Payments set forth in the Indenture, only, and to the extent necessary, to cause each of the Note Protection Tests to be satisfied.
Β
If an Event of Default shall occur and be continuing, the ClassΒ A Notes may become or be declared due and payable in the manner and with the effect provided in the Indenture.
Β
The Indenture may be amended and supplemented under the circumstances, and in accordance with the conditions, set forth therein.
Β
The Notes are issuable in minimum denominations of $500,000 and integral multiples of $500 in excess thereof.
Β
The principal of each Note shall be payable on the Stated Maturity Date, unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise.
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The term βIssuerβ as used in this Note includes any successor-in-interest to the Issuer under the Indenture and the term βCo-Issuerβ as used in this Note includes any successor-in-interest to the Co-Issuer under the Indenture.
Β
Each purchaser and any subsequent transferee of this Note or any interest herein shall, by virtue of its purchase or other acquisition of this Note or any interest herein, be deemed to have agreed to treat this Note as debt for U.S. federal income tax purposes.
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In connection with the purchase of this Note, the Holder and each beneficial owner thereof agrees that: (A)Β none of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Placement Agent, the Trustee, the Collateral Administrator or any of their respective affiliates is acting as a fiduciary or financial or investment advisor for such Holder or beneficial owner; (B)Β such Holder or beneficial owner is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates other than any statements in the final offering memorandum for such Notes, and such Holder or beneficial owner has read and understands such final offering memorandum; (C)Β such Holder or beneficial owner has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it has deemed necessary and has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates.
Β
Each Holder, by its acquisition of an interest in the Notes, shall be deemed to have represented to the Issuer, the Co-Issuer, the Loan Obligation Manager, the CLO Servicer, the Placement Agent and the Trustee that either (A)Β no part of the funds being used to pay the purchase price for such Notes constitutes an asset of any βemployee benefit planβ (as defined in SectionΒ 3(3)Β of ERISA) or βplanβ (as defined in SectionΒ 4975(e)(1)Β of the
Β
Β
Code) that is subject to Title I of ERISA or SectionΒ 4975 of the Code or any other employee benefit plan or plan which is subject to any federal, state or local law (βSimilar Lawβ) that is substantially similar to SectionΒ 406 of ERISA or SectionΒ 4975 of the Code (each a βBenefit Planβ), or an entity whose underlying assets include plan assets of any such Benefit Plan, or (B)Β if the funds being used to pay the purchase price for such Notes include plan assets of any Benefit Plan, its purchase and holding will not constitute or result in a non-exempt prohibited transaction under SectionΒ 406 of ERISA or SectionΒ 4975 of the Code, or in the case of any Benefit Plan subject to Similar Law, will not constitute or result in a non-exempt violation of Similar Law.
Β
Title to Notes shall pass by registration in the Register kept by the Trustee, acting through its Corporate Trust Office.
Β
No service charge shall be made to a Holder for any registration of transfer or exchange of this Note, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Β
No right or remedy conferred herein or in the Indenture upon or reserved to the Trustee or to the Holder hereof 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 thereunder or now or hereafter existing at law or in equity or otherwise.Β The assertion or employment of any right or remedy hereunder or under the Indenture, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Β
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.
Β
THE HOLDER OF THIS NOTE AGREES NOT TO CAUSE THE FILING OF A PETITION IN BANKRUPTCY AGAINST THE ISSUER OR THE CO-ISSUER IN ANY APPLICABLE OR RELEVANT JURISDICTION UNTIL AT LEAST ONE YEAR AND ONE DAY (OR,Β IF LONGER, THE APPLICABLE PREFERENCE PERIOD THEN IN EFFECT), AFTER THE PAYMENT IN FULL OF ALL NOTES ISSUED UNDER THE INDENTURE.
Β
AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
Β
Β
IN WITNESS WHEREOF, the Co-Issuers have caused this Note to be duly executed.
Β
Dated as of JanuaryΒ 28, 2013
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ARBOR REALTY COLLATERALIZED LOAN | |
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By: |
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Name: |
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Title: |
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ARBOR REALTY COLLATERALIZED LOAN | |
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By: |
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Name: |
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Title: |
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CERTIFICATE OF AUTHENTICATION
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This is one of the Notes referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION, as Trustee | |
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By: |
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Authenticating Agent |
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ASSIGNMENT FORM
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For value received |
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hereby sell, assign and transfer unto | |||||
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Please insert social security or | ||||
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other identifying number of assignee | ||||
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Please print or type name | ||||
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and address, including zip code, | ||||
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of assignee: | ||||
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the within Note and does hereby irrevocably constitute and appoint Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Attorney to transfer the Note on the books of the Issuer with full power of substitution in the premises.
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Date: |
Your Signature: |
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(Sign exactly as your name |
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appears on this Note) |
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SCHEDULE A
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EXCHANGES IN GLOBAL SECURITY
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This Note shall be issued in the original principal balance of U.S.$[Β·](6)[Β·](7) on the Closing Date.Β The following exchanges of a part of this [RuleΒ 144A][Regulation S] Global Security have been made:
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(6)Β Β Β Β Β Β Β Β RuleΒ 144A Global Security
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(7)Β Β Β Β Β Β Β Β Regulation S Global Security
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EXHIBITΒ A-2
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FORMΒ OF CLASSΒ A SENIOR SECURED FLOATING RATE NOTE DUE 2023
DEFINITIVE NOTE
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THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND NEITHER THE ISSUER NOR THE CO-ISSUER HAS BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE β1940 ACTβ).Β THIS NOTE MAYΒ NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A)(1)Β TO A QUALIFIED INSTITUTIONAL BUYER (A βQIBβ) WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) WHO IS A QUALIFIED PURCHASER AS DEFINED IN SECTIONΒ 2(A)(51) OF THE 1940 ACT (A βQUALIFIED PURCHASERβ) AND IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER WHO IS A QUALIFIED PURCHASER,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT,Β IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, OR (2)Β TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT (βREGULATION Sβ) IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, AND (B)Β IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.Β EACH PURCHASER OF A GLOBAL SECURITY WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTIONΒ 2.5 OF THE INDENTURE.Β ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE CO-ISSUER, AS APPLICABLE, THE TRUSTEE OR ANY INTERMEDIARY.Β IF AT ANY TIME, THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE, DETERMINE OR ARE NOTIFIED THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH SECURITY WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE TRUSTEE MAYΒ CONSIDER THE ACQUISITION OF THIS NOTE OR SUCH INTEREST IN SUCH SECURITY VOID AND REQUIRE THAT THIS NOTE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE.
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ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD.
ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC
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CLASSΒ A SENIOR SECURED FLOATING RATE NOTE DUE 2023
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No.Β IAI- |
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CUSIP No.Β 03878D AB0 |
U.S.$[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] |
ISIN: US03878DAB01 |
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Each of ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD., a Cayman Islands exempted company with limited liability (the βIssuerβ) and ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC, a Delaware limited liability company (the βCo-Issuerβ) for value received, hereby promises to pay to [Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] or its registered assigns (a)Β upon presentation and surrender of this Note (except as otherwise permitted by the Indenture referred to below), the principal sum of [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] United States Dollars (U.S.$[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ]) on the Payment Date occurring in February, 2023 (the βStated Maturityβ), to the extent not previously paid, in accordance with the Indenture referred to below unless the unpaid principal of this Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise and (b)Β the ClassΒ A Interest Distribution Amount allocable to this Note in accordance with the Indenture payable initially on MarchΒ 15, 2013, and thereafter monthly on the 15thΒ day of each calendar month (or if such day is not a Business Day, then on the next succeeding Business Day) (each, a βPayment Dateβ).Β Interest on the ClassΒ A Notes shall accrue at the ClassΒ A Note Interest Rate and shall be computed on the basis of the actual number of days in the related Interest Accrual Period divided by 360.Β The interest so payable 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 Record Date for such interest, which shall be the fifteenth day (whether or not a Business Day) prior to the applicable Payment Date.
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The obligations of the Issuer and the Co-Issuer under this Note and the Indenture are limited recourse obligations of the Issuer and non-recourse obligations of the Co-Issuer payable solely from the Loan Obligations and other Assets pledged by the Issuer as security for the Notes under the Indenture, and in the event the Loan Obligations and such other Assets are insufficient to satisfy such obligations, any claims of the Holders of the Notes shall be extinguished, all in accordance with the Indenture.
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The payment of interest on this Note is senior to the payments of the principal of, and interest on, the ClassΒ B Notes and the Preferred Shares.Β So long as any ClassΒ A Notes are Outstanding, the ClassΒ B Notes and the Preferred Shares will receive payments only in accordance with the Priority of Payments.Β The principal of this Note shall be due and payable no later than the Stated Maturity unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise.
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Payments in respect of principal and interest and any other amounts due on any Payment Date on this Note shall be payable by the Trustee or a Paying Agent, subject to any laws or regulations applicable thereto, by wire transfer in immediately available funds to a Dollar account maintained by the Registered Holder hereof; provided that the Registered Holder shall have provided wiring instructions to the Trustee on or before the related Record Date, or, if wire transfer cannot be effected, by Dollar check drawn on a bank as provided in the Indenture and mailed to the Registered Holder at its address in the Notes Register.
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Interest will cease to accrue on this Note, or in the case of a partial repayment, on such part, from the date of repayment or Stated Maturity unless payment of principal is improperly withheld or unless a Default is otherwise made with respect to such payments of principal.
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Notwithstanding the foregoing, the final payment of interest and principal due on this Note shall be made only upon presentation and surrender of this Note (except as otherwise provided in the Indenture) at the Corporate Trust Office of the Trustee or at any Paying Agent.
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The Registered Holder of this Note shall be treated as the owner hereof for all purposes.
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Except as specifically provided herein and in the Indenture, neither the Issuer nor the Co-Issuer shall be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.
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Unless the certificate of authentication hereon has been executed by the Trustee by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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This Note is one of a duly authorized issue of ClassΒ A Senior Secured Floating Rate Notes Due 2023, of the Issuer and the Co-Issuer (the βClassΒ A Notesβ), limited in aggregate principal amount to U.S.$156,000,000Β issued under an indenture dated as of JanuaryΒ 28, 2013 (the βIndentureβ) by and among the Issuer, the Co-Issuer, U.S. Bank National Association, as trustee (in such capacity and together with any successor trustee permitted under the Indenture, the βTrusteeβ), paying agent, calculation agent, transfer agent, custodial securities intermediary, backup advancing agent and notes registrar and Arbor Realty SR,Β Inc., as advancing agent.Β Also authorized under the Indenture are (a)Β up to U.S.$21,000,000 ClassΒ B Secured Floating Rate Notes Due 2023 (the βClassΒ B Notesβ and, together with the ClassΒ A Notes, the βNotesβ).
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Concurrently with the issuance of the Notes, the Issuer also will issue preferred shares (the βPreferred Sharesβ), under the Issuerβs Memorandum and Articles of Association as part of its issued share capital.
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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 Co-Issuer, the Trustee, the Advancing Agent, the Holders of the Notes and the Preferred Shares and the terms upon which the Notes and the Preferred Shares are, and are to be, executed, authenticated and delivered.
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Payments of principal of the ClassΒ A Notes shall be payable in accordance with SectionΒ 11.1(a)Β of the Indenture.
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Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture.
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Pursuant to SectionΒ 9.1(a)Β of the Indenture, the Notes are subject to redemption by the Issuer at the direction of the Loan Obligation Manager (such redemption, a βClean-up Call Redemptionβ), in whole but not in part, at a price equal to the applicable Redemption Price, upon notice given in the manner provided in the Indenture, on any Payment Date on or after the Payment Date on which the Aggregate Outstanding Amount of the Notes has been reduced to 10% of the Aggregate Outstanding Amount of the Notes on the Closing Date; provided, that the funds available to be used for such redemption will be sufficient to pay the Total Redemption Price.
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Pursuant to SectionΒ 9.1(b)Β of the Indenture, the Notes and the Preferred Shares shall be redeemable, in whole but not in part, by Act of a Majority of the Preferred Shares delivered to the Trustee, on the Payment Date following the occurrence of a Tax Event if the Tax Materiality Condition is satisfied at a price equal to the applicable Redemption Prices; provided that that the funds available to be used for such Tax Redemption will be sufficient to pay the Total Redemption Price.
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Pursuant to SectionΒ 9.1(c)Β of the Indenture, the Notes and the Preferred Shares are subject to redemption, in whole but not in part, by the Issuer at a price equal to the applicable Redemption Prices, on any Payment Date occurring after the end of the Non-call Period at the direction of the Issuer (such redemption, an βOptional Redemptionβ) by Act of a Majority of the Preferred Shares delivered to the Trustee; provided that the funds available to be used for such Optional Redemption will be sufficient to pay the Total Redemption Price.
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Notes for whose redemption and payment provision is made in accordance with the Indenture shall cease to bear interest on the applicable Redemption Date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest thereon).
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Pursuant to SectionΒ 9.5 of the Indenture, if any of the Note Protection Tests applicable to any ClassΒ of Notes is not satisfied as of the most recent Measurement Date the Notes shall be redeemed from in accordance with SectionΒ 9.6 and the Priority of Payments set forth in the Indenture, only, and to the extent necessary, to cause each of the Note Protection Tests to be satisfied.
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If an Event of Default shall occur and be continuing, the ClassΒ A Notes may become or be declared due and payable in the manner and with the effect provided in the Indenture.
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At any time after a declaration of acceleration of Maturity of the Notes has been made, and before a judgment or decree for payment of the amounts due has been obtained by the Trustee as provided in the Indenture, a Majority of each ClassΒ of Notes (voting as a separate Class), other than with respect to an Event of Default specified in SectionΒ 5.1(d), 5.1(e), 5.1(h)Β or 5.1(i), by written notice to the Issuer, the Co-Issuer and the Trustee, may rescind and annul such declaration and its consequences if certain conditions set forth in the Indenture are satisfied.
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The Indenture may be amended and supplemented under the circumstances, and in accordance with the conditions, set forth therein.
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The Notes are issuable in minimum denominations of $500,000 and integral multiples of $500 in excess thereof.
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The principal of each Note shall be payable on the Stated Maturity Date, unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise.
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The term βIssuerβ as used in this Note includes any successor-in-interest to the Issuer under the Indenture and the term βCo-Issuerβ as used in this Note includes any successor-in-interest to the Co-Issuer under the Indenture.
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Each purchaser and any subsequent transferee of this Note or any interest herein shall, by virtue of its purchase or other acquisition of this Note or any interest herein, be deemed to have agreed to treat this Note as debt for U.S. federal income tax purposes.
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In connection with the purchase of this Note, the Holder and each beneficial owner thereof agrees that: (A)Β none of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Placement Agent, the Trustee, the Collateral Administrator or any of their respective affiliates is acting as a fiduciary or financial or investment advisor for such Holder or beneficial owner; (B) such Holder or beneficial owner is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates other than any statements in the final offering memorandum for such Notes, and such Holder or beneficial owner has read and understands such final offering memorandum; (C) such Holder or beneficial owner has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it has deemed necessary and has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates.
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Each Holder, by its acquisition of an interest in the Notes, shall be deemed to have represented to the Issuer, the Co-Issuer, the Loan Obligation Manager, the CLO Servicer, the Placement Agent and the Trustee that either (A)Β no part of the funds being used to pay the purchase price for such Notes constitutes an asset of any βemployee benefit planβ (as defined in SectionΒ 3(3)Β of ERISA) or βplanβ (as defined in SectionΒ 4975(e)(1)Β of the Code) that is subject to Title I of ERISA or SectionΒ 4975 of the Code or any other employee benefit plan or plan which is subject to any federal, state or local law (βSimilar Lawβ) that is substantially similar to Section 406 of ERISA or SectionΒ 4975 of the Code (each a βBenefit Planβ), or an entity whose underlying assets include plan assets of any such Benefit Plan, or (B)Β if the funds being used to pay the purchase price for such Notes include plan assets
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of any Benefit Plan, its purchase and holding will not constitute or result in a non-exempt prohibited transaction under SectionΒ 406 of ERISA or SectionΒ 4975 of the Code, or in the case of any Benefit Plan subject to Similar Law, will not constitute or result in a non-exempt violation of Similar Law.
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Title to Notes shall pass by registration in the Register kept by the Trustee, acting through its Corporate Trust Office.
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No service charge shall be made to a Holder for any registration of transfer or exchange of this Note, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
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No right or remedy conferred herein or in the Indenture upon or reserved to the Trustee or to the Holder hereof 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 thereunder or now or hereafter existing at law or in equity or otherwise.Β The assertion or employment of any right or remedy hereunder or under the Indenture, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
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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.
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THE HOLDER OF THIS NOTE AGREES NOT TO CAUSE THE FILING OF A PETITION IN BANKRUPTCY AGAINST THE ISSUER OR THE CO-ISSUER IN ANY APPLICABLE OR RELEVANT JURISDICTION UNTIL AT LEAST ONE YEAR AND ONE DAY (OR,Β IF LONGER, THE APPLICABLE PREFERENCE PERIOD THEN IN EFFECT), AFTER THE PAYMENT IN FULL OF ALL NOTES ISSUED UNDER THE INDENTURE.
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AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the Co-Issuers have caused this Note to be duly executed.
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Dated as of JanuaryΒ 28, 2013
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ARBOR REALTY COLLATERALIZED LOAN | |
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By: |
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ARBOR REALTY COLLATERALIZED LOAN | |
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CERTIFICATE OF AUTHENTICATION
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This is one of the Notes referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION, as Trustee | |
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By: |
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Authenticating Agent |
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ASSIGNMENT FORM
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For value received |
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hereby sell, assign and transfer unto | |||||
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Please insert social security or | ||||
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other identifying number of assignee | ||||
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Please print or type name | ||||
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and address, including zip code, | ||||
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of assignee: | ||||
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the within Note and does hereby irrevocably constitute and appoint Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Attorney to transfer the Note on the books of the Issuer with full power of substitution in the premises.
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Date: |
Your Signature: |
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(Sign exactly as your name |
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appears on this Note) |
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EXHIBITΒ B-1
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FORMΒ OF CLASSΒ B SECURED FLOATING RATE NOTE DUE 2023
[REGULATION S] [RULE 144A] GLOBAL SECURITY
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THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND NEITHER THE ISSUER NOR THE CO-ISSUER HAS BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE β1940 ACTβ).Β THIS NOTE MAYΒ NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A)(1)Β TO A QUALIFIED INSTITUTIONAL BUYER (A βQIBβ) WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) WHO IS A QUALIFIED PURCHASER AS DEFINED IN SECTIONΒ 2(A)(51) OF THE 1940 ACT (A βQUALIFIED PURCHASERβ) AND IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER WHO IS A QUALIFIED PURCHASER,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT,Β IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, OR (2)Β TO A NON-U.S.Β PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT (βREGULATION Sβ) IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, AND (B)Β IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.Β EACH PURCHASER OF A GLOBAL SECURITY WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTIONΒ 2.5 OF THE INDENTURE.Β ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE CO-ISSUER, AS APPLICABLE, THE TRUSTEE OR ANY INTERMEDIARY.Β IF AT ANY TIME, THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE, DETERMINE OR ARE NOTIFIED THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH SECURITY WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE TRUSTEE MAYΒ CONSIDER THE ACQUISITION OF THIS NOTE OR SUCH INTEREST IN SUCH SECURITY VOID AND REQUIRE THAT THIS NOTE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE.
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ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDEΒ & CO. HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (βDTCβ), NEW YORK, NEW YORK, TO THE CO-ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDEΒ & CO. OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDEΒ & CO.).
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THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.Β THIS NOTE MAYΒ NOT BE EXCHANGED OR TRANSFERRED IN WHOLE OR IN PARTΒ FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THAT DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
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PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.Β ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAYΒ BE LESS THAN THE AMOUNT SHOWN
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ON THE FACE HEREOF.Β ANY PERSON ACQUIRING THIS NOTE MAYΒ ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
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[AN INTEREST IN THIS NOTE MAYΒ NOT BE HELD BY A PERSON THAT IS A U.S. PERSON (AS DEFINED IN REGULATION S) AT ANY TIME.Β IN ADDITION, AN INTEREST IN THIS NOTE MAYΒ ONLY BE HELD THROUGH EUROCLEAR OR CLEARSTREAM, LUXEMBOURG AT ANY TIME.](1)
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(1)Β Β Regulation S Global Securities.
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ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD.
ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC
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CLASSΒ B SECURED FLOATING RATE NOTE DUE 2023
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No.Β [Reg. S][144A] - |
Up to |
CUSIP No.Β G04475 AB8(2) 03878D AC8(3) |
U.S.$Β 21,000,000 |
ISIN: USG04475AB80(4) US03878DAC83(5) |
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Each of ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD., a Cayman Islands exempted company with limited liability (the βIssuerβ) and ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC, a Delaware limited liability company (the βCo-Issuerβ) for value received, hereby promises to pay to CEDEΒ & CO. or its registered assigns (a)Β upon presentation and surrender of this Note (except as otherwise permitted by the Indenture referred to below), the principal sum of up to TWENTY-ONE MILLION United States Dollars (U.S.$ 21,000,000), or such other principal sum as is equal to the aggregate principal amount of the ClassΒ B Notes identified from time to time on the records of the Trustee and Schedule A hereto as being represented by this [RuleΒ 144A] [Regulation S] Global Security, on the Payment Date occurring in February, 2023 (the βStated Maturityβ), to the extent not previously paid, in accordance with the Indenture referred to below unless the unpaid principal of this Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise and (b)Β the ClassΒ B Interest Distribution Amount allocable to this Note in accordance with the Indenture payable initially on MarchΒ 15, 2013, and thereafter monthly on the 15thΒ day of each calendar month (or if such day is not a Business Day, then on the next succeeding Business Day) (each, a βPayment Dateβ).Β Interest on the ClassΒ B Notes shall accrue at the ClassΒ B Note Interest Rate and shall be computed on the basis of the actual number of days in the related Interest Accrual Period divided by 360.Β The interest so payable 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 Record Date for such interest, which shall be the fifteenth day (whether or not a Business Day) prior to the applicable Payment Date.
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The obligations of the Issuer and the Co-Issuer under this Note and the Indenture are limited recourse obligations of the Issuer and non-recourse obligations of the Co-Issuer payable solely from the Loan Obligations and other Assets pledged by the Issuer as security for the Notes under the Indenture, and in the event the Loan Obligations and such other Assets are insufficient to satisfy such obligations, any claims of the Holders of the Notes shall be extinguished, all in accordance with the Indenture.
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The payment of interest on this Note is senior to the payments of the principal of, and interest on, the Preferred Shares.Β Except as set forth in the Indenture, the payment of principal of this Note is subordinate to the payments of principal of and interest on the ClassΒ A Notes and no payments of principal on the ClassΒ B Notes will be made until the ClassΒ A Notes are paid in full.Β The principal of this Note shall be due and payable no later than the Stated Maturity unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise; provided, however, that, except as set forth in the Indenture, the payment of principal of this Note may only occur after principal on the ClassΒ A Notes has been paid in full and is subordinated to the payment on each Payment Date of the principal and interest due and payable on the ClassΒ A Notes and other amounts in accordance with the Priority of Payments, all in accordance with the Indenture.
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Payments in respect of principal and interest and any other amounts due on any Payment Date on this Note shall be payable by the Trustee or a Paying Agent, subject to any laws or regulations applicable thereto, by wire transfer in immediately available funds to a Dollar account maintained by the Registered Holder hereof;
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(2)Β Β For Regulation S Global Security.
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(3)Β Β For RuleΒ 144A Global Security.
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(4)Β Β For Regulation S Global Security.
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(5)Β Β For RuleΒ 144A Global Security.
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provided that the Registered Holder shall have provided wiring instructions to the Trustee on or before the related Record Date, or, if wire transfer cannot be effected, by Dollar check drawn on a bank as provided in the Indenture and mailed to the Registered Holder at its address in the Notes Register.
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Interest will cease to accrue on this Note, or in the case of a partial repayment, on such part, from the date of repayment or Stated Maturity unless payment of principal is improperly withheld or unless a Default is otherwise made with respect to such payments of principal.
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Notwithstanding the foregoing, the final payment of interest and principal due on this Note shall be made only upon presentation and surrender of this Note (except as otherwise provided in the Indenture) at the Corporate Trust Office of the Trustee or at any Paying Agent.
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The Registered Holder of this Note shall be treated as the owner hereof for all purposes.
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Except as specifically provided herein and in the Indenture, neither the Issuer nor the Co-Issuer shall be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.
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Unless the certificate of authentication hereon has been executed by the Trustee by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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This Note is one of a duly authorized issue of ClassΒ B Secured Floating Rate Notes Due 2023, of the Issuer and the Co-Issuer (the βClassΒ B Notesβ), limited in aggregate principal amount to U.S.$21,000,000 issued under an indenture dated as of JanuaryΒ 28, 2013 (the βIndentureβ) by and among the Issuer, the Co-Issuer, U.S. Bank National Association, as trustee(in such capacity and together with any successor trustee permitted under the Indenture, the βTrusteeβ), paying agent, calculation agent, transfer agent, custodial securities intermediary, backup advancing agent and notes registrarΒ and Arbor Realty SR,Β Inc., as advancing agent.Β Also authorized under the Indenture are (a)Β U.S. 156,000,000 ClassΒ A Senior Secured Floating Rate Notes Due 2023, (the βClassΒ A Notesβ and, together with the ClassΒ B Notes, the βNotesβ).
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Concurrently with the issuance of the Notes, the Issuer also will issue preferred shares (the βPreferred Sharesβ), under the Issuerβs Memorandum and Articles of Association as part of its issued share capital.
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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 Co-Issuer, the Trustee, the Advancing Agent, the Holders of the Notes and the Preferred Shares and the terms upon which the Notes and the Preferred Shares are, and are to be, executed, authenticated and delivered.
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Payments of principal of the ClassΒ B Notes shall be payable in accordance with SectionΒ 11.1(a)Β of the Indenture.
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Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture.
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Pursuant to SectionΒ 9.1(a)Β of the Indenture, the Notes are subject to redemption by the Issuer at the direction of the Loan Obligation Manager (such redemption, a βClean-up Call Redemptionβ), in whole but not in part, at a price equal to the applicable Redemption Price, upon notice given in the manner provided in the Indenture, on any Payment Date on or after the Payment Date on which the Aggregate Outstanding Amount of the Notes has been reduced to 10% of the Aggregate Outstanding Amount of the Notes on the Closing Date; provided, that the funds available to be used for such redemption will be sufficient to pay the Total Redemption Price.
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Pursuant to SectionΒ 9.1(b)Β of the Indenture, the Notes and the Preferred Shares shall be redeemable, in whole but not in part, by Act of a Majority of the Preferred Shares delivered to the Trustee, on the Payment Date following the occurrence of a Tax Event if the Tax Materiality Condition is satisfied at a price equal
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to the applicable Redemption Prices; provided that that the funds available to be used for such Tax Redemption will be sufficient to pay the Total Redemption Price
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Pursuant to SectionΒ 9.1(c)Β of the Indenture, the Notes and the Preferred Shares are subject to redemption, in whole but not in part, by the Issuer at a price equal to the applicable Redemption Prices, on any Payment Date occurring after the end of the Non-call Period at the direction of the Issuer (such redemption, an βOptional Redemptionβ) by Act of a Majority of the Preferred Shares delivered to the Trustee; provided, that the funds available to be used for such Optional Redemption will be sufficient to pay the Total Redemption Price.
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Notes for whose redemption and payment provision is made in accordance with the Indenture shall cease to bear interest on the applicable Redemption Date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest thereon).
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Pursuant to SectionΒ 9.5 of the Indenture, if any of the Note Protection Tests applicable to any ClassΒ of Notes is not satisfied as of the most recent Measurement Date the Notes shall be redeemed from in accordance with SectionΒ 9.6 and the Priority of Payments set forth in the Indenture, only, and to the extent necessary, to cause each of the Note Protection Tests to be satisfied.
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If an Event of Default shall occur and be continuing, the ClassΒ B Notes may become or be declared due and payable in the manner and with the effect provided in the Indenture.
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At any time after a declaration of acceleration of Maturity of the Notes has been made, and before a judgment or decree for payment of the amounts due has been obtained by the Trustee as provided in the Indenture, a Majority of each ClassΒ of Notes (voting as a separate Class), other than with respect to an Event of Default specified in SectionΒ 5.1(d), 5.1(e), 5.1(h)Β or 5.1(i), by written notice to the Issuer, the Co-Issuer and the Trustee, may rescind and annul such declaration and its consequences if certain conditions set forth in the Indenture are satisfied.
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The Indenture may be amended and supplemented under the circumstances, and in accordance with the conditions, set forth therein.
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The Notes are issuable in minimum denominations of $500,000 and integral multiples of $500 in excess thereof.
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The principal of each Note shall be payable on the Stated Maturity, unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise.
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The term βIssuerβ as used in this Note includes any successor-in-interest to the Issuer under the Indenture and the term βCo-Issuerβ as used in this Note includes any successor-in-interest to the Co-Issuer under the Indenture.
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Each purchaser and any subsequent transferee of this Note or any interest herein shall, by virtue of its purchase or other acquisition of this Note or any interest herein, be deemed to have agreed to treat this Note as debt for U.S. federal income tax purposes.
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In connection with the purchase of this Note, the Holder and each beneficial owner thereof agrees that: (A)Β none of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Placement Agent, the Trustee, the Collateral Administrator or any of their respective affiliates is acting as a fiduciary or financial or investment advisor for such Holder or beneficial owner; (B)Β such Holder or beneficial owner is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates other than any statements in the final offering memorandum for such Notes, and such Holder or beneficial owner has read and understands such final offering memorandum; (C)Β such Holder or beneficial owner has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it has deemed necessary and has made its own investment decisions (including
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decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates.
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Each Holder, by its acquisition of an interest in the Notes, shall be deemed to have represented to the Issuer, the Co-Issuer, the Loan Obligation Manager, the CLO Servicer, the Placement Agent and the Trustee that either (A)Β no part of the funds being used to pay the purchase price for such Notes constitutes an asset of any βemployee benefit planβ (as defined in SectionΒ 3(3)Β of ERISA) or βplanβ (as defined in SectionΒ 4975(e)(1)Β of the Code) that is subject to Title I of ERISA or SectionΒ 4975 of the Code or any other employee benefit plan or plan which is subject to any federal, state or local law (βSimilar Lawβ) that is substantially similar to SectionΒ 406 of ERISA or SectionΒ 4975 of the Code (each a βBenefit Planβ), or an entity whose underlying assets include plan assets of any such Benefit Plan, or (B)Β if the funds being used to pay the purchase price for such Notes include plan assets of any Benefit Plan, its purchase and holding will not constitute or result in a non-exempt prohibited transaction under SectionΒ 406 of ERISA or SectionΒ 4975 of the Code, or in the case of any Benefit Plan subject to Similar Law, will not constitute or result in a non-exempt violation of Similar Law.
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Title to Notes shall pass by registration in the Register kept by the Trustee, acting through its Corporate Trust Office.
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No service charge shall be made to a Holder for any registration of transfer or exchange of this Note, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
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No right or remedy conferred herein or in the Indenture upon or reserved to the Trustee or to the Holder hereof 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 thereunder or now or hereafter existing at law or in equity or otherwise.Β The assertion or employment of any right or remedy hereunder or under the Indenture, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
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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.
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THE HOLDER OF THIS NOTE AGREES NOT TO CAUSE THE FILING OF A PETITION IN BANKRUPTCY AGAINST THE ISSUER OR THE CO-ISSUER IN ANY APPLICABLE OR RELEVANT JURISDICTION UNTIL AT LEAST ONE YEAR AND ONE DAY (OR,Β IF LONGER, THE APPLICABLE PREFERENCE PERIOD THEN IN EFFECT), AFTER THE PAYMENT IN FULL OF ALL NOTES ISSUED UNDER THE INDENTURE.
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AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the Co-Issuers have caused this Note to be duly executed.
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Dated as of JanuaryΒ 28, 2013 |
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ARBOR REALTY COLLATERALIZED LOAN | |
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OBLIGATION 2013-1,Β LTD., as Issuer | |
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By: |
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Name: |
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Title: |
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ARBOR REALTY COLLATERALIZED LOAN | |
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OBLIGATION 2013-1, LLC, as Co-Issuer | |
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By: |
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CERTIFICATE OF AUTHENTICATION
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This is one of the Notes referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION, | |
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as Trustee | |
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By: |
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Authenticating Agent |
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ASSIGNMENT FORM
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For value received |
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hereby sell, assign and transfer unto |
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Please insert social security or |
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other identifying number of assignee |
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Please print or type name |
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and address, including zip code, |
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of assignee: |
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the within Note and does hereby irrevocably constitute and appoint Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Attorney to transfer the Note on the books of the Issuer with full power of substitution in the premises. | ||||
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Date: |
Your Signature: |
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(Sign exactly as your name | ||
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appears on this Note) |
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SCHEDULE A
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This Note shall be issued in the original principal balance of U.S.$[Β·](6)[Β·](7) on the Closing Date.Β The following exchanges of a part of this [RuleΒ 144A][Regulation S] Global Security have been made:
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AmountΒ of |
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AmountΒ of |
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PrincipalΒ Amount |
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(6)Β Β RuleΒ 144A Global Security
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(7)Β Β Regulation S Global Security
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EXHIBITΒ B-2
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FORMΒ OF CLASSΒ B SECURED FLOATING RATE NOTE DUE 2023
DEFINITIVE NOTE
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THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ) OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND NEITHER THE ISSUER NOR THE CO-ISSUER HAS BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE β1940 ACTβ).Β THIS NOTE MAYΒ NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT (A)(1)Β TO A QUALIFIED INSTITUTIONAL BUYER (A βQIBβ) WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) WHO IS A QUALIFIED PURCHASER AS DEFINED IN SECTIONΒ 2(A)(51) OF THE 1940 ACT (A βQUALIFIED PURCHASERβ) AND IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER WHO IS A QUALIFIED PURCHASER,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT,Β IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, OR (2)Β TO A NON-U.S.Β PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT (βREGULATION Sβ) IN A PRINCIPAL AMOUNT OF NOT LESS THAN $500,000 (AND INTEGRAL MULTIPLES OF $500 IN EXCESS THEREOF), SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, AND (B)Β IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.Β EACH PURCHASER OF A GLOBAL SECURITY WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTIONΒ 2.5 OF THE INDENTURE.Β ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE CO-ISSUER, AS APPLICABLE, THE TRUSTEE OR ANY INTERMEDIARY.Β IF AT ANY TIME, THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE, DETERMINE OR ARE NOTIFIED THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH SECURITY WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE TRUSTEE MAYΒ CONSIDER THE ACQUISITION OF THIS NOTE OR SUCH INTEREST IN SUCH SECURITY VOID AND REQUIRE THAT THIS NOTE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER AND THE CO-ISSUER,Β IF APPLICABLE.
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ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD.
ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC
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CLASSΒ B SECURED
FLOATING RATE NOTE DUE 2023
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No.Β IAI - |
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CUSIP No.Β 03878D AD6 |
U.S.$[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] |
ISIN: US03878DAD66 |
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Each of ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1,Β LTD., a Cayman Islands exempted company with limited liability (the βIssuerβ) and ARBOR REALTY COLLATERALIZED LOAN OBLIGATION 2013-1, LLC, a Delaware limited liability company (the βCo-Issuerβ) for value received, hereby promises to pay to [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] or its registered assigns (a)Β upon presentation and surrender of this Note (except as otherwise permitted by the Indenture referred to below), the principal sum of [Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ] United States Dollars (U.S.$[Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ]) on the Payment Date occurring in FebruaryΒ 2023 (the βStated Maturityβ), to the extent not previously paid, in accordance with the Indenture referred to below unless the unpaid principal of this Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise and (b)Β the ClassΒ B Interest Distribution Amount allocable to this Note in accordance with the Indenture payable initially on MarchΒ 15, 2013, and thereafter monthly on the 15thΒ day of each calendar month (or if such day is not a Business Day, then on the next succeeding Business Day) (each, a βPayment Dateβ).Β Interest on the ClassΒ B Notes shall accrue at the ClassΒ B Note Interest Rate and shall be computed on the basis of the actual number of days in the related Interest Accrual Period divided by 360.Β The interest so payable 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 Record Date for such interest, which shall be the fifteenth day (whether or not a Business Day) prior to the applicable Payment Date.
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The obligations of the Issuer and the Co-Issuer under this Note and the Indenture are limited recourse obligations of the Issuer and non-recourse obligations of the Co-Issuer payable solely from the Loan Obligations and other Assets pledged by the Issuer as security for the Notes under the Indenture, and in the event the Loan Obligations and such other Assets are insufficient to satisfy such obligations, any claims of the Holders of the Notes shall be extinguished, all in accordance with the Indenture.
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The payment of interest on this Note is senior to the payments of the principal of, and interest on, the Preferred Shares.Β Except as set forth in the Indenture, the payment of principal of this Note is subordinate to the payments of principal of and interest on the ClassΒ A Notes and no payments of principal on the ClassΒ B Notes will be made until the ClassΒ A Notes are paid in full.Β The principal of this Note shall be due and payable no later than the Stated Maturity unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise; provided, however, that, except as set forth in the Indenture, the payment of principal of this Note may only occur after principal on the ClassΒ A Notes has been paid in full and is subordinated to the payment on each Payment Date of the principal and interest due and payable on the ClassΒ A Notes and other amounts in accordance with the Priority of Payments, all in accordance with the Indenture.
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Payments in respect of principal and interest and any other amounts due on any Payment Date on this Note shall be payable by the Trustee or a Paying Agent, subject to any laws or regulations applicable thereto, by wire transfer in immediately available funds to a Dollar account maintained by the Registered Holder hereof; provided that the Registered Holder shall have provided wiring instructions to the Trustee on or before the related Record Date, or, if wire transfer cannot be effected, by Dollar check drawn on a bank as provided in the Indenture and mailed to the Registered Holder at its address in the Notes Register.
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Interest will cease to accrue on this Note, or in the case of a partial repayment, on such part, from the date of repayment or Stated Maturity unless payment of principal is improperly withheld or unless a Default is otherwise made with respect to such payments of principal.
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Notwithstanding the foregoing, the final payment of interest and principal due on this Note shall be made only upon presentation and surrender of this Note (except as otherwise provided in the Indenture) at the Corporate Trust Office of the Trustee or at any Paying Agent.
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The Registered Holder of this Note shall be treated as the owner hereof for all purposes.
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Except as specifically provided herein and in the Indenture, neither the Issuer nor the Co-Issuer shall be required to make any payment with respect to any tax, assessment or other governmental charge imposed by any government or any political subdivision or taxing authority thereof or therein.
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Unless the certificate of authentication hereon has been executed by the Trustee by the manual signature of one of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
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This Note is one of a duly authorized issue of ClassΒ B Secured Floating Rate Notes Due 2023, of the Issuer and the Co-Issuer (the βClassΒ B Notesβ), limited in aggregate principal amount to U.S.$21,000,000 issued under an indenture dated as of JanuaryΒ 28, 2013 (the βIndentureβ) by and among the Issuer, the Co-Issuer, U.S. Bank National Association, as trustee (in such capacity and together with any successor trustee permitted under the Indenture, the βTrusteeβ), paying agent, calculation agent, transfer agent, custodial securities intermediary, backup advancing agent and notes registrarΒ and Arbor Realty SR,Β Inc., as advancing agent.Β Also authorized under the Indenture are (a)Β U.S.$156,000,000 ClassΒ A Senior Secured Floating Rate Notes Due 2023, (the βClassΒ A Notesβ and, together with the ClassΒ B Notes, the βNotesβ).
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Concurrently with the issuance of the Notes, the Issuer also will issue preferred shares (the βPreferred Sharesβ), under the Issuerβs Memorandum and Articles of Association as part of its issued share capital.
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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 Co-Issuer, the Trustee, the Advancing Agent, the Holders of the Notes and the Preferred Shares and the terms upon which the Notes and the Preferred Shares are, and are to be, executed, authenticated and delivered.
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Payments of principal of the ClassΒ B Notes shall be payable in accordance with SectionΒ 11.1(a)Β of the Indenture.
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Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Indenture.
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Pursuant to SectionΒ 9.1(a)Β of the Indenture, the Notes are subject to redemption by the Issuer at the direction of the Loan Obligation Manager (such redemption, a βClean-up Call Redemptionβ), in whole but not in part, at a price equal to the applicable Redemption Price, upon notice given in the manner provided in the Indenture, on any Payment Date on or after the Payment Date on which the Aggregate Outstanding Amount of the Notes has been reduced to 10% of the Aggregate Outstanding Amount of the Notes on the Closing Date; provided, that the funds available to be used for such redemption will be sufficient to pay the Total Redemption Price.
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Pursuant to SectionΒ 9.1(b)Β of the Indenture, the Notes and the Preferred Shares shall be redeemable, in whole but not in part, by Act of a Majority of the Preferred Shares delivered to the Trustee, on the Payment Date following the occurrence of a Tax Event if the Tax Materiality Condition is satisfied at a price equal to the applicable Redemption Prices; provided that that the funds available to be used for such Tax Redemption will be sufficient to pay the Total Redemption Price
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Pursuant to SectionΒ 9.1(c)Β of the Indenture, the Notes and the Preferred Shares are subject to redemption, in whole but not in part, by the Issuer at a price equal to the applicable Redemption Prices, on any Payment Date occurring after the end of the Non-call Period at the direction of the Issuer (such redemption, an βOptional Redemptionβ) by Act of a Majority of the Preferred Shares delivered to the Trustee; provided, that the funds available to be used for such Optional Redemption will be sufficient to pay the Total Redemption Price.
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Notes for whose redemption and payment provision is made in accordance with the Indenture shall cease to bear interest on the applicable Redemption Date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest thereon).
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Pursuant to SectionΒ 9.5 of the Indenture, if any of the Note Protection Tests applicable to any ClassΒ of Notes is not satisfied as of the most recent Measurement Date the Notes shall be redeemed from in accordance with SectionΒ 9.6 and the Priority of Payments set forth in the Indenture, only, and to the extent necessary, to cause each of the Note Protection Tests to be satisfied.
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If an Event of Default shall occur and be continuing, the ClassΒ B Notes may become or be declared due and payable in the manner and with the effect provided in the Indenture.
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At any time after a declaration of acceleration of Maturity of the Notes has been made, and before a judgment or decree for payment of the amounts due has been obtained by the Trustee as provided in the Indenture, a Majority of each ClassΒ of Notes (voting as a separate Class), other than with respect to an Event of Default specified in SectionΒ 5.1(d), 5.1(e), 5.1(h)Β or 5.1(i), by written notice to the Issuer, the Co-Issuer and the Trustee, may rescind and annul such declaration and its consequences if certain conditions set forth in the Indenture are satisfied.
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The Indenture may be amended and supplemented under the circumstances, and in accordance with the conditions, set forth therein.
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The Notes are issuable in minimum denominations of $500,000 and integral multiples of $500 in excess thereof.
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The principal of each Note shall be payable on the Stated Maturity, unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise.
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The term βIssuerβ as used in this Note includes any successor-in-interest to the Issuer under the Indenture and the term βCo-Issuerβ as used in this Note includes any successor-in-interest to the Co-Issuer under the Indenture.
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Each purchaser and any subsequent transferee of this Note or any interest herein shall, by virtue of its purchase or other acquisition of this Note or any interest herein, be deemed to have agreed to treat this Note as debt for U.S. federal income tax purposes.
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In connection with the purchase of this Note, the Holder and each beneficial owner thereof agrees that: (A)Β none of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Placement Agent, the Trustee, the Collateral Administrator or any of their respective affiliates is acting as a fiduciary or financial or investment advisor for such Holder or beneficial owner; (B)Β such Holder or beneficial owner is not relying (for purposes of making any investment decision or otherwise) upon any advice, counsel or representations (whether written or oral) of the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates other than any statements in the final offering memorandum for such Notes, and such Holder or beneficial owner has read and understands such final offering memorandum; (C)Β such Holder or beneficial owner has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisors to the extent it has deemed necessary and has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisors as it has deemed necessary and not upon any view expressed by the Co-Issuers, the Loan Obligation Manager, the CLO Servicer, the Trustee, the Collateral Administrator, the Placement Agent or any of their respective affiliates.
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Each Holder, by its acquisition of an interest in the Notes, shall be deemed to have represented to the Issuer, the Co-Issuer, the Loan Obligation Manager, the CLO Servicer, the Placement Agent and the Trustee that either (A)Β no part of the funds being used to pay the purchase price for such Notes constitutes an asset of any βemployee benefit planβ (as defined in SectionΒ 3(3)Β of ERISA) or βplanβ (as defined in SectionΒ 4975(e)(1)Β of the
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Code) that is subject to Title I of ERISA or SectionΒ 4975 of the Code or any other employee benefit plan or plan which is subject to any federal, state or local law (βSimilar Lawβ) that is substantially similar to SectionΒ 406 of ERISA or SectionΒ 4975 of the Code (each a βBenefit Planβ), or an entity whose underlying assets include plan assets of any such Benefit Plan, or (B)Β if the funds being used to pay the purchase price for such Notes include plan assets of any Benefit Plan, its purchase and holding will not constitute or result in a non-exempt prohibited transaction under SectionΒ 406 of ERISA or SectionΒ 4975 of the Code, or in the case of any Benefit Plan subject to Similar Law, will not constitute or result in a non-exempt violation of Similar Law.
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Title to Notes shall pass by registration in the Register kept by the Trustee, acting through its Corporate Trust Office.
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No service charge shall be made to a Holder for any registration of transfer or exchange of this Note, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
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No right or remedy conferred herein or in the Indenture upon or reserved to the Trustee or to the Holder hereof 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 thereunder or now or hereafter existing at law or in equity or otherwise.Β The assertion or employment of any right or remedy hereunder or under the Indenture, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
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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.
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THE HOLDER OF THIS NOTE AGREES NOT TO CAUSE THE FILING OF A PETITION IN BANKRUPTCY AGAINST THE ISSUER OR THE CO-ISSUER IN ANY APPLICABLE OR RELEVANT JURISDICTION UNTIL AT LEAST ONE YEAR AND ONE DAY (OR,Β IF LONGER, THE APPLICABLE PREFERENCE PERIOD THEN IN EFFECT), AFTER THE PAYMENT IN FULL OF ALL NOTES ISSUED UNDER THE INDENTURE.
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AS PROVIDED IN THE INDENTURE, THE INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
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IN WITNESS WHEREOF, the Co-Issuers have caused this Note to be duly executed.
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Dated as of JanuaryΒ 28, 2013 |
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ARBOR REALTY COLLATERALIZED LOAN | |
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OBLIGATION 2013-1,Β LTD., as Issuer | |
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By: |
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Name: |
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Title: |
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ARBOR REALTY COLLATERALIZED LOAN | |
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OBLIGATION 2013-1, LLC, as Co-Issuer | |
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By: |
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Name: |
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Title: |
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CERTIFICATE OF AUTHENTICATION
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This is one of the Notes referred to in the within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION, | |
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as Trustee | |
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By: |
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Authenticating Agent |
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ASSIGNMENT FORM
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For value received |
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hereby sell, assign and transfer unto |
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Please insert social security or |
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other identifying number of assignee |
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Please print or type name |
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and address, including zip code, |
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of assignee: |
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the within Note and does hereby irrevocably constitute and appoint Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Attorney to transfer the Note on the books of the Issuer with full power of substitution in the premises. | ||||
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Date: |
Your Signature: |
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(Sign exactly as your name | ||
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appears on this Note) |
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EXHIBITΒ C-1
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FORMΒ OF TRANSFER CERTIFICATE
FOR (1)Β TRANSFER AT THE CLOSING TO A REGULATION S GLOBAL SECURITY OR
(2)Β SUBSEQUENT TRANSFER FROM A RULEΒ 144A GLOBAL SECURITY TO A REGULATIONΒ S
GLOBAL SECURITY
(Transfer pursuant to ArticleΒ 2 of the Indenture)
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U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attn:Β Corporate Trust Services β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
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Re:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., as Issuer and Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer of:Β the ClassΒ A Senior Secured Floating Rate Notes, Due 2023 and the ClassΒ B Secured Floating Rate Notes, Due 2023 (the βTransferred Notesβ)
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Reference is hereby made to the Indenture, dated as of JanuaryΒ 28, 2013 (the βIndentureβ) by and among Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., as Issuer and Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer of the ClassΒ A Notes and the ClassΒ B Notes, U.S. Bank National Association, as Trustee, and Arbor Realty SR,Β Inc., as Advancing Agent.Β Capitalized terms used but not defined herein will have the meanings assigned to such terms in the Indenture and if not defined in the Indenture then such terms will have the meanings assigned to them in RegulationΒ S (βRegulationΒ Sβ), or RuleΒ 144A (βRuleΒ 144Aβ), under the United States Securities Act of 1933, as amended (the βSecurities Actβ), and the rulesΒ promulgated thereunder, or as defined under the Investment Company Act of 1940, as amended (the β1940 Actβ), and the rulesΒ promulgated thereunder.
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This letter relates to the transfer of U.S.$[Β·] aggregate principal amount of [ClassΒ A][ClassΒ B] Notes being transferred for an equivalent beneficial interest in a RegulationΒ S Global Security of the same ClassΒ in the name of [name of transferee] (the βTransfereeβ).
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In connection with such request, the Transferee hereby certifies that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the Offering Memorandum, dated as of JanuaryΒ 25, 2013, and hereby represents, warrants and agrees for the benefit of the Issuer, the Co-Issuer, the Trustee, the Loan Obligation Manager and their counsel that:
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(i)at the time the buy order was originated, the Transferee was outside the United States;
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(ii)the Transferee is not a U.S. Person (βU.S. Personβ), as defined in RegulationΒ S;
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(iii)the transfer is being made in an βoffshore transactionβ (βOffshore Transactionβ), as defined in RegulationΒ S, pursuant to RuleΒ 903 or 904 of RegulationΒ S;
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(iv)the Transferee will notify future transferees of the transfer restrictions;
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(v)the Transferee understands that the Notes, including the Transferred Notes, are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, the Notes, including the Transferred Notes, have not been and will not be registered or qualified under the Securities Act or the securities laws of any state or other jurisdiction, and, if in the future the owner decides to reoffer, resell, pledge or otherwise transfer the Transferred Notes, such Transferred Notes may only be reoffered, resold, pledged or otherwise transferred only in accordance with the Indenture and the legend on such Transferred Notes.Β The Transferee acknowledges that no representation is made by the Issuer, the Co-Issuer or the Placement Agent, as the case may be, as to the availability of any exemption from registration or qualification under the Securities Act or any state or other securities laws for resale of the Transferred Notes;
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(vi)the Transferee is not purchasing the Transferred Notes with a view to the resale, distribution or other disposition thereof in violation of the Securities Act or the securities laws of any state or other jurisdiction.Β The Transferee understands that an investment in the Transferred Notes involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances.Β The Transferee has had access to such financial and other information concerning the Issuer, the Co-Issuer and the Transferred Notes as it deemed necessary or appropriate in order to make an informed investment decision with respect to its purchase of the Transferred Notes, including, without limitation, an opportunity to ask questions of and request information from the Loan Obligation Manager, the Placement Agent, the Issuer and the Co-Issuer, including without limitation, an opportunity to access to such legal and tax representation as the Transferee deemed necessary or appropriate;
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(vii)in connection with the purchase of the Transferred Notes:Β (A)Β none of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates is acting as a fiduciary or financial or investment adviser for the Transferee; (B)Β the Transferee is not relying (for purposes of making any investment decision or otherwise) upon any written or oral advice, counsel or representations of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of its respective affiliates other than any statements in the final offering memorandum relating to such Transferred Notes and any representations expressly set forth in a written agreement with such party; (C)Β the Transferee has read and understands the final offering memorandum relating to the Transferred Notes (including, without limitation, the descriptions therein of the structure of the transaction in which the Transferred Notes are being issued and the risks to purchasers of the Notes); (D)Β none of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of its respective affiliates has given to the Transferee (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (including legal, regulatory, tax, financial, accounting, or otherwise) of the Transfereeβs purchase of the Transferred Notes; (E)Β the Transferee has consulted with its own legal, regulatory, tax, business, investment, financial, accounting and other advisers to the extent it has deemed necessary, and it has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisers as it has deemed necessary and not upon any view expressed by the Issuer, the Co-Issuer, the Placement Agent, the Trustee, the Collateral Administrator or any of its respective affiliates; (F)Β the Transferee will hold and transfer at least the minimum denomination of such Transferred Notes; (G)Β the Transferee was not formed for the purpose of investing in the Transferred Notes; and (H)Β the Transferee is purchasing the Transferred Notes with a full understanding of all of the terms, conditions and risks thereof (economic and otherwise), and is capable of assuming and willing to assume (financially and otherwise) these risks;
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(viii)the Transferee understands that the Transferred Notes will bear the applicable legend set forth on such Transferred Notes;
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(ix)the Transferee represents that either (a)Β it is not an βemployee benefit planβ (as defined in SectionΒ 3(3)Β of ERISA) or βplanβ (as defined in SectionΒ 4975(e)(1)Β of the Code) that is subject to Title I of ERISA or SectionΒ 4975 of the Code, or any other employee benefit plan or plan which is subject to any federal, state or local law (βSimilar Lawβ) that is substantially similar to SectionΒ 406 of ERISA or SectionΒ 4975 of the Code (each a βBenefit Planβ) or an entity whose underlying assets include plan assets of any such Benefit Plan or (b)Β its purchase and holding of the Transferred Notes will not constitute or result in a non-exempt prohibited transaction under SectionΒ 406 of ERISA or SectionΒ 4975 of the Code, or, in the case of a Benefit Plan subject to Similar Law, do not result in a non-exempt violation of Similar Law;
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(x)Except to the extent permitted by the Securities Act and the 1940 Act and any rulesΒ thereunder as in effect and applicable at the time of any such offer, the Transferee will not, at any time, offer to buy or offer to sell the Transferred Notes by any form of general solicitation or advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio or at a seminar or meeting whose attendees have been invited by general solicitations or advertising;
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(xi)the Transferee is not a member of the public in the Cayman Islands, within the meaning of SectionΒ 175 of the Cayman Islands Companies Law (2011 Revision);
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(xii)the Transferee understands that (A)Β the Issuer, the Co-Issuer, the Trustee or the Paying Agent will require certification acceptable to them (1)Β as a condition to the payment of principal of and interest on any Notes without, or at a reduced rate of, U.S. withholding or backup withholding tax, and (2)Β to enable the Issuer, the Co-Issuer, the Trustee and the Paying Agent to determine their duties and liabilities with respect to any taxes or other charges that they may be required to pay, deduct or withhold from payments in respect of such Notes or the holder of such Notes under any present or future law or regulation of the Cayman Islands or the United States or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any such law or regulation, which certification may include U.S. federal income tax forms (such as IRS FormΒ W-8BEN (Certification of Foreign Status of Beneficial Owner),Β IRS FormΒ W-8IMY (Certification of Foreign Intermediary Status),Β IRS FormΒ W-9 (Request for Taxpayer Identification Number and Certification), or IRS FormΒ W-8ECI (Certification of Foreign Personβs Claim for Exemption from Withholding on Income Effectively Connected with Conduct of a U.S. Trade or Business) or any successors to such IRS forms); (B)Β the Issuer, the Co-Issuer, the Trustee or the Paying Agent may require certification acceptable to them to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets; (C)Β if the Issuer is no longer a Qualified REIT Subsidiary but is instead considered to be a foreign corporation for U.S. federal income tax purposes, the Issuer, the Co-Issuer, the Trustee or the Paying Agent will require the Transferee to provide the Issuer, the Co-Issuer, the Trustee or the Paying Agent with any correct, complete and accurate information that may be required for the Issuer, the Co-Issuer, the Trustee or the Paying Agent to comply with FATCA requirements and will take any other actions necessary for the Issuer, the Co-Issuer, the Trustee or the Paying Agent to comply with FATCA requirements and, in the event the Transferee fails to provide such information or take such actions, (1)Β the Issuer, the Co-Issuer, the Trustee and the Paying Agent are authorized to withhold amounts otherwise distributable to the Transferee as compensation for any amount withheld from payments to the Issuer, the Co-Issuer, the Trustee or the Paying Agent as a result of such failure, (2)Β to the extent necessary to avoid an adverse effect on the Issuer or any other holder of Notes as a result of such failure, the Issuer, the Co-Issuer, the Trustee and the Paying Agent will have the right to compel the Transferee to sell its Notes or, if the Transferee does not sell its Notes within 10 business days after notice from the Issuer, the Co-Issuer, the Trustee or the Paying Agent, to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account any taxes incurred by the Issuer in connection with such sale) to the Transferee as payment in full for such Notes and (3)Β the Issuer may also assign each such Note a separate CUSIP or CUSIPs in the Issuerβs sole discretion; (D)Β if the Transferee is a βforeign financial institutionβ or other foreign financial entity subject to FATCA and does not provide the Issuer, Co-Issuer, Trustee or Paying Agent with evidence that it has complied with the applicable FATCA requirements, the Issuer, Co-Issuer, Trustee or Paying Agent will be required to withhold amounts under FATCA on payments to the Transferee; and (E)Β the Transferee agrees to provide any certification requested pursuant to this paragraph and to update or replace such form or certification in accordance with its terms or its subsequent amendments;
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(xiii)the Transferee acknowledges that it is its intent and that it understands it is the intent of the Issuer that, for purposes of U.S. federal, state and local income and franchise tax and any other income taxes, for so long as a direct or indirect wholly owned subsidiary of the Arbor Parent owns 100% of the Preferred Shares and the Issuer Ordinary Shares, the Issuer will be treated as a Qualified REIT Subsidiary and the Notes will be treated as indebtedness solely of the Arbor Parent; the Transferee agrees to such treatment and agrees to take no action inconsistent with such treatment;
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(xiv)the Transferee, if not a βUnited States personβ (as defined in SectionΒ 7701(a)(30) of the Code), either:Β (A)Β is not a bank (within the meaning of SectionΒ 881(c)(3)(A)Β of the Code); (B)Β is a bank that has provided an IRS FormΒ W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with the conduct of a trade or business in the United States, or (C)Β is a bank and is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States and the Issuer is treated as a fiscally transparent entity (as defined in Treasury regulations
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sectionΒ 1.894-1(d)(3)(iii)) under the laws of Transfereeβs jurisdiction with respect to payments made on the Loan Obligations held by the Issuer;
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(xv)the Transferee understands that the Notes have not been approved or disapproved by the SEC or any other governmental authority or agency or any jurisdiction and that neither the SEC nor any other governmental authority or agency has passed upon the adequacy or accuracy of the final offering memorandum relating to the Notes.Β The Transferee further understands that any representation to the contrary is a criminal offense;
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(xvi)the Transferee will, prior to any sale, pledge or other transfer by such Transferee of any Note (or interest therein), obtain from the prospective transferee, and deliver to the Trustee, a duly executed transferee certificate addressed to each of the Trustee, the Issuer, the Co-Issuer and the Loan Obligation Manager in the form of the relevant exhibit attached to the Indenture, and such other certificates and other information as the Issuer, the Co-Issuer, the Loan Obligation Manager or the Trustee may reasonably require to confirm that the proposed transfer complies with the transfer restrictions contained in the Indenture;
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(xvii)the Transferee agrees that no Note may be purchased, sold, pledged or otherwise transferred in an amount less than the minimum denomination set forth in the Indenture.Β In addition, the Transferee understands that the Notes will be transferable only upon registration of the transferee in the Note Register of the Issuer following delivery to the Note Registrar of a duly executed transfer certificate and any other certificates and other information required by the Indenture;
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(xviii)the Transferee is aware and agrees that no Note (or beneficial interest therein) may be reoffered or resold, pledged or otherwise transferred (i)Β to a transferee taking delivery of such Note represented by a RuleΒ 144A Global Security except (A)Β to a transferee that the Transferee reasonably believes is a QIB, purchasing for its account or the account of another QIB, to which notice is given that the resale, pledge or other transfer is being made in reliance on the exemption from the registration requirements of the Securities Act provided by RuleΒ 144A or another person the sale to which is exempt under the Securities Act, (B)Β to a transferee that is a Qualified Purchaser, and (C)Β if such transfer is made in accordance with any applicable securities laws of any state of the United States and any other relevant jurisdiction, (ii)Β to a transferee taking delivery of such Note represented by a RegulationΒ S Global Security except (A)Β to a transferee that is a non-U.S. Person acquiring such interest in an Offshore Transaction in accordance with RuleΒ 903 or RuleΒ 904 of RegulationΒ S, (B)Β to a transferee that is not a U.S. resident (within the meaning of the 1940 Act) unless such transferee is a Qualified Purchaser, (C)Β such transfer is made in compliance with the other requirements set forth in the Indenture and (D)Β if such transfer is made in accordance with any applicable securities laws of any state of the United States and any other jurisdiction or (iii)Β if such transfer would have the effect of requiring the Issuer, the Co-Issuer or the pool of Assets to register as an βinvestment companyβ under the 1940 Act;
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(xix)the Transferee understands that there is no secondary market for the Notes and that no assurances can be given as to the liquidity of any trading market for the Notes and that it is unlikely that a trading market for the Notes will develop.Β The Transferee further understands that, although the Placement Agent may from time to time make a market in the Notes, the Placement Agent is not under any obligation to do so and, following the commencement of any market-making, may discontinue the same at any time.Β Accordingly, the Transferee must be prepared to hold the Notes until the Stated Maturity Date;
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(xx)the Transferee agrees that (i)Β any sale, pledge or other transfer of a Note (or any beneficial interest therein) made in violation of the transfer restrictions contained in the Indenture, or made based upon any false or inaccurate representation made by the Transferee or a transferee to the Issuer, the Trustee or the Note Registrar, will be void and of no force or effect and (ii)Β none of the Issuer, the Trustee and the Note Registrar has any obligation to recognize any sale, pledge or other transfer of a Note (or any beneficial interest therein) made in violation of any such transfer restriction or made based upon any such false or inaccurate representation;
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(xxi)the Transferee approves and consents to any direct trades between the Issuer and the Loan Obligation Manager and/or its affiliates that is permitted under the terms of the Indenture and the Loan Obligation Management Agreement; and
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(xxii)the Transferee acknowledges that the Issuer, the Co-Issuer, the Trustee, the Note Registrar, the Loan Obligation Manager, the Placement Agent and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements and agrees that, if any of the acknowledgments, representations or warranties made or deemed to have been made by it in connection with its purchase of the Notes are no longer accurate, the Transferee will promptly notify the Issuer, the Co-Issuer, the Trustee, Note Registrar, the Loan Obligation Manager and the Placement Agent.
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(xxiii)The Notes will bear a legend to the following effect unless the Issuer and the Co-Issuer determine otherwise in compliance with applicable law:
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THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND NEITHER THE ISSUER NOR THE CO-ISSUER HAS BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE β1940 ACTβ).Β THIS NOTE MAYΒ NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT:Β (A)(1)Β TO A (X)Β βQUALIFIED INSTITUTIONAL BUYERβ (A βQIBβ), AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) WHO IS A QUALIFIED PURCHASER AS DEFINED IN SECTIONΒ 2(A)(51) OF THE 1940 ACT AND THE RULES THEREUNDER (A βQUALIFIED PURCHASERβ) AND IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB WHO IS A QUALIFIED PURCHASER,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$500,000 (AND INTEGRAL MULTIPLES OF U.S.$500 IN EXCESS THEREOF) FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT,Β IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE; OR (Y)Β AN INSTITUTIONAL βACCREDITED INVESTORβ WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)Β OR (7)Β OF REGULATION D UNDER THE SECURITIES ACT TAKING SUCH INTEREST IN THE FORMΒ OF A DEFINITIVE NOTE REGISTERED IN THE NAME OF THE LEGAL AND BENEFICIAL HOLDER THEREOF,Β IN EACH CASE IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR (2)Β TO A NON-βU.S. PERSONβ IN AN βOFFSHORE TRANSACTION,β AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT (βREGULATION Sβ),Β IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S IN EACH CASE,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$500,000 (AND INTEGRAL MULTIPLES OF U.S.$500 IN EXCESS THEREOF), SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, AND (B)Β IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.Β EACH PURCHASER OF A GLOBAL SECURITY WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTIONΒ 2.5 OF THE INDENTURE.Β ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE CO-ISSUER, AS APPLICABLE, THE TRUSTEE OR ANY INTERMEDIARY.Β IF AT ANY TIME THE ISSUER AND THE CO-ISSUER, AS APPLICABLE, DETERMINE OR ARE NOTIFIED THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH GLOBAL SECURITY WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE TRUSTEE MAYΒ CONSIDER THE ACQUISITION OF SUCH INTEREST IN SUCH GLOBAL SECURITY VOID AND REQUIRE THAT SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER AND THE CO-ISSUER, AS APPLICABLE.
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ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDEΒ & CO. HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (βDTCβ), NEW YORK, NEW YORK, TO THE CO-ISSUERS OR
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THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDEΒ & CO. OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDEΒ & CO.).
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THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.Β THIS NOTE MAYΒ NOT BE EXCHANGED OR TRANSFERRED IN WHOLE OR IN PARTΒ FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THAT DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
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PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.Β ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAYΒ BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.Β ANY PERSON ACQUIRING THIS NOTE MAYΒ ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
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(xxiv)The owner understands and agrees that an additional legend in substantially the following form will be placed on each Note in the form of a Regulation S Global Security:
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AN INTEREST IN THIS NOTE MAYΒ NOT BE HELD BY A PERSON THAT IS A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AT ANY TIME.Β IN ADDITION, AN INTEREST IN THIS NOTE MAYΒ BE HELD ONLY THROUGH EUROCLEAR OR CLEARSTREAM, LUXEMBOURG AT ANY TIME.
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You, the Issuer, the Co-Issuer and the Loan Obligation Manager are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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cc:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
Arbor Realty Collateralized Loan Obligation 2013-1, LLC
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EXHIBITΒ C-2
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FORMΒ OF TRANSFER CERTIFICATE
FOR (1)Β TRANSFER AT THE CLOSING TO A RULEΒ 144A GLOBAL SECURITY OR
(2)Β SUBSEQUENT TRANSFER FROM A REGULATION S GLOBAL SECURITY TO A RULE 144A
GLOBAL SECURITY
(Transfers pursuant to ArticleΒ 2 of the Indenture)
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U.S. Bank National Association
60 Lxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Xxxn:Β Corporate Trust Services β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
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Re:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., as Issuer and Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer of:Β the ClassΒ A Senior Secured Floating Rate Notes, Due 2023 and the ClassΒ B Secured Floating Rate Notes, Due 2023 (the βTransferred Notesβ)
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Reference is hereby made to the Indenture dated as of JanuaryΒ 28, 2013 (the βIndentureβ), by and among Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., as Issuer and Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer of the ClassΒ A Notes and the ClassΒ B Notes, U.S. Bank National Association, as Trustee, and Arbor Realty SR,Β Inc., as Advancing Agent.Β Capitalized terms used but not defined herein will have the meanings assigned to such terms in the Indenture and if not defined in the Indenture then such terms will have the meanings assigned to them in RegulationΒ S (βRegulationΒ Sβ), or RuleΒ 144A (βRuleΒ 144Aβ), under the Securities Act of 1933, as amended (the βSecurities Actβ), and the rulesΒ promulgated thereunder or as defined under the Investment Company Act of 1940, as amended (the β1940 Actβ) and the rulesΒ promulgated thereunder.
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This letter relates to the transfer of U.S.$[β’] aggregate principal amount of [ClassΒ A][ClassΒ B] Notes being transferred in exchange for an equivalent beneficial interest in a RuleΒ 144A Global Security of the same ClassΒ in the name of [name of transferee] (the βTransfereeβ).
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In connection with such request, the Transferee hereby certifies that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the Offering Memorandum dated as of JanuaryΒ 25, 2013 and hereby represents, warrants and agrees for the benefit of the Issuer, the Co-Issuer and the Trustee that:
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(i)the Transferee is a βqualified institutional buyerβ as defined in RuleΒ 144A (a βQIBβ), and a Qualified Purchaser as defined in the 1940 Act and the rulesΒ promulgated thereunder (a βQualified Purchaserβ);
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(ii)(A)Β the Transferee is acquiring a beneficial interest in such Transferred Notes for its own account or for an account that is both a QIB and a Qualified Purchaser and as to each of which the Transferee exercises sole investment discretion, and (B)Β the Transferee and each such account is acquiring not less than the minimum denomination of the Transferred Notes;
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(iii)the Transferee will notify future transferees of the transfer restrictions;
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(iv)the Transferee is obtaining the Transferred Notes in a transaction pursuant to RuleΒ 144A;
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(v)the Transferee is obtaining the Transferred Notes in accordance with any applicable securities laws of any state of the United States and any other applicable jurisdiction;
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(vi)the Transferee understands that the Notes, including the Transferred Notes, are being offered only in a transaction not involving any public offering in the United States within the meaning of the Securities Act, the Notes, including the Transferred Notes, have not been and will not be registered or qualified under the Securities Act or the securities laws of any state or other jurisdiction, and, if in the
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future the owner decides to reoffer, xxxxxx, pledge or otherwise transfer the Transferred Notes, such Transferred Notes may only be reoffered, resold, pledged or otherwise transferred only in accordance with the Indenture and the legend on such Transferred Notes.Β The Transferee acknowledges that no representation is made by the Issuer, the Co-Issuer or the Placement Agent, as the case may be, as to the availability of any exemption from registration or qualification under the Securities Act or any state or other securities laws for resale of the Transferred Notes;
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(vii)the Transferee is not purchasing the Transferred Notes with a view to the resale, distribution or other disposition thereof in violation of the Securities Act or the securities laws of any state or other jurisdiction.Β The Transferee understands that an investment in the Transferred Notes involves certain risks, including the risk of loss of all or a substantial part of its investment under certain circumstances.Β The Transferee has had access to such financial and other information concerning the Issuer, the Co-Issuer and the Transferred Notes as it deemed necessary or appropriate in order to make an informed investment decision with respect to its purchase of the Transferred Notes, including, without limitation, an opportunity to ask questions of and request information from the Loan Obligation Manager, the Placement Agent, the Issuer and the Co-Issuer, including without limitation, an opportunity to access to such legal and tax representation as the Transferee deemed necessary or appropriate;
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(viii)in connection with the purchase of the Transferred Notes:Β (A)Β none of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates is acting as a fiduciary or financial or investment adviser for the Transferee; (B)Β the Transferee is not relying (for purposes of making any investment decision or otherwise) upon any written or oral advice, counsel or representations of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates other than any statements in the final offering memorandum relating to such Transferred Notes and any representations expressly set forth in a written agreement with such party; (C)Β the Transferee has read and understands the final offering memorandum relating to the Transferred Notes (including, without limitation, the descriptions therein of the structure of the transaction in which the Transferred Notes are being issued and the risks to purchasers of the Notes); (D)Β none of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates has given to the Transferee (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (including legal, regulatory, tax, financial, accounting, or otherwise) of the Transfereeβs purchase of the Transferred Notes; (E)Β the Transferee has consulted with its own legal, regulatory, tax, business, investment, financial, accounting and other advisers to the extent it has deemed necessary, and it has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisers as it has deemed necessary and not upon any view expressed by the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates; (F)Β the Transferee will hold and transfer at least the minimum denomination of such Transferred Notes; (G)Β the Transferee was not formed for the purpose of investing in the Transferred Notes; and (H)Β the Transferee is purchasing the Transferred Notes with a full understanding of all of the terms, conditions and risks thereof (economic and otherwise), and is capable of assuming and willing to assume (financially and otherwise) these risks;
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(ix)the Transferee understands that the Transferred Notes will bear the applicable legend set forth on such Transferred Notes;
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(x)the Transferee represents that either (a)Β it is not and is not investing on behalf of an βemployee benefit planβ (as defined in SectionΒ 3(3)Β of ERISA) or βplanβ (as defined in SectionΒ 4975(e)(1)Β of the Code) that is subject to Title I of ERISA or SectionΒ 4975 of the Code, or any other employee benefit plan or plan which is subject to any federal, state or local law (βSimilar Lawβ) that is substantially similar to SectionΒ 406 of ERISA or SectionΒ 4975 of the Code (each a βBenefit Planβ) or an entity whose underlying assets include plan assets of any such Benefit Plan or (b)Β its purchase and holding of the Transferred Notes will not constitute or result in a non-exempt prohibited transaction under SectionΒ 406 of ERISA or
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SectionΒ 4975 of the Code, or, in the case of a Benefit Plan subject to Similar Law, do not result in a non-exempt violation of Similar Law;
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(xi)Except to the extent permitted by the Securities Act and the 1940 Act and any rulesΒ thereunder as in effect and applicable at the time of any such offer, the Transferee will not, at any time, offer to buy or offer to sell the Transferred Notes by any form of general solicitation or advertising, including, but not limited to, any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio or at a seminar or meeting whose attendees have been invited by general solicitations or advertising;
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(xii)the Transferee is not a member of the public in the Cayman Islands, within the meaning of SectionΒ 175 of the Cayman Islands Companies Law (2011 Revision);
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the Transferee understands that (A)Β the Issuer, the Co Issuer, the Trustee or the Paying Agent will require certification acceptable to them (1)Β as a condition to the payment of principal of and interest on any Notes without, or at a reduced rate of, U.S. withholding or backup withholding tax, and (2)Β to enable the Issuer, the Co-Issuer, the Trustee and the Paying Agent to determine their duties and liabilities with respect to any taxes or other charges that they may be required to pay, deduct or withhold from payments in respect of such Notes or the holder of such Notes under any present or future law or regulation of the Cayman Islands or the United States or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any such law or regulation, which certification may include U.S. federal income tax forms (such as IRS FormΒ W-8BEN (Certification of Foreign Status of Beneficial Owner),Β IRS FormΒ W-8IMY (Certification of Foreign Intermediary Status),Β IRS FormΒ W-9 (Request for Taxpayer Identification Number and Certification), or IRS FormΒ W-8ECI (Certification of Foreign Personβs Claim for Exemption from Withholding on Income Effectively Connected with Conduct of a U.S. Trade or Business) or any successors to such IRS forms); (B)Β the Issuer, the Co Issuer, the Trustee or the Paying Agent may require certification acceptable to them to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets; (C)Β if the Issuer is no longer a Qualified REIT Subsidiary but is instead considered to be a foreign corporation for U.S. federal income tax purposes, the Issuer, the Co-Issuer, the Trustee or the Paying Agent will require the Transferee to provide the Issuer, the Co-Issuer, the Trustee or the Paying Agent with any correct, complete and accurate information that may be required for the Issuer, the Co-Issuer, the Trustee or the Paying Agent to comply with FATCA requirements and will take any other actions necessary for the Issuer, the Co-Issuer, the Trustee or the Paying Agent to comply with FATCA requirements and, in the event the Transferee fails to provide such information or take such actions, (1)Β the Issuer, the Co-Issuer, the Trustee and the Paying Agent are authorized to withhold amounts otherwise distributable to the Transferee as compensation for any amount withheld from payments to the Issuer, the Co-Issuer, the Trustee or the Paying Agent as a result of such failure, (2)Β to the extent necessary to avoid an adverse effect on the Issuer or any other holder of Notes as a result of such failure, the Issuer, the Co-Issuer, the Trustee and the Paying Agent will have the right to compel the Transferee to sell its Notes or, if the Transferee does not sell its Notes within 10 business days after notice from the Issuer, the Co-Issuer, the Trustee or the Paying Agent, to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account any taxes incurred by the Issuer in connection with such sale) to the Transferee as payment in full for such Notes and (3)Β the Issuer may also assign each such Note a separate CUSIP or CUSIPs in the Issuerβs sole discretion; (D)Β if the Transferee is a βforeign financial institutionβ or other foreign financial entity subject to FATCA and does not provide the Issuer, Co-Issuer, Trustee or Paying Agent with evidence that it has complied with the applicable FATCA requirements, the Issuer, Co-Issuer, Trustee or Paying Agent will be required to withhold amounts under FATCA on payments to the Transferee; and (E)Β the Transferee agrees to provide any certification requested pursuant to this paragraph and to update or replace such form or certification in accordance with its terms or its subsequent amendments;
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(xiv)the Transferee acknowledges that it is its intent and that it understands it is the intent of the Issuer that, for purposes of U.S. federal, state and local income and franchise tax and any other income taxes, for so long as a direct or indirect wholly owned disregarded subsidiary of the Arbor Parent owns 100% of the Preferred Shares and the Issuer Ordinary Shares, the Issuer will be treated as a Qualified REIT
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Subsidiary and the Notes will be treated as indebtedness solely of the Arbor Parent; the Transferee agrees to such treatment and agrees to take no action inconsistent with such treatment;
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(xv)the Transferee, if not a βUnited States personβ (as defined in SectionΒ 7701(a)(30) of the Code), either:Β (A)Β is not a bank (within the meaning of SectionΒ 881(c)(3)(A)Β of the Code); (B)Β is a bank that has provided an IRS FormΒ W-8ECI representing that all payments received or to be received by it from the Issuer are effectively connected with the conduct of a trade or business in the United States, or (C)Β is a bank and is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States and the Issuer is treated as a fiscally transparent entity (as defined in Treasury regulations
Β sectionΒ 1.894-1(d)(3)(iii)) under the laws of Transfereeβs jurisdiction with respect to payments made on the Loan Obligations held by the Issuer;
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(xvi)the Transferee understands that the Notes have not been approved or disapproved by the SEC or any other governmental authority or agency or any jurisdiction and that neither the SEC nor any other governmental authority or agency has passed upon the adequacy or accuracy of the final offering memorandum relating to the Notes.Β The Transferee further understands that any representation to the contrary is a criminal offense;
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(xvii)the Transferee will, prior to any sale, pledge or other transfer by such Transferee of any Note (or interest therein), obtain from the prospective transferee, and deliver to the Trustee, a duly executed transferee certificate addressed to each of the Trustee, the Issuer, the Co-Issuer and the Loan Obligation Manager in the form of the relevant exhibit attached to the Indenture, and such other certificates and other information as the Issuer, the Co-Issuer, the Loan Obligation Manager or the Trustee may reasonably require to confirm that the proposed transfer complies with the transfer restrictions contained in the Indenture;
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(xviii)the Transferee agrees that no Note may be purchased, sold, pledged or otherwise transferred in an amount less than the minimum denomination set forth in the Indenture.Β In addition, the Transferee understands that the Notes will be transferable only upon registration of the transferee in the Note Register of the Issuer following delivery to the Note Registrar of a duly executed transfer certificate and any other certificates and other information required by the Indenture;
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(xix)the Transferee is aware and agrees that no Note (or beneficial interest therein) may be reoffered or resold, pledged or otherwise transferred (i)Β to a transferee taking delivery of such Note represented by a RuleΒ 144A Global Security except (A)Β to a transferee that the Transferee reasonably believes is a QIB, purchasing for its account or the account of another QIB, to which notice is given that the resale, pledge or other transfer is being made in reliance on the exemption from the registration requirements of the Securities Act provided by RuleΒ 144A or another person the sale to which is exempt under the Securities Act, (B)Β to a transferee that is a Qualified Purchaser, and (C)Β if such transfer is made in accordance with any applicable securities laws of any state of the United States and any other relevant jurisdiction, (ii)Β to a transferee taking delivery of such Note represented by a RegulationΒ S Global Security except (A)Β to a transferee that is a non-U.S. Person acquiring such interest in an Offshore Transaction in accordance with RuleΒ 903 or RuleΒ 904 of RegulationΒ S, (B)Β to a transferee that is not a U.S. resident (within the meaning of the 1940 Act) unless such transferee is a Qualified Purchaser, (C)Β such transfer is made in compliance with the other requirements set forth in the Indenture and (D)Β if such transfer is made in accordance with any applicable securities laws of any state of the United States and any other jurisdiction or (iii)Β if such transfer would have the effect of requiring the Issuer, the Co-Issuer or the pool of Assets to register as an βinvestment companyβ under the 1940 Act;
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(xx)the Transferee understands that there is no secondary market for the Notes and that no assurances can be given as to the liquidity of any trading market for the Notes and that it is unlikely that a trading market for the Notes will develop.Β The Transferee further understands that, although the Placement Agent may from time to time make a market in the Notes, the Placement Agent is not under any obligation to do so and, following the commencement of any market-making, may discontinue the same at any time.Β Accordingly, the Transferee must be prepared to hold the Notes until the Stated Maturity Date;
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(xxi)the Transferee agrees that (i)Β any sale, pledge or other transfer of a Note (or any beneficial interest therein) made in violation of the transfer restrictions contained in the Indenture, or made based upon any false or inaccurate representation made by the Transferee or a transferee to the Issuer, the Trustee or the Note Registrar, will be void and of no force or effect and (ii)Β none of the Issuer, the Trustee and the Note Registrar has any obligation to recognize any sale, pledge or other transfer of a Note (or any beneficial interest therein) made in violation of any such transfer restriction or made based upon any such false or inaccurate representation;
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(xxii)the Transferee approves and consents to any direct trades between the Issuer and the Loan Obligation Manager and/or its affiliates that is permitted under the terms of the Indenture and the Loan Obligation Management Agreement;
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(xxiii)the Transferee acknowledges that the Issuer, the Co-Issuer, the Trustee, the Note Registrar, the Loan Obligation Manager, the Placement Agent and others will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements and agrees that, if any of the acknowledgments, representations or warranties made or deemed to have been made by it in connection with its purchase of the Notes are no longer accurate, the Transferee will promptly notify the Issuer, the Co-Issuer, the Trustee, Note Registrar, the Loan Obligation Manager and the Placement Agent; and
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The Notes will bear a legend to the following effect unless the Issuer and the Co-Issuer determine otherwise in compliance with applicable law:
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THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND NEITHER THE ISSUER NOR THE CO-ISSUER HAS BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE β1940 ACTβ).Β THIS NOTE MAYΒ NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT:Β (A)(1)Β TO A (X)Β βQUALIFIED INSTITUTIONAL BUYERβ (A βQIBβ), AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) WHO IS A QUALIFIED PURCHASER AS DEFINED IN SECTIONΒ 2(A)(51) OF THE 1940 ACT AND THE RULES THEREUNDER (A βQUALIFIED PURCHASERβ) AND IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB WHO IS A QUALIFIED PURCHASER, FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT,Β IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE; OR (Y)Β AN INSTITUTIONAL βACCREDITED INVESTORβ WITHIN THE MEANING OF RULE 501(a)(1), (2), (3)Β OR (7)Β OF REGULATION D UNDER THE SECURITIES ACT TAKING SUCH INTEREST IN THE FORMΒ OF A DEFINITIVE NOTE REGISTERED IN THE NAME OF THE LEGAL AND BENEFICIAL HOLDER THEREOF,Β IN EACH CASE IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OR (2)Β TO A NON-βU.S. PERSONβ IN AN βOFFSHORE TRANSACTION,β AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT (βREGULATION Sβ),Β IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S IN EACH CASE,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$500,000 (AND INTEGRAL MULTIPLES OF U.S.$500 IN EXCESS THEREOF), SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, AND (B)Β IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.Β EACH PURCHASER OF A GLOBAL SECURITY WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTIONΒ 2.5 OF THE INDENTURE.Β ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE CO-ISSUER, AS APPLICABLE, THE TRUSTEE OR ANY INTERMEDIARY.Β IF AT ANY TIME THE ISSUER AND THE CO-ISSUER, AS APPLICABLE, DETERMINE OR ARE NOTIFIED THAT THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH GLOBAL SECURITY WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE TRUSTEE MAYΒ CONSIDER THE ACQUISITION OF SUCH INTEREST IN SUCH GLOBAL SECURITY VOID AND
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REQUIRE THAT SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER AND THE CO-ISSUER, AS APPLICABLE.
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ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDEΒ & CO. HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (βDTCβ), NEW YORK, NEW YORK, TO THE CO-ISSUERS OR THEIR AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDEΒ & CO. OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDEΒ & CO.).
Β
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY.Β THIS NOTE MAYΒ NOT BE EXCHANGED OR TRANSFERRED IN WHOLE OR IN PARTΒ FOR A NOTE REGISTERED IN THE NAME OF ANY PERSON OTHER THAN THAT DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Β
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN.Β ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAYΒ BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.Β ANY PERSON ACQUIRING THIS NOTE MAYΒ ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY OF THE TRUSTEE.
Β
You, the Issuer, the Co-Issuer and the Loan Obligation Manager are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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[Name of Transferee] | |
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By: |
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cc:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
Arbor Realty Collateralized Loan Obligation 2013-1, LLC
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EXHIBITΒ C-3
Β
FORMΒ OF TRANSFER CERTIFICATE
FOR (1)Β TRANSFER AT THE CLOSING TO A DEFINITIVE NOTE OR
(2)Β SUBSEQUENT TRANSFER FROM A REGULATION S GLOBAL SECURITY OR A RULE 144A
GLOBAL SECURITY TO A DEFINITIVE NOTE
(Transfers pursuant to ArticleΒ 2 of the Indenture)
Β
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attn:Β Corporate Trust Services β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
Β
Re:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., as Issuer and Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer of:Β the ClassΒ A Senior Secured Floating Rate Notes, Due 2023 and the ClassΒ B Secured Floating Rate Notes, Due 2023 (the βTransferred Notesβ)
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Reference is hereby made to the Indenture dated as of JanuaryΒ 28, 2013 (the βIndentureβ), by and among Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd., as Issuer and Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer of the ClassΒ A Notes and the ClassΒ B Notes, U.S. Bank National Association, as Trustee, and Arbor Realty SR,Β Inc., as Advancing Agent.Β Capitalized terms used but not defined herein will have the meanings assigned to such terms in the Indenture and if not defined in the Indenture then such terms will have the meanings assigned to them in RegulationΒ S (βRegulationΒ Sβ), or RuleΒ 144A (βRuleΒ 144Aβ), under the Securities Act of 1933, as amended (the βSecurities Actβ), and the rulesΒ promulgated thereunder, or as defined under the Investment Company Act of 1940, as amended (the β1940 Actβ), and the rulesΒ promulgated thereunder.
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This letter relates to the transfer of U.S.$[Β·] aggregate principal amount of [ClassΒ A][ClassΒ B] Notes being transferred in exchange for a Definitive Note of the same ClassΒ in the name of [name of transferee] (the βTransfereeβ).
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In connection with such request, the Transferee hereby certifies that such transfer has been effected in accordance with the transfer restrictions set forth in the Indenture and the Offering Memorandum dated as of JanuaryΒ 25, 2013 and hereby represents, warrants and agrees for the benefit of the Issuer, the Co-Issuer and the Trustee that:
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(i)Β the Transferee is an institutional βaccredited investorβ as defined in RuleΒ 501(a)(1), (2), (3)Β or (7)Β of RegulationΒ D under the Securities Act (an βIAIβ) who is also a qualified purchaser as defined in SectionΒ 2(a)(51) of the 1940 Act and the rulesΒ promulgated thereunder (a βQualified Purchaserβ);
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(ii)Β the Transferee is acquiring the Notes for its own account (and not for the account of any other Person) in a minimum denomination of U.S.$500,000 and in integral multiples of U.S.$500 in excess thereof;
Β
(iii)Β the Transferee understands that the Notes have not been and will not be registered or qualified under the Securities Act or the securities laws of any state or other jurisdiction, and, if in the future the Transferee decides to reoffer, resell, pledge or otherwise transfer the Notes, such Notes may be reoffered, resold, pledged or otherwise transferred only in accordance with the provisions of the Indenture and the legends on such Notes, including the requirement for written certifications.Β In particular, the Transferee understands that the Notes may be transferred only to a person that is either (a)Β a Qualified Purchaser or a corporation, partnership, limited liability company or other entity (other than a trust), each shareholder, partner, member or other equity owner of which is a Qualified Purchaser, that in each case is either (i)Β a βqualified institutional buyerβ as defined in RuleΒ 144A (a βQIBβ) who purchases such Notes in reliance on the exemption from Securities Act registration provided by RuleΒ 144A, or (ii)Β solely in the case of Notes that are issued in the form of Definitive Securities, an IAI; or (b)Β a person that is not a βU.S. personβ as defined in Regulation S (a βU.S. Personβ), and is acquiring the Notes in an βoffshore transactionβ
Β
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as defined in Regulation S (an βOffshore Transactionβ), in reliance on the exemption from registration provided by Regulation S.Β The Transferee acknowledges that no representation is made as to the availability of any exemption from registration or qualification under the Securities Act or any state or other securities laws for resale of the Notes;
Β
(iv)Β in connection with the Transfereeβs purchase of the Notes:Β (a)Β none of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates is acting as a fiduciary or financial or investment adviser for the Transferee; (b)Β the Transferee is not relying (for purposes of making any investment decision or otherwise) upon any written or oral advice, counsel or representations of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates other than any statements in the final Offering Memorandum relating to such Notes and any representations expressly set forth in a written agreement with such party; (c)Β the Transferee has read and understands the final Offering Memorandum relating to such Notes (including, without limitation, the descriptions therein of the structure of the transaction in which the Notes are being issued and the risks to purchasers of the Notes); (d)Β none of the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates has given to the Transferee (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success, profitability, return, performance, result, effect, consequence, or benefit (including legal, regulatory, tax, financial, accounting, or otherwise) of the Transfereeβs purchase of the Notes; (e)Β the Transferee has consulted with its own legal, regulatory, tax, business, investment, financial, accounting and other advisers to the extent it has deemed necessary, and has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the Indenture) based upon its own judgment and upon any advice from such advisers as it has deemed necessary and not upon any view expressed by the Issuer, the Co-Issuer, the Placement Agent, the Loan Obligation Manager, the Trustee, the Collateral Administrator or any of their respective affiliates; (f)Β the Transferee will hold and transfer at least the minimum denomination of such Notes; (g)Β the Transferee was not formed for the purpose of investing in the Notes; and (h)Β the Transferee is a sophisticated investor and is purchasing the Notes with a full understanding of all of the terms, conditions and risks thereof, and it is capable of assuming and willing to assume those risks;
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(v)Β the Transferee is acquiring the Notes as principal solely for its own account for investment and not with a view to the resale, distribution or other disposition thereof in violation of the Securities Act or the securities laws of any state or other jurisdiction; it is not a (A)Β partnership, (B)Β common trust fund, or (C)Β special trust, pension, profit sharing or other retirement trust fund or plan in which the partners, beneficiaries or participants may designate the particular investments to be made; it agrees that it shall not hold any Notes for the benefit of any other person, that it shall at all times be the sole beneficial owner thereof for purposes of the 1940 Act and all other purposes and that it shall not sell participation interests in the Notes or enter into any other arrangement pursuant to which any other person shall be entitled to a beneficial interest in the distributions on the Notes;
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(vi)Β the Transferee represents that either (a)Β it is not and is not investing on behalf of an βemployee benefit planβ (as defined in SectionΒ 3(3)Β of ERISA) or βplanβ (as defined in SectionΒ 4975(e)(1)Β of the Code) that is subject to Title I of ERISA or SectionΒ 4975 of the Code, or any other employee benefit plan or plan which is subject to any federal, state or local law (βSimilar Lawβ) that is substantially similar to SectionΒ 406 of ERISA or SectionΒ 4975 of the Code (each a βBenefit Planβ) or an entity whose underlying assets include plan assets of any such Benefit Plan or (b)Β its purchase and holding of the Transferred Notes will not constitute or result in a non-exempt prohibited transaction under SectionΒ 406 of ERISA or SectionΒ 4975 of the Code, or, in the case of a Benefit Plan subject to Similar Law, do not result in a non-exempt violation of Similar Law;
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(vii)Β the Transferee will treat its Notes as debt of the Issuer for United States federal and, to the extent permitted by law, state and local income and franchise tax purposes unless otherwise required by any relevant taxing authority;
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(viii)Β the Transferee is a βUnited States personβ within the meaning of SectionΒ 7701(a)(30) of the Code, and has submitted a properly completed and signed IRS FormΒ W-9 containing its name, address and U.S. taxpayer identification number (or applicable successor form); or it is not a βUnited States personβ within the meaning of SectionΒ 7701(a)(30) of the Code, and has submitted a properly completed and signed applicable IRS FormΒ W-8 (or applicable successor form);
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(ix)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β the Transferee acknowledges that it is its intent and that it understands it is the intent of the Issuer that, for purposes of U.S. federal, state and local income and franchise tax and any other income taxes, for so long as a direct or indirect wholly owned subsidiary of the Arbor Parent owns 100% of the Preferred Shares and the Issuer Ordinary Shares, the Issuer will be treated as a Qualified REIT Subsidiary and the Notes will be treated as indebtedness solely of the Arbor Parent; the Transferee agrees to such treatment and agrees to take no action inconsistent with such treatment;
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(x)Β the Transferee is not a βUnited States personβ (as defined in SectionΒ 7701(a)(30) of the Code), it hereby represents that (i)Β either (A)Β it is not a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business (within the meaning of SectionΒ 881(c)(3)(A)Β of the Code), a 10% shareholder of the Issuer within the meaning of SectionΒ 871(h)(3)Β of the Code or a controlled foreign corporation within the meaning of SectionΒ 957(a)Β of the Code that is related to the Issuer within the meaning of SectionΒ 881(c)(3)Β of the Code, or (B)Β it is a person that is eligible for benefits under an income tax treaty with the United States that completely eliminates U.S. federal income taxation of U.S. source interest not attributable to a permanent establishment in the United States, and (ii)Β it is not purchasing the Notes in order to reduce its U.S. federal income tax liability pursuant to a tax avoidance plan;
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(xi)Β the Transferee understands that (A)Β the Issuer, the Co-Issuer, the Trustee or the Paying Agent will require certification acceptable to them (1)Β as a condition to the payment of principal of and interest on any Notes without, or at a reduced rate of, U.S. withholding or backup withholding tax, and (2)Β to enable the Issuer, the Co-Issuer, the Trustee and the Paying Agent to determine their duties and liabilities with respect to any taxes or other charges that they may be required to pay, deduct or withhold from payments in respect of such Notes or the holder of such Notes under any present or future law or regulation of the Cayman Islands or the United States or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any such law or regulation, which certification may include U.S. federal income tax forms (such as IRS FormΒ W-8BEN (Certification of Foreign Status of Beneficial Owner),Β IRS FormΒ W-8IMY (Certification of Foreign Intermediary Status),Β IRS FormΒ W-9 (Request for Taxpayer Identification Number and Certification), or IRS FormΒ W-8ECI (Certification of Foreign Personβs Claim for Exemption from Withholding on Income Effectively Connected with Conduct of a U.S. Trade or Business) or any successors to such IRS forms); (B)Β the Issuer, the Co-Issuer, the Trustee or the Paying Agent may require certification acceptable to them to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its assets; (C)Β if the Issuer is no longer a Qualified REIT Subsidiary but is instead considered to be a foreign corporation for U.S. federal income tax purposes, the Issuer, the Co-Issuer, the Trustee or the Paying Agent will require the Transferee to provide the Issuer, the Co-Issuer, the Trustee or the Paying Agent with any correct, complete and accurate information that may be required for the Issuer, the Co-Issuer, the Trustee or the Paying Agent to comply with FATCA requirements and will take any other actions necessary for the Issuer, the Co-Issuer, the Trustee or the Paying Agent to comply with FATCA requirements and, in the event the Transferee fails to provide such information or take such actions, (1)Β the Issuer, the Co-Issuer, the Trustee and the Paying Agent are authorized to withhold amounts otherwise distributable to the Transferee as compensation for any amount withheld from payments to the Issuer, the Co-Issuer, the Trustee or the Paying Agent as a result of such failure, (2)Β to the extent necessary to avoid an adverse effect on the Issuer or any other holder of Notes as a result of such failure, the Issuer, the Co-Issuer, the Trustee and the Paying Agent will have the right to compel the Transferee to sell its Notes or, if the Transferee does not sell its Notes within 10 business days after notice from the Issuer, the Co-Issuer, the Trustee or the Paying Agent, to sell such Notes at a public or private sale called and conducted in any manner permitted by law, and to remit the net proceeds of such sale (taking into account any taxes incurred by the Issuer in connection with such sale) to the Transferee as payment in full for such Notes and (3)Β the Issuer may also assign each such Note a separate CUSIP or CUSIPs in the Issuerβs sole discretion; (D)Β if the Transferee is a βforeign financial institutionβ or other foreign financial entity subject to FATCA and does not provide the Issuer, Co-Issuer, Trustee or Paying Agent with evidence that it has complied with the applicable FATCA requirements, the Issuer, Co-Issuer, Trustee or Paying Agent will be required to withhold amounts under FATCA on payments to the Transferee; and (E)Β the Transferee agrees to provide any certification requested pursuant to this paragraph and to update or replace such form or certification in accordance with its terms or its subsequent amendments;
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(xii)Β the Transferee agrees not to seek to commence in respect of the Issuer, or cause the Issuer to commence, a bankruptcy proceeding before a year and a day has elapsed since the payment in full to the holders of
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the Notes issued pursuant to the Indenture or, if longer, the applicable preference period (plus one day) then in effect;
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(xiii)Β the Transferee acknowledges that, to the extent required by the Issuer, as determined by the Issuer or the Loan Obligation Manager on behalf of the Issuer, the Issuer may, upon notice to the Trustee, impose additional transfer restrictions on the Notes to comply with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the βUSA PATRIOT Actβ) and other similar laws or regulations, including, without limitation, requiring each transferee of a Note to make representations to the Issuer in connection with such compliance;
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(xiv)Β the Transferee acknowledges that, each investor or prospective investor will be required to make such representations to the Issuer, as determined by the Issuer or the Loan Obligation Manager on behalf of the Issuer, as the Issuer will require in connection with applicable AML/OFAC obligations, including, without limitation, representations to the Issuer that such investor or prospective investor (or any person controlling or controlled by the investor or prospective investor; if the investor or prospective investor is a privately held entity, any person having a beneficial interest in the investor or prospective investor; or any person for whom the investor or prospective investor is acting as agent or nominee in connection with the investment) is not (i)Β an individual or entity named on any available lists of known or suspected terrorists, terrorist organizations or of other sanctioned persons issued by the United States government and the government(s)Β of any jurisdiction(s)Β in which the Partnership is doing business, including the List of Specially Designated Nationals and Blocked Persons administered by OFAC, as such list may be amended from time to time; (ii)Β an individual or entity otherwise prohibited by the OFAC sanctions programs; or (iii)Β a current or former senior foreign political figureΒ or politically exposed person , or an immediate family member or close associate of such an individual.Β Further, such investor or prospective investor must represent to the Issuer that it is not a prohibited foreign shell bank;
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(xv)Β the Transferee acknowledges that, each investor or prospective investor will also be required to represent to the Issuer that amounts invested with the Issuer were not directly or indirectly derived from activities that may contravene U.S. Federal, state or international laws and regulations, including, without limitation, any applicable anti-money laundering laws and regulations;
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(xvi)Β the Transferee acknowledges that, by law, the Issuer, the Placement Agent, the Loan Obligation Manager or other service providers acting on behalf of the Issuer, may be obligated to βfreezeβ any investment in a Note by such investor.Β The Issuer, the Placement Agent, the Loan Obligation Manager or other service providers acting on behalf of the Issuer may also be required to report such action and to disclose the investorβs identity to OFAC or other applicable governmental and regulatory authorities;
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(xvii)Β the Transferee understands that the Issuer, the Trustee and the Placement Agent will rely upon the accuracy and truth of the foregoing representations, and it hereby consents to such reliance; and
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(xviii)Β the Definitive Notes will bear a legend to the following effect unless the Issuer and the Co-Issuer determine otherwise in compliance with applicable law:
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THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTION, AND NEITHER THE ISSUER NOR THE CO-ISSUER HAS BEEN REGISTERED UNDER THE UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE β1940 ACTβ).Β THIS NOTE MAYΒ NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT:Β (A)(X)Β EITHER (1)Β TO A βQUALIFIED INSTITUTIONAL BUYERβ (A βQIBβ), AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (βRULE 144Aβ) OR (2)Β AN INSTITUTIONAL βACCREDITED INVESTORβ (AS DEFINED IN RULE 501(a)(1), (2), (3)Β OR (7)Β OF REGULATION D UNDER THE SECURITIES ACT,) AND (Y)Β WHO IS A βQUALIFIED PURCHASERβ AS DEFINED IN SECTIONΒ 2(a)(51) OF THE 1940 ACT AND THE RULES THEREUNDER (A βQUALIFIED PURCHASERβ) AND IS EITHER PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, WHO IS A QUALIFIED PURCHASER,Β IN A PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$500,000 (AND INTEGRAL MULTIPLES OF U.S.$500 IN EXCESS THEREOF) FOR THE PURCHASER AND FOR EACH SUCH ACCOUNT,Β IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, SO
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LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE; OR (2)Β TO A NON-βU.S. PERSONβ IN AN βOFFSHORE TRANSACTION,β AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT (βREGULATION Sβ) IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S IN A PRINCIPAL AMOUNT OF NOT LESS THAN U.S.$500,000 (AND INTEGRAL MULTIPLES OF U.S.$500 IN EXCESS THEREOF), SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE, AND (B)Β IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION.Β EACH PURCHASER OF A DEFINITIVE NOTE WILL BE REQUIRED TO MAKE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN SECTIONΒ 2.5 OF THE INDENTURE.Β ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE CO-ISSUER, AS APPLICABLE, THE TRUSTEE OR ANY INTERMEDIARY.Β IF AT ANY TIME, THE ISSUER AND THE CO-ISSUER, AS APPLICABLE, DETERMINE OR ARE NOTIFIED THAT THE HOLDER OF SUCH NOTE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE INDENTURE, THE TRUSTEE MAYΒ CONSIDER THE ACQUISITION OF THIS NOTE VOID AND REQUIRE THAT THIS NOTE BE TRANSFERRED TO A PERSON DESIGNATED BY THE ISSUER AND THE CO-ISSUER, AS APPLICABLE.
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You, the Issuer, the Co-Issuer and the Loan Obligation Manager are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
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cc:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
Arbor Realty Collateralized Loan Obligation 2013-1, LLC
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EXHIBITΒ D
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FORMΒ OF TRUSTEE REPORT REGARDING THE LOAN OBLIGATION FILE
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LOANΒ OBLIGATION SCHEDULE / CLOSING DOCUMENT CHECKLIST
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Loan NumberΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Date
Check one:Β Initial delivery Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Trailing documentsΒ Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Final delivery
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CRITICAL DOCUMENTS:
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DOCUMENTΒ NAME |
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REQUIRED |
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ENCLOSED |
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STATUS |
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A. |
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Promissory Note |
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(1) |
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(2) |
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(3) |
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B. |
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Allonge(s)/Endorsement(s) |
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Β |
Β |
Β |
Β |
Β |
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C. |
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Participation Certificate |
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Β |
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Β |
Β |
Β |
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D. |
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Participation Agreement |
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E. |
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Letter(s)Β of Credit (list separately) |
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F. |
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Letter of Credit Rider to the Closing Checklist |
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G. |
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Assignment of Letters of Credit Assignee |
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H. |
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Ground Lease |
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Β |
Β |
Β |
Β |
Β |
Β |
I. |
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Memorandum of Lease (Ground Lease) |
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Β |
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Β |
Β |
Β |
J. |
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Ground Lease Estoppel |
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BASIC AND TRANSFER DOCUMENTS
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(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Indicate whether or not the document is part of the loan structure.
(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Applies to this delivery only - do not list if documents were previously sent.
(3)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Indicate if the document is an original, jurisdiction certified copy or copy.Β For Recordable documents - Indicate if the document is recorded, sent for recordation, not sent for recordation.
(4)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Essential Letters of Credit are in an amount greater to the lesser of (i)Β 5% of the principal amount of the loan or (ii)Β $500,000.
Β
Β
Β |
Β |
DOCUMENTΒ NAME |
Β |
REQUIRED |
Β |
ENCLOSED |
Β |
STATUS |
Β |
1. |
Β |
Mortgage(s)/Deed(s)Β of Trust and Security Agreement |
Β |
Β |
Β |
Β |
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2. |
Β |
Interim Assignment of Mortgage/Deed of Trust |
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Β |
Β |
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3. |
Β |
Assignment of Mortgage/Deed of Trust |
Β |
Β |
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4. |
Β |
Consolidation Agreement |
Β |
Β |
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5. |
Β |
Assignment(s)Β of Leases and Rents |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
6. |
Β |
Interim Assignment of Assignment of Leases and Rents |
Β |
Β |
Β |
Β |
Β |
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7. |
Β |
Assignment of Assignment of Leases and Rents |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
8. |
Β |
Title Policy |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
9. |
Β |
Preliminary Evidence of Title |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
10. |
Β |
UCC-1 Financing Statement - |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
11. |
Β |
Interim UCC-3 Assignment |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
12. |
Β |
Interim UCC-3 Assignment |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
13. |
Β |
UCC-1 Financing Statement - |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
14. |
Β |
UCC-3 Assignment |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
15. |
Β |
UCC-3 Assignment |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
16. |
Β |
UCC-1 Financing Statement - |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
17. |
Β |
UCC-3 Assignment |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
18. |
Β |
UCC-3 Assignment |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
Β
Β
19. |
Β |
Loan Agreement |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
20. |
Β |
Reserve or Escrow Agreement List if multiple Agreements |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
21. |
Β |
Cash Management Arrangements |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
a. Cash Management Agreement |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
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b. Lockbox Agreement |
Β |
Β |
Β |
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c. Property Account/Clearing Account Agreement |
Β |
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Β |
Β |
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Β |
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d. Investment Property/Deposit Account Control Agreement |
Β |
Β |
Β |
Β |
Β |
Β |
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22. |
Β |
Security Agreement (if separate from Mortgage) |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
23. |
Β |
Guaranty/Indemnity Agreement (applies to all non-recourse events) |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
24. |
Β |
Environmental Indemnity |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
Β
SPECIALIZED PROPERTY DOCUMENTS
Β
Β |
Β |
DOCUMENTΒ NAME |
Β |
REQUIRED |
Β |
ENCLOSED |
Β |
STATUS |
Β |
Β |
Β |
List all other collateral being 19 delivered such as: |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
25. |
Β |
For Franchise Loans Franchise Agreement |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
26. |
Β |
For Hotels Comfort Letters/Tri-Party Letters (list all parties) |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
Β
OTHER DOCUMENTS
Β
Β |
Β |
DOCUMENTΒ NAME |
Β |
REQUIRED |
Β |
ENCLOSED |
Β |
STATUS |
Β |
27. |
Β |
List each document |
Β |
Β |
Β |
Β |
Β |
Β |
Β |
28. |
Β |
List each document |
Β |
Β |
Β |
Β |
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Β |
Β
5Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Checklist documents should match the headings listed on the individual documents.Β Documents should be sent in the order listed on the Checklist.
Β
Β
EXHIBITΒ E
Β
FORMΒ OF TRUST RECEIPT
Β
Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
(the βIssuerβ)
Β
Arbor Realty Collateral Management, LLC
(the βLoan Obligation Managerβ)
Β
Re:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
Β
Ladies and Gentlemen:
Β
In accordance with the provisions of the Indenture, dated as of JanuaryΒ 28, 2013, by and among the Issuer, Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer, Arbor Realty SR,Β Inc., as Advancing Agent, and U.S. Bank National Association, as Trustee, Paying Agent, Calculation Agent, Transfer Agent, Custodial Securities Intermediary, Backup Advancing Agent and Notes Registrar (the βIndentureβ), the undersigned, as the Custodial Securities Intermediary, hereby certifies that it has received the documents identified on Schedule A hereto with respect to the Initial Loan Obligations identified on such schedule and that it is holding all such documents in its capacity as the Custodial Securities Intermediary subject to the terms of the Indenture, Capitalized terms used but not defined in this Receipt have the meanings assigned to them in the Indenture.
Β
The Custodial Securities Intermediary makes no representations as to, and shall not be responsible to verify, (i)Β the validity, legality, enforceability, due authorization, recordability, sufficiency, or genuineness of any of the documents in its custody relating to a Loan Obligation, or (ii)Β the collectability, insurability, effectiveness or suitability of any such documents in its custody relating to a Loan Obligation.
Β
Β |
U.S. BANK NATIONAL ASSOCIATION, solely in its capacity | ||
Β |
as Trustee and Custodial Securities Intermediary | ||
Β |
Β | ||
Β |
Β | ||
Β |
By: |
Β | |
Β |
Β |
Name: |
Β |
Β |
Β |
Title: |
Β |
Β
Β
EXHIBITΒ F
Β
FORMΒ OF REQUEST FOR RELEASE
Β
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
Β
To:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β U.S. Bank National Association
Β
In connection with the administration of the Loan Obligations held by you as the Custodial Securities Intermediary on behalf of the Issuer, we request the release, to the Loan Obligation Manager of [specify document] for the Loan Obligation described below, for the reason indicated.
Β
BorrowerβsΒ Name,Β AddressΒ &Β ZipΒ Code: |
Β |
ShipΒ FilesΒ To: |
Β |
Β |
Β |
Β· |
Β |
Β·Β Β Β Name: |
Β |
Β |
Β |
Β· |
Β |
Β·Β Β Β Address: |
Β |
Β |
Β |
Β· |
Β |
Β·Β Β Β Telephone Number: |
Β |
Β |
Β |
Β·Β Β Β Loan Obligation Description: |
Β |
Β· |
Β |
Β |
Β |
Β·Β Β Β Current Outstanding Principal Balance: |
Β |
Β· |
Β
Reason for Requesting Documents (check one):
Β
oΒ 1. |
Β |
Purchased Asset Paid in Full. The Loan Obligation Manager hereby certifies that all amounts received in connection therewith that are required to be remitted by the borrower or other obligors thereunder have been paid in full and that any amounts in respect thereof required to be remitted to the Trustee pursuant to the Indenture have been so remitted. |
Β |
Β |
Β |
oΒ 2. |
Β |
Purchased Asset Liquidated By Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β . The Loan Obligation Manager hereby certifies that all proceeds of insurance, condemnation or other liquidation have been finally received and that any amounts in respect thereof required to be remitted to the Trustee pursuant to the Indenture have been so remitted. |
Β |
Β |
Β |
oΒ 3. |
Β |
Other (explain) Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β . |
Β
If box 1 or 2 above is checked, and if all or part of the Underlying Instruments was previously released to us, please release to us our previous request and receipt on file with you, as well as any additional documents in your possession relating to the specified Loan Obligation.
Β
If box 3 above is checked, upon our return of all of the above documents to you as the Custodial Securities Intermediary, please acknowledge your receipt by signing in the space indicated below and returning this form.
Β
If box 3 above is checked, it is hereby acknowledged that a security interest pursuant to the Uniform Commercial Code in the Loan Obligation described above and in the proceeds of said Loan Obligation has been granted to the Trustee pursuant to the Indenture.
Β
If box 3 above is checked, in consideration of the aforesaid delivery by the Custodial Securities Intermediary, the Loan Obligation Manager hereby agrees to hold said Loan Obligation in trust for the Trustee, as provided under
Β
Β
and in accordance with all provisions of the Indenture and the Loan Obligation Management Agreement, and to return said Loan Obligation to the Custodial Securities Intermediary no later than the close of business on the twentieth (20th) Business Day following the date hereof or, if such day is not a Business Day, on the immediately preceding Business Day.
Β
The Loan Obligation Manager hereby acknowledges that it shall hold the above-described Loan Obligation and any related Underlying Instruments in trust for, and as the bailee of, the Trustee, and shall return said Loan Obligation and any related documents only to the Custodial Securities Intermediary.
Β
Capitalized terms used but not defined in this Request have the meanings assigned to them in the Indenture, dated as of JanuaryΒ 28, 2013, by and among Arbor Realty Collateralized Loan Obligation 2013-1,Β LTD., as Issuer, Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer, Arbor Realty SR,Β Inc. as Advancing Agent, and U.S. Bank National Association, as Trustee, Paying Agent, Calculation Agent, Transfer Agent, Custodial Securities Intermediary, Backup Advancing Agent and Notes Registrar.
Β
Β
Β |
ARBOR REALTY COLLATERAL MANAGEMENT,LLC | |
Β |
Β | |
Β |
Β | |
Β |
By: |
Β |
Β |
Β |
Name: |
Β |
Β |
Title: |
Β
Acknowledgment of documents returned:
Β
Β
U.S. BANK NATIONAL ASSOCIATION |
Β | |
Β |
Β | |
Β |
Β | |
By: |
Β |
Β |
Β |
Name: |
Β |
Β |
Title: |
Β |
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Β | |
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Β | |
Date: |
Β |
Β
Β
EXHIBITΒ G
Β
FORMΒ OF NRSRO CERTIFICATION
Β
[Date]
Β
Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd.
c/o MaplesFS Limited
P.O.Β Box 1093, Queensgate House
Grand Cayman, KY1-1102 Cayman Islands
Β
U.S. Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, 0xx Floor
Chicago,Β Illinois 60603
Β
Attention:Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd. and Arbor Realty Collateralized Loan Obligation 2013-1, LLC
Β
In accordance with the requirements for obtaining certain information pursuant to the Indenture, dated as of JanuaryΒ 28, 2013 (the βIndentureβ), by and among Arbor Realty Collateralized Loan Obligation 2013-1,Β Ltd. (the βIssuerβ), as Issuer, Arbor Realty Collateralized Loan Obligation 2013-1, LLC, as Co-Issuer, Arbor Realty SR,Β Inc., as Advancing Agent, and U.S. Bank National Association (the βTrusteeβ), as Trustee, the undersigned hereby certifies and agrees as follows:
Β
1.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The undersigned, a Nationally Recognized Statistical Rating Organization, has provided the Issuer with the appropriate certifications under RuleΒ 17g-5(e)Β as promulgated under the Exchange Act.
Β
2.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The undersigned has access to the 17g-5 Website.
Β
3.Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The undersigned shall be deemed to have recertified to the provisions herein each time it accesses the 17g-5 Information on the 17g-5 Website.
Β
Capitalized terms used but not defined herein shall have the respective meanings assigned thereto in the Indenture.
Β
Β
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its duly authorized signatory, as of the day and year written above.
Β
Β |
Nationally Recognized Statistical Rating Organization |
Β |
Β |
Β |
Name: |
Β |
Title: |
Β |
Β |
Β |
Company: |
Β |
Phone: |
Β |
Email: |
Β
Β
ExhibitΒ H
Β
Representations and Warranties
Β
All capitalized terms used in this schedule to ExhibitΒ H will have the meanings assigned to such terms in the Loan Obligation Purchase Agreement.
Β
(1)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Whole Loan; Ownership of Loan Obligations.Β Each Closing Date Loan Obligation is a whole loan and not a participation interest in a Mortgage Loan.Β Each Additional Loan Obligation and Replacement Loan Obligation that is a Senior Participation is a senior portion (or a pari passu interest in a senior portion) of a whole mortgage loan.Β At the time of the sale, transfer and assignment to Purchaser, no Note, Mortgage or Senior Participation was subject to any assignment (other than assignments to the Seller), participation (other than with respect to the Senior Participations) or pledge, and the Seller had good title to, and was the sole owner of, each Loan Obligation free and clear of any and all liens, charges, pledges, encumbrances, participations (other than with respect to the Senior Participations), any other ownership interests on, in or to such Loan Obligation other than any servicing rights appointment or similar agreement.Β Seller has full right and authority to sell, assign and transfer each Loan Obligation, and the assignment to Purchaser constitutes a legal, valid and binding assignment of such Loan Obligation free and clear of any and all liens, pledges, charges or security interests of any nature encumbering such Loan Obligation.
Β
(2)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Loan Document Status. Each related Note, Mortgage, Assignment of Leases, Rents and Profits (if a separate instrument), guaranty and other agreement executed by or on behalf of the related borrower, guarantor or other obligor in connection with such Mortgage Loan is the legal, valid and binding obligation of the related borrower, guarantor or other obligor (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency or market value limit deficiency legislation), as applicable, and is enforceable in accordance with its terms, except (i)Β as such enforcement may be limited by (a)Β bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the enforcement of creditorsβ rights generally and (b)Β general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law) andΒ (ii)Β that certain provisions in such Loan Documents (including, without limitation, provisions requiring the payment of default interest, late fees or prepayment/yield maintenance or prepayment fees, charges and/or premiums) are, or may be, further limited or rendered unenforceable by or under applicable law, but (subject to the limitations set forth in clause (i)Β above) such limitations or unenforceability will not render such Loan Documents invalid as a whole or materially interfere with the mortgageeβs realization of the principal benefits and/or security provided thereby (clauses (i)Β and (ii)Β collectively, the βStandard Qualificationsβ).
Β
Except as set forth in the immediately preceding sentences, there is no valid offset, defense, counterclaim or right of rescission available to the related borrower with respect to any of the related Notes, Mortgages or other Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by Seller in connection with the origination of the Mortgage Loan, that would deny the mortgagee the principal benefits intended to be provided by the Note, Mortgage or other Loan Documents.
Β
(3)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Mortgage Provisions.Β The Loan Documents for each Mortgage Loan contain provisions that render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the principal benefits of the security intended to be provided thereby, including realization by judicial or, if applicable, nonjudicial foreclosure subject to the limitations set forth in the Standard Qualifications.
Β
(4)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Mortgage Status; Waivers and Modifications.Β Since origination and except prior to the Cut-off Date by written instruments set forth in the related Mortgage File (a)Β the material terms of such Mortgage, Note, Mortgage Loan guaranty, Participation Agreement, if applicable, and related Loan Documents have not been waived, impaired, modified, altered, satisfied, canceled, subordinated or rescinded in any respect which materially interferes with the security intended to be provided by such Mortgage; (b)Β no related Mortgaged Property or any portion thereof has been released from the lien of the related Mortgage in any
Β
Β
manner which materially interferes with the security intended to be provided by such Mortgage or the use or operation of the remaining portion of such Mortgaged Property; and (c)Β neither the related borrower nor the related guarantor nor the related Participating Institution has been released from its material obligations under the Mortgage Loan or Participation Agreement, if applicable.
Β
(5)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Lien; Valid Assignment.Β Subject to the Standard Qualifications, each assignment of Mortgage and assignment of Assignment of Leases, Rents and Profits from the Seller constitutes a legal, valid and binding assignment from the Seller.Β Each related Mortgage is a legal, valid and enforceable first lien on the related borrowerβs fee or leasehold interest in the Mortgaged Property in the principal amount of such Mortgage Loan or allocated loan amount subject to the Title Exceptions, Permitted Encumbrances and Standard Qualifications (each as defined herein). Each related Assignment of Mortgage and Assignment of Leases, Rents and Profits from the Seller to the Purchaser constitutes the legal, valid and binding first priority assignment from the Seller, except as such enforcement may be limited by the Standard Qualifications, any Permitted Encumbrances and any Title Exceptions (as defined herein).Β Each Mortgage and Assignment of Leases, Rents and Profits is freely assignable. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code (βUCCβ) financing statements is required in order to effect such perfection.
Β
(6)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Permitted Liens; Title Insurance.Β Each Mortgaged Property securing a Mortgage Loan is covered by an American Land Title Association loan title insurance policy or a comparable form of loan title insurance policy approved for use in the applicable jurisdiction (or, if such policy is yet to be issued, by a pro forma policy, a preliminary title policy with escrow instructions or a βmarked upβ commitment, in each case binding on the title insurer) (the βTitle Policyβ) in the original principal amount of such Mortgage Loan (or with respect to a Mortgage Loan secured by multiple properties, an amount equal to at least the allocated loan amount with respect to the Title Policy for each such property) after all advances of principal (including any advances held in escrow or reserves), that insures for the benefit of the owner of the indebtedness secured by the Mortgage, the first priority lien of the Mortgage, which lien is subject only to the following title exceptions (each such title exception, including any exceptions set forth on Schedule 1 hereto, a βTitle Exceptionβ and collectively, the βTitle Exceptionsβ): (a)Β the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable; (b)Β covenants, conditions and restrictions, rights of way, easements and other matters of public record; (c)Β the exceptions (general and specific) and exclusions set forth in such Title Policy; (d)Β other matters to which like properties are commonly subject; (e)Β the rights of tenants (as tenants only) under leases (including subleases) pertaining to the related Mortgaged Property and condominium declarations; and (f)Β if the related Mortgage Loan is cross-collateralized and cross-defaulted with another Mortgage Loan (each a βCrossed Mortgage Loanβ), the lien of the Mortgage for another Mortgage Loan that is cross-collateralized and cross-defaulted with such Crossed Mortgage Loan, provided that none of which items (a)Β through (f), individually or in the aggregate, materially and adversely interferes with the value or current use of the Mortgaged Property or the security intended to be provided by such Mortgage or the borrowerβs ability to pay its obligations when they become due (collectively, the βPermitted Encumbrancesβ).Β Except as contemplated by clause (f)Β of the preceding sentence, none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage.Β Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Seller thereunder and no claims have been paid thereunder. Neither the Seller, nor to the Sellerβs knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy.
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(7)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Junior Liens.Β It being understood that B notes and junior participation interests secured by the same Mortgage as a Mortgage Loan are not subordinate mortgages or junior liens, except for any Crossed Mortgage Loan, there are, as of origination, and to the Sellerβs knowledge, as of the Cut-off Date, no subordinate mortgages or junior liens securing the payment of money encumbering the related Mortgaged Property (other than Permitted Encumbrances and the Title Exceptions, taxes and assessments, mechanics and materialmens liens (which are the subject of the representation in paragraph (5)Β above), and equipment and other personal property financing).Β Except as set forth in the applicable Loan Obligations Purchase
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Agreement, the Seller has no knowledge of any mezzanine debt secured directly by interests in the related borrower.
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(8)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Assignment of Leases, Rents and Profits.Β There exists as part of the related Mortgage File an Assignment of Leases, Rents and Profits (either as a separate instrument or incorporated into the related Mortgage). Subject to the Permitted Encumbrances and the Title Exceptions, each related Assignment of Leases, Rents and Profits creates a valid first-priority collateral assignment of, or a valid first-priority lien or security interest in, rents and certain rights under the related lease or leases, subject only to a license granted to the related borrower to exercise certain rights and to perform certain obligations of the lessor under such lease or leases, including the right to operate the related leased property, except as the enforcement thereof may be limited by the Standard Qualifications.Β The related Mortgage or related Assignment of Leases, Rents and Profits, subject to applicable law, provides that, upon an event of default under the Mortgage Loan, a receiver is permitted to be appointed for the collection of rents or for the related mortgagee to enter into possession to collect the rents or for rents to be paid directly to the mortgagee.
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(9)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β UCC Filings.Β If the related Mortgaged Property is operated as a hospitality property, the Seller has filed and/or recorded or caused to be filed and/or recorded (or, if not filed and/or recorded, have been submitted in proper form for filing and/or recording), UCC financing statements in the appropriate public filing and/or recording offices necessary at the time of the origination of the Mortgage Loan to perfect a valid security interest in all items of physical personal property reasonably necessary to operate such Mortgaged Property owned by such borrower and located on the related Mortgaged Property (other than any non-material personal property, any personal property subject to a purchase money security interest, a sale and leaseback financing arrangement as permitted under the terms of the related Mortgage Loan documents or any other personal property leases applicable to such personal property), to the extent perfection may be effected pursuant to applicable law by recording or filing, as the case may be.Β Subject to the Standard Qualifications, each related Mortgage (or equivalent document) creates a valid and enforceable lien and security interest on the items of personalty described above.Β No representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of UCC financing statements are required in order to effect such perfection.
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(10)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Condition of Property.Β Seller or the originator of the Mortgage Loan (i)Β inspected or caused to be inspected each related Mortgaged Property at least six months prior to origination of the Mortgage Loan and, (ii)Β if the term of the Mortgage Loan has already continued for at least twelve months, inspected or caused to be inspected each related Mortgaged Property at least once during the past twelve months.
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An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan at least twelve months prior to the origination of such Mortgage Loan.Β To the Sellerβs knowledge, based solely upon due diligence customarily performed in connection with the origination of comparable mortgage loans, as of the Closing Date, each related Mortgaged Property was free and clear of any material damage (other than (i)Β deferred maintenance for which escrows were established at origination and (ii)Β any damage fully covered by insurance) that would affect materially and adversely the use or value of such Mortgaged Property as security for the Mortgage Loan.
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(11)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Taxes and Assessments.Β All taxes, governmental assessments and other outstanding governmental charges (including, without limitation, water and sewage charges), or installments thereof, that could be a lien on the related Mortgaged Property that would be of equal or superior priority to the lien of the Mortgage and that prior to the Cut-off Date have become delinquent in respect of each related Mortgaged Property have been paid, or an escrow of funds has been established in an amount sufficient to cover such payments and reasonably estimated interest and penalties, if any, thereon.Β For purposes of this representation and warranty, real estate taxes and governmental assessments and other outstanding governmental charges and installments thereof shall not be considered delinquent until the earlier of (a)Β the date on which interest and/or penalties would first be payable thereon and (b)Β the date on which enforcement action is entitled to be taken by the related taxing authority.
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(12)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Condemnation.Β As of the date of origination and to the Sellerβs knowledge as of the Cut-off Date, there is no proceeding pending, and, to the Sellerβs knowledge as of the date of origination and as of the Cut-off Date, there is no proceeding threatened, for the total or partial condemnation of such Mortgaged Property that would have a material adverse effect on the value, use or operation of the Mortgaged Property.
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(13)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Actions Concerning Mortgage Loan.Β As of the date of origination and to the Sellerβs knowledge as of the Cut-off Date, there was no pending or filed action, suit or proceeding, arbitration or governmental investigation involving any borrower, guarantor, or borrowerβs interest in the Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a)Β such borrowerβs title to the Mortgaged Property, (b)Β the validity or enforceability of the Mortgage, (c)Β such borrowerβs ability to perform under the related Mortgage Loan, (d)Β such guarantorβs ability to perform under the related guaranty, (e)Β the principal benefit of the security intended to be provided by the Mortgage Loan documents or (f)Β the current principal use of the Mortgaged Property.
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(14)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Escrow Deposits.Β All escrow deposits and payments required to be escrowed with lender pursuant to each Mortgage Loan are in the possession, or under the control, of the Seller or its servicer, and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits (or the right thereto) that are required to be escrowed with lender under the related Loan Documents are being conveyed by the Seller to Purchaser or its servicer.
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(15)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Holdbacks.Β The Stated Principal Balance as of the Cut-off Date of the Mortgage Loan set forth on the mortgage loan schedule attached as ExhibitΒ A to the applicable Loan Obligations Purchase Agreement has been fully disbursed as of the Closing Date and there is no requirement for future advances thereunder (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs or other matters with respect to the related Mortgaged Property, the borrower or other considerations determined by Seller to merit such holdback).
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(16)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Insurance.Β Each related Mortgaged Property is, and is required pursuant to the related Mortgage to be, insured by a property insurance policy providing coverage for loss in accordance with coverage found under a βspecial cause of loss formβ or βall risk formβ that includes replacement cost valuation issued by an insurer meeting the requirements of the related Loan Documents and having a claims-paying or financial strength rating of at least A or better and a financial class of X or better byΒ A.M. Best Company,Β Inc. (collectively the βInsurance Rating Requirementsβ), in an amount (subject to a customary deductible) not less than the lesser of (1)Β the original principal balance of the Mortgage Loan and (2)Β the full insurable value on a replacement cost basis of the improvements, furniture, furnishings, fixtures and equipment owned by the borrower and included in the Mortgaged Property (with no deduction for physical depreciation), but, in any event, not less than the amount necessary or containing such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.
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Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Loan Documents, by business interruption or rental loss insurance which (subject to a customary deductible) covers a period of not less than 12 months (or with respect to each Mortgage Loan on a single asset with a principal balance of $50 million or more, 18 months).
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If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related borrowerΒ is required to maintain insuranceΒ in the maximum amount available under the National Flood Insurance Program.
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If the Mortgaged Property is located within 25 miles of the coast of the Gulf of Mexico or the Atlantic coast of Florida, Georgia, South Carolina or North Carolina, the related borrower is required to maintain coverage for windstorm and/or windstorm related perils and/or βnamed stormsβ issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms.
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The Mortgaged Property is covered, and required to be covered pursuant to the related Loan Documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Seller for loans originated for securitization, and in any event not less than $1 million per occurrence and $1 million in the aggregate.
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An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the scenario expected limit (βSELβ) for the Mortgaged Property in the event of an earthquake. In such instance, the SEL was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the SEL would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained by an insurer rated least βA:VIIIβ byΒ A.M. Best Company or βA3β (or the equivalent) from Xxxxxβx Investors Service,Β Inc. or βA-βΒ by StandardΒ & Poorβs Ratings Service in an amount not less than 100% of the SEL.
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The Loan Documents provide that if a specified percentage (which is in no event greater than 20%) of the reasonably estimated aggregate fair market value of the Mortgaged Property is damaged or destroyed, the lender shall have the option, in its sole discretion, to apply the net casualty insurance proceeds received to the payment of the Mortgage Loan or to allow such proceeds to be used for the repair or restoration of the Mortgaged Property.
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All premiums on all insurance policies referred to in this section required to be paid as of the Cut-off Date have been paid, and such insurance policies name the lender under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee.Β Each related Mortgage Loan obligates the related borrower to maintain all such insurance and, at such borrowerβs failure to do so, authorizes the lender to maintain such insurance at the borrowerβs cost and expense and to charge such borrower for related premiums.Β All such insurance policies (other than commercial liability policies) require at least 30 days prior notice to the lender of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by Seller.
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(17)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Access; Utilities; Separate Tax Lots.Β Each Mortgaged Property (a)Β is located on or adjacent to a public road and has direct legal access to such road, or has accessΒ via an irrevocable easement or irrevocable right of way permitting ingress and egress to/from a public road, (b)Β is served by or has uninhibited access rights to public or private water and sewer (or well and septic) and all required utilities, all of which are appropriate for the current use of the Mortgaged Property, and (c)Β constitutes one or more separate tax parcels which do not include any property which is not part of the Mortgaged Property or is subject to an endorsement under the related Title Policy insuring the Mortgaged Property, or in certain cases, an application has been, or will be, made to the applicable governing authority for creation of separate tax lots, in which case the Mortgage Loan requires the borrower to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Mortgaged Property is a part until the separate tax lots are created.
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(18)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Encroachments.Β To Sellerβs knowledge based solely on surveys obtained in connection with origination and the lenderβs Title Policy (or, if such policy is not yet issued, a pro forma title policy, a preliminary title policy with escrow instructions or a βmarked upβ commitment) obtained in connection with the origination of each Mortgage Loan, all material improvements that were included for the purpose of determining the appraised value of the related Mortgaged Property at the time of the origination of such Mortgage Loan are within the boundaries of the related Mortgaged Property, except encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy.Β No improvements on adjoining parcels encroach onto the related Mortgaged Property except for encroachments that do not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements were obtained under the Title Policy.Β No improvements encroach upon any easements except for encroachments the
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removal of which would not materially and adversely affect the value or current use of such Mortgaged Property or for which insurance or endorsements obtained with respect to the Title Policy.
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(19)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Contingent Interest or Equity Participation.Β No Mortgage Loan has a shared appreciation feature, any other contingent interest feature or a negative amortization feature or an equity participation by Seller.
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(20)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Compliance with Usury Laws.Β The Mortgage Rate (exclusive of any default interest, late charges, yield maintenance charge, or prepayment premiums) of such Mortgage Loan complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury.
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(21)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Authorized to do Business.Β To the extent required under applicable law, as of the Cut-off Date or as of the date that such entity held the Note, each holder of the Note was authorized to transact and do business in the jurisdiction in which each related Mortgaged Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the Trust.
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(22)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Trustee under Deed of Trust.Β With respect to each Mortgage which is a deed of trust, as of the date of origination and, to the Sellerβs knowledge, as of the Closing Date, a trustee, duly qualified under applicable law to serve as such, currently so serves and is named in the deed of trust or has been substituted in accordance with the Mortgage and applicable law or may be substituted in accordance with the Mortgage and applicable law by the related mortgagee.
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(23)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Local Law Compliance.Β To the Sellerβs knowledge, based upon any of a letter from any governmental authorities, a legal opinion, an architectβs letter, a zoning consultantβs report, an endorsement to the related Title Policy, or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multi-family mortgage loans intended for securitization, with respect to the improvements located on or forming part of each Mortgaged Property securing a Mortgage Loan as of the date of origination of such Mortgage Loan and as of the Cut-off Date, there are no material violations of applicable zoning ordinances, building codes and land laws (collectively βZoning Regulationsβ) other than those which (i)Β are insured by the Title Policy or a law and ordinance or other insurance policy or (ii)Β would not have a material adverse effect on the Mortgage Loan.Β The terms of the Loan Documents require the borrower to comply in all material respects with all applicable governmental regulations, zoning and building laws.
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(24)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Licenses and Permits.Β Each borrower covenants in the Loan Documents that it shall keep all material licenses, permits and applicable governmental authorizations necessary for its operation of the Mortgaged Property in full force and effect, and to the Sellerβs knowledge based upon a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by the Seller for similar commercial and multi-family mortgage loans intended for securitization, all such material licenses, permits and applicable governmental authorizations are in effect.Β The Mortgage Loan requires the related borrower to be qualified to do business in the jurisdiction in which the related Mortgaged Property is located.
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(25)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Recourse Obligations.Β The Loan Documents for each Mortgage Loan provide that such Mortgage Loan is non-recourse to the related parties thereto except for certain carve-outs, including but not limited to the following: (a)Β the related borrower and at least one individual or entity shall be fully liable for actual losses, liabilities, costs and damages arising from certain acts of the related borrower and/or its principals specified in the related Loan Documents, which acts generally include the following: (i)Β acts of fraud or intentional material misrepresentation, (ii)Β misapplication or misappropriation of rents, insurance proceeds or condemnation awards, (iii)Β intentional material physical waste of the Mortgaged Property, and (iv)Β any breach of the environmental covenants contained in the related Loan Documents, and (b)Β the Mortgage Loan shall become full recourse to the related borrower and at least one individual or entity, if the related borrower files a voluntary petition under federal or state bankruptcy or insolvency law.
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(26)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Mortgage Releases.Β The terms of the related Mortgage or related Loan Documents do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a)Β a partial
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release, accompanied by principal repayment of not less than a specified percentage at least equal to the lesser of (i)Β 110% of the related allocated loan amount of such portion of the Mortgaged Property and (ii)Β the outstanding principal balance of the Mortgage Loan, (b)Β upon payment in full of such Mortgage Loan, (c)Β releases of out-parcels that are unimproved or other portions of the Mortgaged Property which will not have a material adverse effect on the underwritten value of the Mortgaged Property and which were not afforded any value in the appraisal obtained at the origination of the Mortgage Loan and are not necessary for physical access to the Mortgaged Property or compliance with zoning requirements, or (d)Β as required pursuant to an order of condemnation.
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(27)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Financial Reporting and Rent Rolls.Β Each Mortgage requires the borrower to provide the owner or holder of the Mortgage with quarterly and annual operating statements, and quarterly rent rolls for properties and annual financial statements, which annual financial statements with respect to each Mortgage Loan with more than one borrower are in the form of an annual combined balance sheet of the borrower entities (and no other entities), together with the related combined statements of operations, membersβ capital and cash flows, including a combining balance sheet and statement of income for the Mortgaged Properties on a combined basis.
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(28)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Acts of Terrorism Exclusion.Β With respect to each Mortgage Loan over $20Β million, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) do not specifically exclude Acts of Terrorism, as defined in the Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Program Reauthorization Act of 2007 (collectively referred to as βTRIAβ), from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy.Β With respect to each other Mortgage Loan, the related special-form all-risk insurance policy and business interruption policy (issued by an insurer meeting the Insurance Rating Requirements) did not, as of the date of origination of the Mortgage Loan, and, to Sellerβs knowledge, do not, as of the Cut-off Date, specifically exclude Acts of Terrorism, as defined in TRIA, from coverage, or if such coverage is excluded, it is covered by a separate terrorism insurance policy.Β With respect to each Mortgage Loan, the related Loan Documents do not expressly waive or prohibit the mortgagee from requiring coverage for Acts of Terrorism, as defined in TRIA, or damages related thereto except to the extent that any right to require such coverage may be limited by commercial availability on commercially reasonable terms, or as otherwise indicated in the applicable Loan Obligations Purchase Agreement; provided, however, that if TRIA or a similar or subsequent statute is not in effect, then, provided that terrorism insurance is commercially available, the borrower under each Mortgage Loan is required to carry terrorism insurance, but in such event the borrower shall not be required to spend on terrorism insurance coverage more than two times the amount of the insurance premium that is payable in respect of the property and business interruption/rental loss insurance required under the related Loan Documents (without giving effect to the cost of terrorism and earthquake components of such casualty and business interruption/rental loss insurance) at the time of the origination of the Mortgage Loan, and if the cost of terrorism insurance exceeds such amount, the borrower is required to purchase the maximum amount of terrorism insurance available with funds equal to such amount.
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(29)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Due on Sale or Encumbrance.Β Subject to specific exceptions set forth below, each Mortgage Loan contains a βdue on saleβ or other such provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan if, without the consent of the holder of the Mortgage (which consent, in some cases, may not be unreasonably withheld) and/or complying with the requirements of the related Loan Documents (which provide for transfers without the consent of the lender which are customarily acceptable to the Seller lending on the security of property comparable to the related Mortgaged Property, including, without limitation, transfers of worn-out or obsolete furnishings, fixtures, or equipment promptly replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Loan Documents), (a)Β the related Mortgaged Property, or any equity interest of greater than 50% in the related borrower, is directly or indirectly pledged, transferred or sold, other than as related to (i)Β family and estate planning transfers or transfers upon death or legal incapacity, (ii)Β transfers to certain affiliates as defined in the related Loan Documents, (iii)Β transfers of less than, or other than, a controlling interest in the related borrower, (iv)Β transfers to another holder of direct or indirect equity in the borrower, a specific Person designated in the related Loan Documents or a Person satisfying specific criteria identified in the related Loan Documents, such as a qualified equityholder, (v)Β transfers of stock or similar equity units in
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publicly traded companies or (vi)Β a substitution or release of collateral within the parameters of paragraph (26) herein or the exceptions thereto set forth in the applicable Loan Obligations Purchase Agreement, or (vii)Β as set forth on the applicable Loan Obligations Purchase Agreement by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or future permitted mezzanine debt as set forth on Schedule 3 hereto or (b)Β the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i)Β any Companion Loan or any subordinate debt that existed at origination and is permitted under the related Loan Documents, (ii)Β purchase money security interests,Β (iii)Β any Crossed Mortgage Loan as set forth on ScheduleΒ 4 hereto, or (iv)Β Permitted Encumbrances.Β The Mortgage or other Loan Documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the borrower is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.
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(30)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Single-Purpose Entity.Β Each Mortgage Loan requires the borrower to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding.Β Both the Loan Documents and the organizational documents of the borrower with respect to each Mortgage Loan with a Cut-off Date Stated Principal Balance in excess of $5 million provide that the borrower is a Single-Purpose Entity, and each Mortgage Loan with a Cut-off Date Stated Principal Balance of $20 million or more has a counselβs opinion regarding non-consolidation of the borrower.Β For this purpose, a βSingle-Purpose Entityβ shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a Cut-off Date Stated Principal Balance equal to $5 million or less, its organizational documents or the related Loan Documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and operating one or more of the Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging in any business unrelated to such Mortgaged Property or Properties, and whose organizational documents further provide, or which entity represented in the related Loan Documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Mortgaged Property or Properties, or any indebtedness other than as permitted by the related Mortgage(s)Β or the other related Loan Documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a borrower for a Crossed Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.
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(31)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Ground Leases.Β For purposes of each Loan Obligations Purchase Agreement, a βGround Leaseβ shall mean a lease creating a leasehold estate in real property where the fee owner as the ground lessor conveys for a term or terms of years its entire interest in the land and buildings and other improvements, if any, comprising the premises demised under such lease to the ground lessee (who may, in certain circumstances, own the building and improvements on the land), subject to the reversionary interest of the ground lessor as fee owner and does not include industrial development agency (XXX) or similar leases for purposes of conferring a tax abatement or other benefit.
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With respect to any Mortgage Loan where the Mortgage Loan is secured by a leasehold estate under a Ground Lease in whole or in part, and the related Mortgage does not also encumber the related lessorβs fee interest in such Mortgaged Property, based upon the terms of the Ground Lease and any estoppel or other agreement received from the ground lessor in favor of Seller, its successors and assigns, Seller represents and warrants that:
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(a)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction.Β The Ground Lease or an estoppel or other agreement received from the ground lessor permits the interest of the lessee to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns in a manner that would materially adversely affect the security provided by the related Mortgage;
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(b)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) that the Ground Lease may not be amended orΒ modified, or canceled or terminated by agreement of lessor and xxxxxx, without the prior written consent of the lender, and
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no such consent has been granted by the Seller since the origination of the Mortgage Loan except as reflected in any written instruments which are included in the related Mortgage File;
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(c)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Ground Lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by either borrower or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
Β
(d)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Ground Lease either (i)Β is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances, or (ii)Β Β is subject to a subordination, non-disturbance and attornment agreement to which the mortgagee on the lessorβs fee interest in the Mortgaged Property is subject;
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(e)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor;
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(f)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Seller has not received any written notice of material default under or notice of termination of such Ground Lease.Β To the Sellerβs knowledge, there is no material default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a material default under the terms of such Ground Lease and to the Sellerβs knowledge, such Ground Lease is in full force and effect as of the Closing Date;
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(g)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, and provides that no notice of default or termination is effective against the lender unless such notice is given to the lender;
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(h)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β A lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the Ground Lease through legal proceedings) to cure any default under the Ground Lease which is curable after the lenderβs receipt of notice of any default before the lessor may terminate the Ground Lease;
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Seller in connection with loans originated for securitization;
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(j)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lesseeβs interest (other than (i)Β de minimis amounts for minor casualties or (ii)Β in respect of a total or substantially total loss or taking as addressed in clause (k)Β below) will be applied either to the repair or to restoration of all or part of the related Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Loan Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
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(k)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β In the case of a total or substantially total taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground xxxxxxβs interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not
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applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
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(l)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with the lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.
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(32)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Servicing.Β The servicing and collection practices used by the Seller with respect to the Mortgage Loan have been, in all respects, legal and have met customary industry standards for servicing of commercial loans for conduit loan programs.
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(33)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Origination and Underwriting.Β The origination practices of the Seller (or the related originator if the Seller was not the originator) with respect to each Mortgage Loan have been, in all material respects, legal and as of the date of its origination, such Mortgage Loan and the origination thereof complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination of such Mortgage Loan; provided that such representation and warranty does not address or otherwise cover any matters with respect to federal, state or local law otherwise covered in the this ExhibitΒ H.
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(34)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β No Material Default; Payment Record.Β No Mortgage Loan has been more than 30 days delinquent, without giving effect to any grace or cure period, in making required payments since origination, and as of the date hereof, no Mortgage Loan is more than 30 days delinquent (beyond any applicable grace or cure period) in making required payments as of the Closing Date.Β To the Sellerβs knowledge, there is (a)Β no material default, breach, violation or event of acceleration existing under the related Mortgage Loan or Participation Agreement, if applicable, or (b)Β no event (other than payments due but not yet delinquent) which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, which default, breach, violation or event of acceleration, in the case of either clause (a)Β or clause (b), materially and adversely affects the value of the Mortgage Loan or Participation Agreement, if applicable, or the value, use or operation of the related Mortgaged Property, provided, however, that this representation and warranty does not cover any default, breach, violation or event of acceleration that specifically pertains to or arises out of an exception scheduled to any other representation and warranty made by the Seller in this ExhibitΒ H.Β No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Loan Documents.
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(35)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Bankruptcy.Β As of the date of origination of the related Mortgage Loan and to the Sellerβs knowledge as of the Cut-off Date, no borrower, guarantor or tenant occupying a single-tenant property is a debtor in state or federal bankruptcy, insolvency or similar proceeding.
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(36)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Organization of Borrower.Β With respect to each Mortgage Loan, in reliance on certified copies of the organizational documents of the borrower delivered by the borrower in connection with the origination of such Mortgage Loan, the borrower is an entity organized under the laws of a state of the United States of America, the District of Columbia or the Commonwealth of Puerto Rico.Β Except with respect to any Crossed Mortgage Loan, no Mortgage Loan has a borrower that is an Affiliate of another borrower. (An βAffiliateβ for purposes of this paragraph (36) means, a borrower that is under direct or indirect common ownership and control with another borrower.)
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(37)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Environmental Conditions.Β A Phase I environmental site assessment (or update of a previous Phase I and or Phase II site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an βESAβ) meeting ASTM requirements conducted by a reputable environmental consultant in connection with such Mortgage Loan was delivered to seller within 12 months prior to the origination date of each Mortgage Loan (or an update of a previous ESA was prepared), and such ESA (i)Β did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-05 or its successor, hereinafter βEnvironmental Conditionβ) at the related Mortgaged Property or the need for further investigation, or (ii)Β if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true:Β (A)Β an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the
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estimated cost to cure any material noncompliance with applicable environmental laws or the Environmental Condition has been escrowed by the related borrower and is held or controlled by the related lender; (B)Β if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, and the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related borrower that can reasonably be expected to mitigate the identified risk; (C)Β the Environmental Condition identified in the related environmental report was remediated or abated in all material respects prior to the date hereof, and, if and as appropriate, a no further action or closure letter was obtained from the applicable governmental regulatory authority (or the Environmental Condition affecting the related Mortgaged Property was otherwise listed by such governmental authority as βclosedβ or a reputable environmental consultant has concluded that no further action is required); (D)Β a secured creditor environmental policy or a pollution legal liability insurance policy that covers liability for the Environmental Condition was obtained from an insurer rated no less than A- (or the equivalent) by Xxxxxβx, S&P and/or Fitch; (E)Β a party not related to the borrower was identified as the responsible party for such Environmental Condition and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F)Β a party related to the borrower having financial resources reasonably estimated to be adequate to address the situation is required to take action.Β To Sellerβs knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-05 or its successor) at the related Mortgaged Property.
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(38)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Appraisal.Β The Servicing File contains an appraisal of the related Mortgaged Property with an appraisal date within six months of the Mortgage Loan origination date.Β The appraisal is signed by an appraiser who is either a Member of the Appraisal Institute (βMAIβ) and/or has been licensed and certified to prepare appraisals in the state where the Mortgaged Property is located. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the βUniform Standards of Professional Appraisal Practiceβ as adopted by the Appraisal Standards Board of the Appraisal Foundation and has certified that such appraiser had no interest, direct or indirect, in the Mortgaged Property or the borrower or in any loan made on the security thereof, and its compensation is not affected by the approval or disapproval of the Mortgage Loan.
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(39)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Loan Obligation Schedule.Β The information pertaining to each Loan Obligation that is set forth in the schedule attached as ExhibitΒ A to the Loan Obligations Purchase Agreement is true and correct in all material respects as of the Cut-off Date and contains all information required by the Loan Obligations Purchase Agreement to be contained therein.
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(40)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Cross-Collateralization.Β No Mortgage Loan is cross-collateralized or cross-defaulted with any mortgage loan that is outside the Trust, except as set forth in the applicable Loan Obligations Purchase Agreement.
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(41)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Advance of Funds by the Seller.Β After origination, no advance of funds has been made by Seller to the related borrower other than in accordance with the Loan Documents, and, to Sellerβs knowledge, no funds have been received from any person other than the related borrower or an affiliate for, or on account of, payments due on the Mortgage Loan (other than as contemplated by the Loan Documents, such as, by way of example and not in limitation of the foregoing, amounts paid by the tenant(s)Β into a lender-controlled lockbox if required or contemplated under the related lease or Loan Documents).Β Neither Seller nor any affiliate thereof has any obligation to make any capital contribution to any borrower under a Mortgage Loan, other than contributions made on or prior to the date hereof.
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(42)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Compliance with Anti-Money Laundering Laws.Β Seller (or the related originator if the Seller was not the originator) has complied in all material respects with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan, the failure to comply with which would have a material adverse effect on the Mortgage Loan.
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(43)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Floating Interest Rates. Each Mortgage Loan bears interest at a floating rate based on LIBOR.
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(44)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Senior Participations. With respect to each Loan Obligation that is a Senior Participation:
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(i)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Either (A)Β the Senior Participation is treated as a real estate asset for purposes of SectionΒ 856(c)Β of the Code, and the interest payable pursuant to such Senior Participation is treated as interest on an obligation secured by a mortgage on real property or on an interest in real property for purposes of SectionΒ 856(c)Β of the Code, or (B)Β the Senior Participation qualifies as a security that would not otherwise cause ARMS Equity to fail to qualify as a REIT under the Code (including after the sale, transfer and assignment to the Issuer of such Senior Participation);
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(ii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β To the actual knowledge of the Seller, as of the Closing Date, the related Participating Institution was not a debtor in any outstanding proceeding pursuant to the federal bankruptcy code; and
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(iii)Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β The Seller has not received written notice of any outstanding liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind for which the holder of such Senior Participation is or may become obligated.
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For purposes of these representations and warranties, the phrases βthe Sellerβs knowledgeβ or βthe Sellerβs beliefβ and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the Seller, its officers and employees directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein.
Β