Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including the Collateral Management Standard): (a) determining specific Collateral Interests (including Subsequent Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture; (b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture; (c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals; (d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents; (e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture; (f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture; (g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold and directing the Special Servicer or the Trustee, as applicable, to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter; (h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing Agreement, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing information specifically requested by the Note Administrator in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture (i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement); (j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction; (k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture; (l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by the Issuer, as applicable, either be impractical or not beneficial to the Holders of the Securities; (m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture; (n) monitoring the Issuer’s compliance with the covenants by the Issuer in the Indenture; (o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement; (p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer; (q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; (r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement; (s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and (t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) and Eligible Investments, and (ii) to execute and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral Interests, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management Standard. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indenture.
Appears in 2 contracts
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.), Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide to the Issuer with certain services in relation to the Collateral Assets specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide to the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) Indenture and this Agreement, Agreement including without limitation the Collateral Management Manager Servicing Standard):
(a) determining specific Collateral Interests (including Subsequent Collateral Interests) Debt Securities to be purchased or otherwise acquired Collateral Debt Securities to be sold and the timing of such purchases or acquisitionsand sales, in each case as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, case as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Interests Debt Securities and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Intereststherefrom, in each case, case as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors the issuers of Collateral Interests Debt Securities as to proposed modifications or waivers of the Loan Documentsdocumentation governing such Collateral Debt Securities;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest issuer or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interestissuer) or remedies in connection with the Collateral Interests Debt Securities and Eligible Investments, as provided in the related Loan DocumentsUnderlying Instruments, including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interestissuer, or taking any other action with respect to Collateral Interests Debt Securities and Eligible Investments which the Collateral Manager determines, determines in accordance with the Collateral Management Standard (and subject to the applicable provisions reasonable exercise of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), ’s business judgment is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each the Rating Agency Agencies at such times as may be reasonably requested by any the Rating Agency in compliance with Section 19 of this Agreement Agencies and providing each to the Rating Agency with Agencies any information reasonably requested in connection with such the Rating Agency’s Agencies’ maintenance of its their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Debt Securities are Credit Risk Collateral Interests Securities, Defaulted Securities or Defaulted Collateral Interests, Written Down Securities and determining whether such Collateral InterestsDebt Securities, and any other Collateral Interests Debt Securities that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsDebt Securities, subject to, to and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Assets on an ongoing basis, basis and (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other applicable parties specified in the Indenture all reports, schedules and certificates that which relate to the Collateral Interests Assets and that which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator Trustee on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date StatementNote Valuation Reports, providing to the Trustee the information specifically requested by the Note Administrator as specified in accordance with Section 10.9 Sections 10.9(c) and 10.9(e) of the Indenture in sufficient time for the Note Administrator Trustee to prepare the Monthly Report Reports and the Redemption Date StatementNote Valuation Reports) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Coverage Tests, the Acquisition CriteriaCollateral Quality Tests, the Acquisition and Disposition Requirements Reinvestment Criteria and the other requirements of the Indenture Indenture, and taking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Manager Servicing Agreement Standard and the standard of care set forth herein with respect to any portion of the Collateral Assets that does not constitute Collateral Interests Debt Securities or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) monitoring all Hedge Agreements and determining whether and when the Issuer should exercise any rights available under any Hedge Agreement, and causing the Issuer to enter into additional or replacement Hedge Agreements or terminating (in part or in whole) existing Hedge Agreements, in each case in accordance with the Indenture;
(k) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Trustee and the Issuer upon receiving actual notice that a Collateral Interest Debt Security is subject to an Offer or has become a Defaulted Collateral Interest Security, a Written Down Security or a Credit Risk Collateral Interest or has suffered an appraisal reductionSecurity;
(kl) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Trustee and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(lm) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsDebt Securities, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent additional Collateral Interests Debt Securities would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the IssuerReinvestment Period, as applicable, be either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(mn) if the Collateral Manager elects to amortize the Notes pursuant to and in accordance with Section 9.7 of the Indenture, providing notification, in writing, to the Trustee, the Issuer, the Co-Issuer and each Hedge Counterparty of (A) such election and (B) the amount of proceeds that will be used to so amortize the Notes;
(o) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(np) on the Stated Maturity of the Notes or in connection with any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call, liquidating any remaining Hedge Agreements;
(q) monitoring the ratings of the Collateral Debt Securities and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(or) making such determinations, exercising such rights and assisting the Issuer in (i) taking such actions, on behalf any action in order to effect and/or maintain the listing of any of the IssuerNotes on the Irish Stock Exchange or (ii) obtaining any waiver from the Irish Stock Exchange, or (iii) providing other information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of the Collateral Manager is authorized to do under by the Indenture, the Servicing Agreement Indenture or this Agreement;
(pt) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(qu) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral Assets if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(sv) upon reasonable request, assisting the Trustee, the Note Administrator Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(tw) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Manager Servicing Agreement)Standard, enforcing the rights of the Issuer as holder of the Collateral InterestsDebt Securities, including without limitation taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents Underlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and convert otherwise trade Collateral Interests (including Subsequent Collateral Interests) Debt Securities and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (tw) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or Manager, a purchaser of a Collateral Interest Debt Security or Eligible InvestmentInvestment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager Manager, such purchaser or such purchaser Hedge Counterparty all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (ia) exercises with respect to comparable assets that it manages for itself and (iib) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsAssets, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”)Indenture. In addition, the Collateral Manager shall use its best commercially reasonable efforts to ensure that (i) inquiries are made, directions to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, Trustee with respect to the occurrence purchase of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best commercially reasonable judgment at the time of such commitmentdirection, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management StandardIndenture. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 ten Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that that, with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral Assets pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indenture.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Gramercy Capital Corp), Collateral Management Agreement (Gramercy Capital Corp)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall will provide the Issuer with the following services (in accordance with all and subject to the applicable requirements of the Indenture, the Indenture and CDO Servicing Agreement (as defined below) and this Agreement, including the Collateral Management Standard):
(a) determining specific identifying Collateral Interests (including Subsequent to be sold and Additional Collateral Interests) Interests to be purchased or otherwise acquired by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (including, without limitation, the Ramp-Up Criteria and the Reinvestment Criteria, as applicable), and the timing thereof with a view to maximizing the recovery on such Collateral Interests and taking into consideration the payment obligations of the Issuer under the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such purchases or acquisitions, as permitted by the Indenturepayment obligations;
(b) determining specific Eligible Investments to be purchased whether Collateral Interests have become Impaired Interests, Credit Risk Interests or sold and the timing of such purchases and sales, in each case, as permitted by the IndentureBuy/Sell Interests;
(c) effecting or directing the purchase of Collateral Interests making determinations and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rights (includingrights, without limitation, including but not limited to voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with the Collateral Interests and Eligible Investments, as provided in the related Loan Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action Commercial Mortgage Loans;
(d) (i) with respect to Collateral Interests and Eligible Investments that are CMBS Securities or Real Estate CDO Securities, for each such Collateral Interest as to which the Collateral Manager determinesIssuer has the right to select (or to vote on the selection of) on behalf of the Issuer, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer in accordance with the terms of the documents providing such rights and (ii) with respect to Collateral Management Standard (Interests that are Mortgage Loan Interests, Subordinate Mortgage Loan Interests, Mezzanine Loan Interests or Credit Tenant Lease Loans, to consult with and subject advise the CDO Servicer with respect to the applicable provisions CDO Servicer’s exercise of such rights pursuant to the CDO Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or Real Estate CDO Securities, dated as determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agentany payment on, the Collateral ManagerInterests or any underlying Commercial Mortgage Loans or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, Situs Asset Management LLCto the extent such approval is required or permitted and delivering such approval or consent, as servicerapplicable and (ii) with respect to Collateral Interests that are Mortgage Loan Interests, Subordinate Mortgage Loan Interests, Mezzanine Loan Interests or Credit Tenant Lease Loan Interests, consulting with, and Situs Holdings, LLC, as special servicer), is in advising the best interests CDO Servicer with respect to the CDO Servicer’s exercise of all of such approval or consent rights pursuant to the Noteholders in accordance with and as permitted by the terms of the IndentureCDO Servicing Agreement;
(f) with respect to all Collateral Interests, for each such Collateral Interest as to which the Issuer has the right to select (or to vote on the selection of) on behalf of the Issuer, the special servicer, to exercise such right on behalf of the Issuer in accordance with the terms of the documents providing such rights (and, for the avoidance of doubt, without a Servicer Override); provided, however, that if any such special servicer is appointed other than in the context of a rated securitization, the Rating Agency Condition shall be satisfied with respect to such special servicer; provided, further, that the Collateral Manager may serve as such special servicer as long as it either meets the requirements specified in the CDO Servicing Agreement relating to such special servicer qualifications or receives Rating Agency Confirmation.
(g) consulting with each any rating agencies rating any Class of Notes (the “Rating Agency Agencies”) at such times as may be reasonably requested by any the Rating Agency in compliance with Section 19 of this Agreement Agencies and providing each the Rating Agency Agencies with any information in its possession reasonably requested in connection with such the Rating Agency’s maintenance of its ratings Agencies’ monitoring of the Notes and their assigning credit indicators to prospective Collateral Interests;
(h) subject to a Servicer Override advancing (from funds received from the Preferred Shareholders for such purpose), if applicableon behalf of the Issuer, and estimating the ratings that such Rating Agency would assign any Cure Advance to prospective Collateral Interests, as permitted or required under cure an Event of Default pursuant to Section 12.6 of the Indenture;
(gi) subject to a Servicer Override determining whether specific a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 12.6 of the Indenture;
(j) on or prior to any day which is a Redemption Date for the Notes, directing the Trustee to dispose of the Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold Indenture and directing otherwise comply with all redemption procedures and certification requirements in the Special Servicer or Indenture in order to allow the Trustee, as applicable, Trustee to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafterRedemption;
(h) (ik) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant basis to the Indenture and (iv) extent necessary to fulfill its duties under this Agreement and, upon request, providing or causing to be provided to the Issuer and/or or the other parties specified in the Indenture all reports, schedules and certificates that relate Trustee information with respect to the Collateral Interests and that in its possession as may be required to enable the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing Agreement, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing information specifically requested by the Note Administrator in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator Trustee to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such reports required reports and schedules and to deliver them to the parties entitled thereto under the Indenture
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements Section 10.4 of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible selecting Eligible Investments for purchase by the Issuer, as applicable, either be impractical or not beneficial to the Holders of the Securities;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and Trustee in accordance with the Indenture and this Agreement, participating in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell committees (official or otherwise dispose otherwise) or other groups formed by creditors of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation an issuer of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTCan Underlying CMBS Series; and
(tm) in accordance complying with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder other duties and responsibilities of the Collateral Interests, including taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) and Eligible Investments, and (ii) to execute and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering expressly assigned to the Collateral Manager or such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such requestunder the Indenture. In performing its duties hereunderaddition, during the Reinvestment Period the Collateral Manager shall endeavorshall, subject to the provisions of this Agreement conditions and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to manage sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral in a manner that will (i) permit a timely performance Manager shall not have any obligation whatsoever for the making of all payment obligations any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Issuer Preferred Shareholders and any such obligation to make Interest Advances shall be the exclusive responsibility of CBRE Realty Finance, Inc., and any successor thereto as Advancing Agent under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the SecuritiesIndenture. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform shall, in rendering its obligations hereunder and under the Indenture and the Servicing Agreement services in accordance with reasonable care and in good faiththis Agreement, using use a degree of skill and attention no less than that which it (i) the Collateral Manager exercises with respect to comparable assets that it manages for itself and (ii) exercises for others in accordance with respect applicable law, the specific laws of the Underlying Instruments relating to comparable assets that it manages for othersthe Collateral Interests, and in a manner consistent with the its existing practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral Interests, except as expressly provided otherwise in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”)Indenture. In addition, the The Collateral Manager shall use follow its best efforts to ensure that (i) inquiries are madecustomary standards, to policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the extent practicable, nature and to the extent character of the Collateral Manager believes necessary Interests in performing its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreementduties hereunder. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager it under the Servicing Agreement and the Indenture in accordance with the Collateral Management Standardthis Agreement. The Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in the Indenture. The Collateral Manager shall have the right to obtain any information relating to the Collateral Interests directly from the applicable lender, borrower or issuer and is hereby authorized to take all reasonable actions necessary to accomplish the foregoing. The Collateral Manager agrees and consents to the provisions contained in Section 15.1(f) of the Indenture. Any purchase or sale of any Collateral Interest or Eligible Investment shall be conducted in accordance with the provisions of the Indenture and shall be on arm’s-length terms. The Collateral Manager shall render its services hereunder without regard to:
(a) the potential conflicts set forth in Section 9 hereof including any relationship that the Collateral Manager or any Affiliate of the Collateral Manager may have with any borrower of any mortgage loans underlying the Collateral Interests, any other parties to this Agreement or the Indenture or any of their respective Affiliates, including any lending relationship with or equity interest in such borrower;
(b) the Collateral Manager’s obligation to incur expenses with respect to its obligations hereunder or under the Indenture;
(c) the Collateral Manager’s right to receive compensation for its services hereunder or with respect to any particular transaction;
(d) the ownership or servicing or management for others, by the Collateral Manager, or any of its Affiliates of any other assets of similar nature to the Collateral Interests;
(e) any repurchase or indemnity obligation on the part of a Seller;
(f) the Person that originated any Collateral Interests or Commercial Mortgage Loans underlying such Collateral Interests;
(g) the repayment of any Cure Advances made by it or any affiliate thereof; or
(h) ownership by it or any affiliate thereof of any loans made to an obligor of a Collateral Interest or its affiliate or any preferred equity in such obligor. The Collateral Manager shall comply with all the terms and conditions of the Indenture affecting the duties and functions that have been delegated to it thereunder and hereunder. However, the Collateral Manager shall not be bound to follow any amendment, supplement or modification amendment to the Indenture of which until it has received written notice at least 10 Business Days prior to thereof and until it has received a copy of the execution and delivery thereof by amendment from the parties theretoIssuer or the Trustee; provided, however, that with respect to any amendment, supplement, modification or waiver amendment to the Indenture which may affect affects the rights, obligations or compensation of the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given its written consent shall have expressly consented thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indenturewriting.
Appears in 2 contracts
Sources: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests (including Subsequent Delayed Acquisition Collateral Interests, Exchange Collateral Interests and Reinvestment Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, Investments and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Reinvestment Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Asset Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Asset Documents, and participating in the committees or other groups formed by creditors of an obligor issuer of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager reasonably determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, Interests and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold (or exchanged) pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition (or exchange) of any such Collateral Interests, subject to, and in accordance with the Indenture; , and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter; provided that the Collateral Manager shall provide notice to the Rating Agencies upon a determination that a specific Collateral Interest is a Credit Risk Collateral Interest, which notice shall include the basis for such determination;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR Debt Yield and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 10.11 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Acquisition Criteria, the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements Test and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect enter into Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, Administrator and the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Reinvestment Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesNotes;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Collateral Interests and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities Notes eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities Notes remain outstanding, making available, upon request, to any Holder or prospective purchaser of such SecuritiesNotes, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(ts) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Delayed Acquisition Collateral Interests and Reinvestment Collateral Interests) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or reasonably necessary, appropriate and customary to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavoruse commercially reasonable efforts, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that it reasonably expects will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the SecuritiesNotes. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral Interests, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Asset Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement Indenture (including those duties and functions described in Section 2.16 of the Indenture in accordance with the Collateral Management StandardIndenture). The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay any of the Notes remain are Outstanding, the Collateral Manager shall perform provide prompt notice to the obligations Issuer, the Advancing Agent, the Servicer, the Special Servicer, the Trustee, the Note Administrator, the Calculation Agent (if different from the Note Administrator), the Noteholders and the Rating Agencies of its determination that a Benchmark Transition Event has occurred, and prior to any Benchmark Replacement Date, the Collateral Manager shall provide prompt notice to the Issuer, the Advancing Agent, the Servicer, the Special Servicer, the Trustee, the Note Administrator, the Calculation Agent (if different from the Note Administrator), the Noteholders and the Rating Agencies of the applicable Benchmark Agent under the IndentureReplacement.
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the The Collateral Manager hereby accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests Mortgage Assets (including Subsequent Collateral InterestsRamp-Up Mortgage Assets and Reinvestment Mortgage Assets) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Mortgage Assets and Eligible Investments, effecting or directing the sale of Collateral Interests Mortgage Assets and Eligible Investments, Investments and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral InterestsReinvestment Mortgage Assets and directing the use of amounts in the Unused Proceeds Account to acquire Ramp-Up Mortgage Assets, in each case, case as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors issuers of Collateral Interests Mortgage Assets as to proposed modifications or waivers of the Loan Documentsdocumentation governing such Mortgage Assets;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor issuer of a Collateral Interest Mortgage Asset or the consensual or non-judicial restructuring of the debt or equity of of
6 1 an obligor issuer of a Collateral InterestMortgage Asset) or remedies in connection with Collateral Interests Mortgage Assets and Eligible Investments, as provided in the related Loan Asset Documents, and participating in the committees or other groups formed by creditors of an obligor issuer of any Collateral InterestMortgage Asset, or taking any other action with respect to Collateral Interests Mortgage Assets and Eligible Investments which the Collateral Manager reasonably determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsMortgage Assets, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral InterestsMortgage Assets, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Mortgage Assets (or, for Participations, the related Participated Mortgage Loans) are Credit Risk Collateral Interests Mortgage Loans or Defaulted Collateral Interests, Mortgage Loans and determining whether such Collateral InterestsMortgage Assets, and any other Collateral Interests Mortgage Assets that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsMortgage Assets, subject to, and in accordance with the Indenture; and if a Collateral Interest Mortgage Asset that is a Defaulted Collateral Interest Mortgage Asset is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest Mortgage Asset becoming a Defaulted Collateral InterestMortgage Asset, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest Mortgage Asset as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Mortgage Assets on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR basis and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests Mortgage Assets and that the Issuer is required to prepare and deliver under the Indenture, which that are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 10.11 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Acquisition Criteria, the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements Test and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests Mortgage Assets or Eligible Investments, which may include directing the Special Servicer to effect enter into Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);; USActive 56230836.6 2
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest Mortgage Asset (or, for a Participation, the related Participated Mortgage Loan) has become a Defaulted Collateral Interest Mortgage Loan or a Credit Risk Collateral Interest Mortgage Loan or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, Administrator and the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsMortgage Assets, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests Reinvestment Mortgage Assets would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Mortgage Assets and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable written request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as USActive 56230836.6 3 holder of the Collateral InterestsMortgage Assets, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests Mortgage Assets (including Subsequent Collateral InterestsRamp-Up Mortgage Assets and Reinvestment Mortgage Assets) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or reasonably necessary, appropriate and customary to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest Mortgage Asset or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavoruse commercially reasonable efforts, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that it reasonably expects will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the SecuritiesPreferred Shares. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsCollateral, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest Mortgage Asset under any Loan Asset Document and (ii) commitments to purchase Collateral Interests Mortgage Assets and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement Indenture (including those duties and functions described in Section 2.16 and Section 5.5(a)(iii) of the Indenture in accordance with the Collateral Management StandardIndenture). The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indenture.bound
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests (including Delayed Close Collateral Interests and Subsequent Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications of, or waivers of relating to, the Loan DocumentsDocuments and directing the Special Servicer to process and effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(e) taking action, or advising the ServicerIssuer, the Special Servicer, the Trustee Servicer and the Note Administrator Special Servicer with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold (or exchanged) pursuant to the Indenture, should be sold (or exchanged), and directing the Special Servicer or of the Trustee, as applicable, to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR Debt Yield and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing Agreement, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Statement providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Delayed Close Collateral Interests and Subsequent Collateral Interests would, at any time any such Delayed Close Collateral Interests or Subsequent Collateral Interest is eligible for purchase by the Issuer, as applicable, either be impractical or not beneficial to the Holders of the SecuritiesNotes;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Collateral Interests and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities Notes eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities Notes remain outstanding, making available, upon request, to any Holder or prospective purchaser of such SecuritiesNotes, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and;
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents for the benefit of the Issuer; and (u) acting as Designated Transaction Representative pursuant to and in accordance with the Indenture and appointing any successor Designated Transaction Representative as contemplated thereby. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including any Delayed Close Collateral Interests and Subsequent Collateral Interests) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (tu) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney (the “POA”) is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request; provided, further, however, that (i) any exercise by the Collateral Manager of the POA shall be entirely subject to the criteria, conditions and limitations specified in this Agreement, the Indenture and the other Transaction Documents, and (ii) notwithstanding the foregoing, the Issuer, acting (in each case) with the approval of two or more of its Managers, by written notice to the Collateral Manager, may require that the Collateral Manager not exercise the POA, for any single transaction or series of transactions, from time to time or by standing instructions, and that the Issuer may itself execute such actions through duly authorized action by one or more of its Managers, and in each such circumstance the POA shall be of no force or effect whatsoever. Notwithstanding anything herein or in any other Transaction Document to the contrary, the Collateral Manager shall have no authority to hold (directly or indirectly), or otherwise obtain possession of, any funds or securities of the Issuer (including Collateral Interests or Eligible Investments). The Collateral Manager agrees that any requests or instructions regarding the disbursement of any funds in any Account must be made in accordance with the Indenture or other Transaction Document and must be sent to the Trustee. Without limiting the foregoing, the Collateral Manager shall have no authority to (i) sign checks on the Issuer’s behalf, (ii) deduct fees from any Account, (iii) withdraw funds or securities from any Account, or (iv) dispose of funds in any Account for any purpose, in each case other than pursuant to transactions authorized or permitted by the Indenture or other Transaction Document. Nothing in this paragraph shall prohibit the Collateral Manager from issuing instructions to the Trustee or Securities Intermediary to effect or to settle any bills of sale, assignments, agreements and other instruments in connection with any acquisition, investment instruction, sale or other disposition of any Collateral of the Issuer as permitted by the Indenture or other Transaction Document. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the SecuritiesNotes. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsCollateral, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Indenture and the Servicing Agreement and the Indenture in accordance with the Collateral Management Standard. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indenture.th
Appears in 1 contract
Sources: Collateral Management Agreement (Invesco Commercial Real Estate Finance Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Mortgage Loan Management Standard):
(a) determining specific Collateral Interests (including Subsequent Collateral Interests) Mortgage Loans, Additional Mortgage Loans and Reinvestment Mortgage Loans to be purchased or otherwise acquired and the timing of such purchases or acquisitionspurchases, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Mortgage Loans, Additional Mortgage Loans during the Ramp-Up Period and Eligible Investments, effecting or directing the sale of Collateral Interests Mortgage Loans and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral InterestsReinvestment Mortgage Loans, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors issuers of Collateral Interests Mortgage Loans as to proposed modifications or waivers of the Loan Documentsdocumentation governing such Mortgage Loans;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor issuer of a Collateral Interest Mortgage Loan or the consensual or non-judicial restructuring of the debt or equity of an obligor issuer of a Collateral InterestMortgage Loan) or remedies in connection with Collateral Interests Mortgage Loans and Eligible Investments, as provided in the related Loan Documents, and participating in the committees or other groups formed by creditors of an obligor issuer of any Collateral InterestMortgage Loan, or taking any other action with respect to Collateral Interests Mortgage Loans and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Mortgage Loan Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each the Rating Agency with any information reasonably requested in connection with such the Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsMortgage Loans, if applicable, and estimating the ratings that such the Rating Agency would assign to prospective Collateral InterestsMortgage Loans, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Mortgage Loans are Credit Risk Collateral Interests Mortgage Loans or Defaulted Collateral Interests, Mortgage Loans and determining whether such Collateral InterestsMortgage Loans, and any other Collateral Interests Mortgage Loans that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or on behalf of the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsMortgage Loans, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest Mortgage Loan in accordance with the Indenture, (iii) determining the market value of any Collateral Interest Mortgage Loan in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that which relate to the Collateral Interests and that which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator Trustee on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and providing the Redemption Date Statement, providing information specifically requested by to the Note Administrator Trustee as specified in accordance with Section 10.9 10.10 of the Indenture in sufficient time for the Note Administrator Trustee to prepare the Monthly Report and the Redemption Date StatementReport) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Coverage Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements Reinvestment Criteria and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Mortgage Loan Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests Mortgage Loans or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Trustee and the Issuer upon receiving actual notice that a Collateral Interest Mortgage Loan is subject to an Offer, has become a Defaulted Collateral Interest Mortgage Loan or a Credit Risk Collateral Interest Mortgage Loan or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agency and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsMortgage Loans, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests replacement Mortgage Loans would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders Holder of the SecuritiesPreferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Mortgage Loans and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;.
(s) upon reasonable request, assisting the Trustee, the Note Administrator Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Mortgage Loan Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral InterestsMortgage Loans, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) Mortgage Loans and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest Mortgage Loan or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture Indenture, (ii) be in accordance with the terms under which investors in the Parent REIT made their investments and (iiiii) subject to such objectiveobjectives, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsCollateral, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Mortgage Loan Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest Mortgage Loan under any Loan Document and (ii) commitments to purchase Collateral Interests Mortgage Loans and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management StandardIndenture. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay any of the Notes remain are Outstanding, with respect to any Mortgage Loan that by its terms permits the conversion from a LIBOR-based interest rate to a fixed interest rate, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indenturenot consent or agree to convert such Mortgage Loan from a LIBOR-based interest rate to a fixed interest rate.
Appears in 1 contract
Sources: Collateral Management Agreement (LoanCore Realty Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests (including Subsequent Reinvestment Collateral Interests and Exchange Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, Investments and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Reinvestment Collateral Interests, in each case, Interests as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Asset Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial non‑judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in 28547457.3 connection with Collateral Interests and Eligible Investments, as provided in the related Loan Asset Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold sold; and, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the Trustee and the Special Servicer or the Trustee, as applicable, to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and and, if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized As‑Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Statement providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Reinvestment Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the Securities;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Clean‑up Call in accordance with the Indenture;
(n) monitoring the ratings of the Collateral Interests and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), in all material respects, with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the 28547457.3 Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-factattorney‑in‑fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Reinvestment Collateral Interests and Exchange Collateral Interests) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it 28547457.3
(i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral Interests, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Asset Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement Indenture and the Indenture in accordance with the Collateral Management StandardServicing Agreement. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay any of the Notes remain Outstanding, the Collateral Manager shall perform (i) provide written notice to the obligations Trustee, the Note Administrator and the Servicer promptly after the Collateral Manager has determined that a Benchmark Transition Event has occurred and provide notice to the Issuer, the Co-Issuer, the Trustee, the Advancing Agent, the Note Administrator, the Calculation Agent (if different from the Note Administrator), the Servicer, the Special Servicer, the Collateral Manager and the 17g-5 Information Provider of the Benchmark Agent Replacement and the Benchmark Replacement Date (each as defined in the Indenture), (ii) provide written notice of any Benchmark Replacement Conforming Changes and (iii) direct the parties to the Indenture to enter into a supplemental indenture in connection with any Benchmark Transition Event, in each case pursuant to the terms of Section 2.16 of the Indenture. Furthermore, so long as any of the Notes are Outstanding, the Collateral Manager shall (i) determine whether a Benchmark Transition Event is also a trigger event under the Indenture.Asset Documents for any Collateral Interest, (ii) notify the Servicer and the Special Servicer that a Loan-Level Benchmark Transition Event (as defined in the Servicing Agreement) has occurred with regard to each Collateral Interest with respect to which such determination is made, and (iii) if not in violation of the terms of the applicable Asset Documents, with respect to all such Collateral Interests, designate the Benchmark Replacement as the Loan-Level Benchmark Replacement (as defined in the Servicing Agreement). 28547457.3
Appears in 1 contract
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests (including Subsequent Reinvestment Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitionspurchases, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Reinvestment Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Asset Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial non‑judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Asset Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, servicer and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold sold; and, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and, solely with respect to any Credit Risk Collateral Interest, providing notice of such determination (including information relating to the basis for such determination) to DBRS so long as DBRS is one of the Rating Agencies, and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized As‑Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Statement providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Reinvestment Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Reinvestment Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Clean‑up Call in accordance with the Indenture;
(n) monitoring the ratings of the Collateral Interests and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-factattorney‑in‑fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Reinvestment Collateral Interests) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral Interests, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Asset Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement Indenture and the Indenture in accordance with the Collateral Management StandardServicing Agreement. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay any of the Notes remain are Outstanding, the Collateral Manager shall perform (i) determine whether a Benchmark Transition Event is also a trigger event under the obligations Asset Documents for any Collateral Interest, (ii) notify the Servicer and the Special Servicer that a Loan-Level Benchmark Transition Event has occurred with regard to each Collateral Interest with respect to which such determination is made, and (iii) if not in violation of the terms of the applicable Asset Documents, with respect to all such Collateral Interests, designate the Benchmark Agent under Replacement as the IndentureLoan-Level Benchmark Replacement.
Appears in 1 contract
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests (including Subsequent Ramp-Up Collateral Interests and Reinvestment Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitionspurchases, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Reinvestment Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Collateral Manager, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager▇▇▇▇▇ Fargo Bank, Situs Asset Management LLCNational Association, as servicer, and Situs HoldingsTrimont Real Estate Advisors, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold sold; and, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and, solely with respect to any Credit Risk Collateral Interest, providing notice of such determination (including information relating to the basis for such determination) to KBRA so long as KBRA is one of the Rating Agencies, and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Underwritten Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Statement providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Reinvestment Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Collateral Interests and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) to the extent applicable, complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Reinvestment Collateral Interests) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsCollateral, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management StandardIndenture. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay any of the Notes remain are Outstanding, with respect to any Collateral Interest that, with the consent of the lender, permits the conversion from a LIBOR-based interest rate to a fixed interest rate or a floating rate based on an alternative index, the Collateral Manager shall perform not consent or agree to convert such Collateral Interest from a LIBOR-based interest rate to a fixed interest rate or a floating rate based on an alternative index, as applicable; provided that the obligations Collateral Manager may consent or agree to convert such Collateral Interests from a LIBOR-based interest rate to a floating rate based on an alternative index in connection with the general acceptance in the financial markets of the Benchmark Agent under the Indenturean alternative base rate as a replacement benchmark to LIBOR.
Appears in 1 contract
Sources: Collateral Management Agreement (Granite Point Mortgage Trust Inc.)
Management Services. The Collateral Loan Obligation Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral Assets specified herein and in the Indenture. Accordingly, the Collateral Loan Obligation Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Loan Obligation Management Standard):
(a) determining specific Collateral Interests (including Subsequent Collateral Interests) Loan Obligations, Additional Loan Obligations and Replacement Loan Obligations to be purchased or otherwise acquired and the timing of such purchases or acquisitionspurchases, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Loan Obligations, any loan conditionally designated for purchase (each a “Targeted Additional Loan Obligation”), Additional Loan Obligations during the Post-Closing Acquisition Period and Eligible Investments, effecting or directing the sale of Collateral Interests Loan Obligations and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral InterestsReplacement Loan Obligations, in each case, as permitted by the Indenture. Orders for investment transactions In addition, in the event that the Loan Obligation Manager determines that a Targeted Additional Loan Obligation may not close during the Post-Closing Acquisition Period, or decides not to acquire such Loan Obligation, the Loan Obligation Manager on behalf of the Issuer may use such funds credited to the Unused Proceeds Account to be placed used to acquire such Loan Obligation to acquire Additional Loan Obligations during the Post-Closing Acquisition Period that satisfy the Eligibility Criteria as permitted by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principalsIndenture;
(d) negotiating with obligors issuers of Collateral Interests Loan Obligations as to proposed modifications or waivers of the documentation governing such Loan DocumentsObligations;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor issuer of a Collateral Interest Loan Obligation or the consensual or non-judicial restructuring of the debt or equity of an obligor issuer of a Collateral InterestLoan Obligation) or remedies in connection with Collateral Interests Loan Obligations and Eligible Investments, as provided in the related Loan DocumentsUnderlying Instruments, and participating in the committees or other groups formed by creditors of an obligor issuer of any Collateral InterestLoan Obligation, or taking any other action with respect to Collateral Interests Loan Obligations and Eligible Investments which the Collateral Loan Obligation Manager determines, in accordance with the Collateral Loan Obligation Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsLoan Obligations, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral InterestsLoan Obligations, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Loan Obligations are Credit Risk Collateral Interests Obligations or Defaulted Collateral Interests, Obligations and determining whether such Collateral InterestsLoan Obligations, and any other Collateral Interests Loan Obligations that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsLoan Obligations, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Assets on an ongoing basis, (ii) determining the U/W As-Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest Loan Obligation in accordance with the Indenture, (iii) determining the market value of any Collateral Interest Obligation in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that which relate to the Collateral Interests Assets and that which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator Trustee on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Notes Valuation Reports providing the information specifically requested by to the Note Administrator Trustee as specified in accordance with Section 10.9 10.10 of the Indenture in sufficient time for the Note Administrator Trustee to prepare the Monthly Report and the Redemption Date StatementNote Valuation Report) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements Replacement Criteria and the other requirements of the Indenture and taking action that the Collateral Loan Obligation Manager deems appropriate and consistent with the Indenture, the Collateral Loan Obligation Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral Assets that does not constitute Collateral Interests Loan Obligations or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Trustee and the Issuer upon receiving actual notice that a Collateral Interest Loan Obligation is subject to an Offer, has become a Defaulted Collateral Interest Obligation or a Credit Risk Collateral Interest Obligation or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsLoan Obligations, general market conditions and other factors considered pertinent by the Collateral Loan Obligation Manager, investments in Subsequent Collateral Interests replacement Loan Obligations would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReplacement Period, either be impractical or not beneficial to the Holders Holder of the SecuritiesPreferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Loan Obligations and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Loan Obligation Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral Assets if such information is reasonably available to the Collateral Loan Obligation Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Loan Obligation Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Loan Obligation Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Loan Obligation Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral InterestsLoan Obligations, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents Underlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Loan Obligation Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Loan Obligation Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) Loan Obligations and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Loan Obligation Manager or a purchaser of a Collateral Interest Loan Obligation or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Loan Obligation Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Loan Obligation Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral Assets in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Loan Obligation Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Loan Obligation Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsAssets, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Loan Obligation Management Standard”). In addition, the Collateral Loan Obligation Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest Loan Obligation under any Loan Document Underlying Instrument and (ii) commitments to purchase Collateral Interests Loan Obligations and Eligible Investments are made by the Collateral Loan Obligation Manager only if, in the Collateral Loan Obligation Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Loan Obligation Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Loan Obligation Manager under the Servicing Agreement Indenture (including those duties and functions described in Section 5.5(a)(iii) of the Indenture in accordance with the Collateral Management StandardIndenture). The Collateral Loan Obligation Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Loan Obligation Manager, the Collateral Loan Obligation Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Loan Obligation Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Loan Obligation Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral Assets pursuant to the Indenture. So long as ay any of the Notes remain are Outstanding, with respect to any Loan Obligation that by its terms permits the Collateral conversion from a LIBOR-based interest rate to a fixed interest rate, the Loan Obligation Manager shall perform the obligations of the Benchmark Agent under the Indenturenot consent or agree to convert such Loan Obligation from a LIBOR-based interest rate to a fixed interest rate.
Appears in 1 contract
Sources: Loan Obligation Management Agreement (Arbor Realty Trust Inc)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral Assets specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the CDO Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Manager Servicing Standard, as applicable, and without regard to any conflicts of interest):
(a) determining specific Collateral Interests (including Subsequent Collateral Interests) Debt Securities to be purchased or otherwise acquired Collateral Debt Securities to be sold and the timing of such purchases or acquisitionsand sales, in each case, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Interests Debt Securities and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Intereststherefrom, in each case, case as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors the issuers of Collateral Interests Debt Securities as to proposed modifications or waivers of the Loan Documentsdocumentation governing such Collateral Debt Securities as permitted under the Indenture;
(e) subject to the applicable provisions of the Asset Servicing Agreement, taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest issuer or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interestissuer) or remedies in connection with the Collateral Interests Debt Securities and Eligible Investments, as provided in the related Loan DocumentsUnderlying Instruments, including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interestissuer, or taking any other action with respect to Collateral Interests Debt Securities and Eligible Investments which the Collateral Manager determines, determines in accordance with the Collateral Management Standard (and subject to the applicable provisions reasonable exercise of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), ’s business judgment is in the best interests of all of the Noteholders in accordance with with, and as permitted by by, the terms of the Indenture, any servicing agreement and this Agreement;
(f) consulting with each the Rating Agency Agencies at such times as may be reasonably requested by any the Rating Agency in compliance with Section 19 of this Agreement Agencies and providing each the Rating Agency Agencies with any information reasonably requested in connection with such the Rating Agency’s Agencies’ maintenance of its their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Debt Securities are Credit Risk Collateral Interests Securities, Defaulted Securities, Written Down Securities or Defaulted Collateral Interests, Spread Appreciated Securities and determining whether such Collateral InterestsDebt Securities, and any other Collateral Interests Debt Securities that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsDebt Securities, subject to, and in accordance with the terms and conditions of the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Assets on an ongoing basis, basis and (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other applicable parties specified in the Indenture all reports, schedules and certificates that which relate to the Collateral Interests Assets and that which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator Trustee, on behalf of the Issuer Issuer, under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date StatementNotes Valuation Reports, providing the information specifically requested by to the Note Administrator Trustee as specified in accordance with Section 10.9 Sections 10.9(c) and 10.9(e) of the Indenture in sufficient time for the Note Administrator Trustee to prepare the Monthly Report and the Redemption Date StatementNotes Valuation Report) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments Collateral Debt Securities and Eligible Investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Coverage Tests, the Acquisition CriteriaCollateral Quality Tests, the Acquisition and Disposition Requirements Replenishment Criteria and the other requirements of the Indenture and this Agreement, and, subject to the Asset Servicing Agreement, taking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Manager Servicing Agreement Standard and the standard of care set forth herein with respect to any portion of the Collateral Assets that does not constitute Collateral Interests Debt Securities or Eligible Investments, which may include directing Investments as required or permitted by the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement)Indenture;
(j) monitoring all Hedge Agreements and determining whether and when the Issuer should exercise any rights available under any Hedge Agreement, and causing the Issuer to enter into additional or replacement Hedge Agreements or terminating (in part or in whole) existing Hedge Agreements, in each case, in accordance with the Indenture and the terms of such Hedge Agreements;
(k) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Trustee and the Issuer upon receiving actual notice that a Collateral Interest Debt Security is subject to an Offer or has become a Defaulted Collateral Interest Security, a Written Down Security or a Credit Risk Collateral Interest or has suffered an appraisal reductionSecurity;
(kl) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Trustee and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(lm) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsDebt Securities, general market conditions and other factors considered pertinent by the Collateral Manager, investments of Replenishment Proceeds in Subsequent additional Collateral Interests Debt Securities in the foreseeable future would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReplenishment Period, either be impractical or not beneficial to the Issuer and the Holders of the SecuritiesPreferred Shares;
(mn) if the Collateral Manager elects to amortize the Notes pursuant to and in accordance with Section 9.7 of the Indenture, providing notification, in writing, to the Trustee, the Issuer, the Co-Issuer, the Class A-2 Note Insurer and each Hedge Counterparty of (A) such election and (B) the amount of such proceeds that will be used to so amortize the Notes;
(o) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(np) on the Stated Maturity of the Notes, or in connection with any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call, liquidating any remaining Hedge Agreements in accordance with the terms thereof and the Indenture;
(q) monitoring the ratings of the Collateral Debt Securities and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(or) making such determinations, exercising such rights and assisting the Issuer in (i) taking such actions, on behalf any action in order to effect and/or maintain the listing of any of the IssuerNotes on the Irish Stock Exchange, (ii) obtaining any waiver from the Irish Stock Exchange or (iii) providing other information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of the Collateral Manager is authorized to do under by the Indenture, the Servicing Agreement Indenture or this Agreement;
(pt) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(qu) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral Assets if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(sv) upon reasonable request, assisting the Trustee, the Note Administrator Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; andDTC and Euroclear;
(tw) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Manager Servicing Agreement)Standard, enforcing the rights of the Issuer as holder of the Collateral InterestsDebt Securities, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents Underlying Instruments for the benefit of the Issuer;
(x) determining (for purposes of the Collateral Quality Tests) whether Underlying Mortgaged Properties located in the State of California are located in the “southern region” or the “northern region” of the State of California;
(y) designating Eligible Investments for sale at auction in connection with an Auction Call Redemption; and
(z) electing the applicable scenario to use in connection with the Moody’s Test Matrix, the S&P Test Matrix and the Fitch Test Matrix. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and convert otherwise trade Collateral Interests (including Subsequent Collateral Interests) Debt Securities and Eligible Investments, Investments and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (ty) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or Manager, a purchaser of a Collateral Interest Debt Security or Eligible InvestmentInvestment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager Manager, such purchaser or such purchaser Hedge Counterparty all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (ia) exercises with respect to comparable assets that it manages for itself and (iib) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsAssets, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”)Indenture. In addition, the Collateral Manager shall use its best commercially reasonable efforts to ensure that (i) inquiries are made, directions to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, Trustee with respect to the occurrence purchase of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best commercially reasonable judgment at the time of such commitmentdirection, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management StandardIndenture. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 ten (10) Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that that, with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will shall not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral Assets pursuant to the Indenture. So long as ay of Notwithstanding anything contained herein to the Notes remain Outstandingcontrary, (i) any cash advance the Collateral Manager makes with respect to cure payments and actions taken in connection therewith and (ii) any voting, consent, consultation or control rights exercised by the Collateral Manager with respect to a Collateral Debt Security that is a B Note, Participation or junior interest in a Mezzanine Loan, in each case, shall perform be subject to the obligations applicable provisions of the Benchmark Agent under the IndentureAsset Servicing Agreement.
Appears in 1 contract
Sources: Collateral Management Agreement (Gramercy Capital Corp)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral Assets specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the CDO Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Manager Servicing Standard, as applicable):
(a) determining specific Collateral Interests (including Subsequent Collateral Interests) Debt Securities to be purchased or otherwise acquired Collateral Debt Securities to be sold and the timing of such purchases or acquisitionsand sales, in each case, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Interests Debt Securities and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Intereststherefrom, in each case, case as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors the issuers of Collateral Interests Debt Securities as to proposed modifications or waivers of the Loan Documentsdocumentation governing such Collateral Debt Securities as permitted under the Indenture;
(e) subject to the applicable provisions of the Asset Servicing Agreement, taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest issuer or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interestissuer) or remedies in connection with the Collateral Interests Debt Securities and Eligible Investments, as provided in the related Loan DocumentsUnderlying Instruments including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interestissuer, or taking any other action with respect to Collateral Interests Debt Securities and Eligible Investments which the Collateral Manager determines, determines in accordance with the Collateral Management Standard (and subject to the applicable provisions reasonable exercise of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), ’s business judgment is in the best interests of all of the Noteholders in accordance with with, and as permitted by by, the terms of the Indenture;, any servicing agreement and this Agreement,
(f) consulting with each the Rating Agency Agencies at such times as may be reasonably requested by any the Rating Agency in compliance with Section 19 of this Agreement Agencies and providing each the Rating Agency Agencies with any information reasonably requested in connection with such the Rating Agency’s Agencies’ maintenance of its their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Debt Securities are Credit Risk Collateral Interests Securities Defaulted Securities or Defaulted Collateral Interests, Written Down Securities and determining whether such Collateral InterestsDebt Securities, and any other Collateral Interests Debt Securities that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsDebt Securities, subject to, and in accordance with the terms and conditions of the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Assets on an ongoing basis, basis and (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other applicable parties specified in the Indenture all reports, reports schedules and certificates that which relate to the Collateral Interests Assets and that which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator Trustee, on behalf of the Issuer Issuer, under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date StatementNotes Valuation Reports, providing the information specifically requested by to the Note Administrator Trustee as specified in accordance with Section 10.9 Sections 10.9(c) and 10.9(e) of the Indenture in sufficient time for the Note Administrator Trustee to prepare the Monthly Report and the Redemption Date StatementNotes Valuation Report) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments Collateral Debt Securities and Eligible Investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Coverage Tests, the Acquisition CriteriaCollateral Quality Tests, the Acquisition and Disposition Requirements Reinvestment Criteria and the other requirements of the Indenture and this Agreement, and, subject to the Asset Servicing Agreement, taking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Manager Servicing Agreement Standard and the standard of care set forth herein with respect to any portion of the Collateral Assets that does not constitute Collateral Interests Debt Securities or Eligible Investments, which may include directing Investments as required or permitted by the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement)Indenture;
(j) monitoring all Hedge Agreements and determining whether and when the Issuer should exercise any rights available under any Hedge Agreement, and causing the Issuer to enter into additional or replacement Hedge Agreements or terminating (in part or in whole) existing Hedge Agreements, in each case, in accordance with the Indenture and the terms of such Hedge Agreements;
(k) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Trustee and the Issuer upon receiving actual notice that a Collateral Interest Debt Security is subject to an Offer or has become a Defaulted Collateral Interest Security, a Written Down Security or a Credit Risk Collateral Interest or has suffered an appraisal reductionSecurity;
(kl) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Trustee and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(lm) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsDebt Securities, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent additional Collateral Interests Debt Securities would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(mn) if the Collateral Manager elects to amortize the Notes pursuant to and in accordance with Section 9.7 of the Indenture, providing notification, in writing, to the Trustee, the Issuer, the Co-Issuer and each Hedge Counterparty of (A) such election and (B) the amount of such proceeds that will be used to so amortize the Notes;
(o) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(np) on the Stated Maturity of the Notes, or in connection with any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call, liquidating any remaining Hedge Agreement with the terms thereof and the Indenture;
(q) monitoring the ratings of the Collateral Debt Securities and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(or) making such determinations, exercising such rights and assisting the Issuer in (i) taking such actions, on behalf any action in order to effect and/or maintain the listing of any of the IssuerNotes on the Irish Stock Exchange or (ii) obtaining any waiver from the Irish Stock Exchange, or (iii) providing other information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of the Collateral Manager is authorized to do under by the Indenture, the Servicing Agreement Indenture or this Agreement;
(pt) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(qu) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral Assets if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(sv) upon reasonable request, assisting the Trustee, the Note Administrator Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTCDTC and Euroclear; and
(tw) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Manager Servicing Agreement)Standard, enforcing the rights of the Issuer as holder of the Collateral InterestsDebt Securities, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents Underlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, Issuer in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and convert otherwise trade Collateral Interests (including Subsequent Collateral Interests) Debt Securities and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (tw) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or Manager, a purchaser of a Collateral Interest Debt Security or Eligible InvestmentInvestment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager Manager, such purchaser or such purchaser Hedge Counterparty all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (ia) exercises with respect to comparable assets that it manages for itself and (iib) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsAssets, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”)Indenture. In addition, the Collateral Manager shall use its best commercially reasonable efforts to ensure that (i) inquiries are made, directions to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, Trustee with respect to the occurrence purchase of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best commercially reasonable judgment at the time of such commitmentdirection, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management StandardIndenture. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 ten (10) Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that that, with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral Assets pursuant to the Indenture. So long as ay of Notwithstanding anything contained herein to the Notes remain Outstandingcontrary, (i) any cash advance the Collateral Manager makes with respect to cure payments and actions taken in connection therewith and (ii) any voting, consent, consultation or control rights exercised by the Collateral Manager with respect to a Collateral Debt Security that is a B Note, Participation or junior interest in a Mezzanine Loan, in each case, shall perform be subject to the obligations applicable provisions of the Benchmark Agent under the IndentureAsset Servicing Agreement.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Gramercy Capital Corp)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests (including Subsequent Reinvestment Collateral Interests and Exchange Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Reinvestment Collateral Interests and Exchange Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Collateral Manager, the Trustee, the Note Administrator, the Advancing Agent, the Collateral ManagerW▇▇▇▇ Fargo Bank, Situs Asset Management LLCNational Association, as servicer, and Situs HoldingsTrimont Real Estate Advisors, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold and sold; and, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, directing the Special Servicer or and the Trustee, as applicable, Trustee to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; Indenture and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Statement providing information specifically requested by the Note Administrator as specified in accordance with Section 10.9 10.8 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Reinvestment Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Collateral Interests and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) to the extent applicable, complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent including, without limitation, Reinvestment Collateral Interests and Exchange Collateral Interests) and Eligible Investments, and (ii) to execute and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture Servicing Agreement and the Servicing Agreement Indenture in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsCollateral, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best commercially reasonable efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management Standard. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long If the Collateral Manager determines that a Loan-Level Benchmark Transition Event (as ay of defined in the Notes remain OutstandingServicing Agreement) has occurred with respect to any Serviced Commercial Real Estate Loan (as defined in the Servicing Agreement), the Collateral Manager shall perform (i) designate the obligations Loan-Level Benchmark Replacement (as defined in the Servicing Agreement) in accordance with the related Loan Documents, (ii) determine, in its sole discretion, if any Loan-Level Benchmark Replacement Conforming Changes (as defined in the Servicing Agreement) are necessary, (iii) direct the Special Servicer to administratively process an Administrative Modification to effect any necessary Loan-Level Benchmark Replacement Conforming Changes and (iv) provide written notice of such Loan-Level Benchmark Transition Event (as defined in the Servicing Agreement) and the related Loan-Level Benchmark Agent under Replacement to the IndentureSpecial Servicer.
Appears in 1 contract
Sources: Collateral Management Agreement (Granite Point Mortgage Trust Inc.)
Management Services. The Collateral Investment Manager is hereby appointed as the Issuer’s exclusive agent to will provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer Company with the following services (in accordance with all and subject to the applicable requirements of of, and the Indenturerestrictions and limitations set forth in, the Servicing Swap Agreement and the Company’s limited liability company agreement (as defined below) and this the “LLC Agreement, including the Collateral Management Standard”)):
(a) determining selecting the specific Collateral Interests (including Subsequent Collateral Interests) Reference Obligations to be purchased or otherwise acquired and included in the timing portfolio of such purchases or acquisitions, as permitted by obligations subject to the IndentureSwap Agreement (the “Portfolio”);
(b) determining specific Eligible Investments with respect to be purchased any action submitted to a vote of the holders of the applicable Reference Obligations as to which the Investment Manager and/or the Company is opposed, to the extent Citibank holds such Reference Obligations, requesting on behalf of the Company that Citibank vote against such action (or sold and the timing of such purchases and sales, in each case, as permitted by the Indentureotherwise withhold its consent);
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the IssuerCitibank’s exercise (including but not limited to any waiver) of any rights (including, without limitation, including but not limited to voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an underlying obligor of a Collateral Interest any Reference Obligation (each, an “Underlying Obligor”) or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral InterestUnderlying Obligor) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Documents, any Reference Obligations held by Citibank and participating in the committees (official or otherwise) or other groups formed by creditors of an obligor of any Collateral InterestUnderlying Obligor, requesting or taking any other action with respect electing not to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions request on behalf of the Servicing Company that Citibank exercise such rights or remedies;
(d) from time to time on or after the termination of the Swap Agreement, dated as determining the specific debt obligations or other assets to be purchased or sold by the Company;
(e) from time to time on or after the termination of the date hereof (Swap Agreement, effecting the “Servicing Agreement”), by purchase and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests sale of all of the Noteholders in accordance with and as permitted debt obligations or other assets to be purchased or sold by the terms of the IndentureCompany;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its monitoring the ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the IndentureReference Obligations;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required each Loan to be sold pursuant to included in the Indenture, should be sold and directing Portfolio meets the Special Servicer or the Trustee, as applicable, to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafterObligation Criteria;
(h) determining whether the Portfolio of Reference Obligations meets the Portfolio Criteria;
(i) monitoring the Collateral Interests Reference Obligations on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing Agreement, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing information specifically requested by the Note Administrator in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, causing the Company to deliver Eligible Collateral to Citibank in writing, to such amounts and at such times as may be required by the Trustee, the Note Administrator, the Servicer, the Special Servicer and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reductionSwap Agreement;
(k) providing notification, in writing, determining whether to the Trustee, the Note Administrator, the Holders terminate one or all of the Notes, the Rating Agencies, the Servicer, the Special Servicer and the Issuer upon becoming actually aware of a Default or an Event of Default under the IndentureTransactions;
(l) determining (in its sole discretion but subject to the Indenture notifying Citibank and the Collateral Management StandardCompany in writing of an Event of Default or Termination Event under the Swap Agreement within one (1) whether, in light Business Day after the Investment Manager has actual knowledge of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by the Issuer, as applicable, either be impractical or not beneficial to the Holders of the Securitiesoccurrence thereof;
(m) taking reasonable action on behalf arranging for the sale of any Reference Obligations held by Citibank to the extent provided by Clause 4(A) of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with Confirmation constituting part of the IndentureSwap Agreement;
(n) monitoring the Issuer’s compliance with the covenants delivering notices and instructions to Citibank as required by the Issuer in the Indenture;Swap Agreement; and
(o) making directing the Company to comply with such determinations, exercising such rights other duties and taking such actions, on behalf responsibilities as may be expressly required of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished Company by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Swap Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents . The Company agrees for the benefit of the Issuer. In furtherance Investment Manager and Citibank to follow the lawful instructions and directions of the foregoing, the Issuer hereby appoints the Collateral Investment Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Investment Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) and Eligible Investments, and (ii) to execute and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreementhereunder. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Investment Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with use reasonable care and in good faithrendering its services hereunder, using a degree of skill and attention no less than that which it (i) the Investment Manager exercises with respect to comparable assets that it manages for itself and (ii) exercises for others in accordance with respect to comparable assets that it manages for others, and in a manner consistent with the its existing practices and procedures then in effect which the Investment Manager reasonably believes to be consistent with those followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsReference Obligations, except as expressly provided otherwise in this Agreement or in the Indenture and without regard Swap Agreement. Subject to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In additionimmediately preceding sentence, the Collateral Investment Manager shall use follow its best efforts to ensure that (i) inquiries are madecustomary standards, to the extent practicablepolicies, and to procedures in performing its duties hereunder and under the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Swap Agreement. The Collateral Investment Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager it under the Servicing this Agreement and the Indenture in accordance with the Collateral Management StandardSwap Agreement. The Collateral Investment Manager shall not be bound to follow any amendment, supplement or modification amendment to the Indenture of which Swap Agreement, however, until it has received written notice at least 10 Business Days prior to a copy of the execution and delivery thereof by amendment from the parties thereto; providedCompany or Citibank and, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Managerin addition, the Collateral Investment Manager shall not be bound thereby (and by any amendment to the Issuer Swap Agreement which adversely affects in any material respects the obligations of the Investment Manager unless the Investment Manager shall have consented thereto in writing. The Company agrees that it will not permit any such amendment, supplement, modification amendment to the Swap Agreement that adversely affects the duties or waiver liabilities of the Investment Manager to become effective) effective unless the Collateral Investment Manager has been given prior written notice thereof of such amendment and has given its written consent consented thereto (which consent in writing. To the extent necessary or appropriate to perform all of the duties to be performed by it hereunder, the Investment Manager shall not be unreasonably withheld) have the power to negotiate, execute and deliver all necessary documents and instruments on behalf of the Company with respect to the Trustee rights and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent Company under the IndentureSwap Agreement. The Investment Manager shall have no obligation to perform any duties other than those specified herein or in the Swap Agreement.
Appears in 1 contract
Sources: Investment Management Agreement (FS Investment CORP)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral Assets specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the CDO Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Manager Servicing Standard, as applicable):
(a) determining specific Collateral Interests (including Subsequent Collateral Interests) Debt Securities to be purchased or otherwise acquired Collateral Debt Securities to be sold and the timing of such purchases or acquisitionsand sales, in each case, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Interests Debt Securities and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Intereststherefrom, in each case, case as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors the issuers of Collateral Interests Debt Securities as to proposed modifications or waivers of the Loan Documentsdocumentation governing such Collateral Debt Securities as permitted under the Indenture;
(e) subject to the applicable provisions of the Asset Servicing Agreement, taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest issuer or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interestissuer) or remedies in connection with the Collateral Interests Debt Securities and Eligible Investments, as provided in the related Loan DocumentsUnderlying Instruments, including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interestissuer, or taking any other action with respect to Collateral Interests Debt Securities and Eligible Investments which the Collateral Manager determines, determines in accordance with the Collateral Management Standard (and subject to the applicable provisions reasonable exercise of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), ’s business judgment is in the best interests of all of the Noteholders in accordance with with, and as permitted by by, the terms of the Indenture, any servicing agreement and this Agreement;
(f) consulting with each the Rating Agency Agencies at such times as may be reasonably requested by any the Rating Agency in compliance with Section 19 of this Agreement Agencies and providing each the Rating Agency Agencies with any information reasonably requested in connection with such the Rating Agency’s Agencies’ maintenance of its their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Debt Securities are Credit Risk Collateral Interests Securities, Defaulted Securities or Defaulted Collateral Interests, Written Down Securities and determining whether such Collateral InterestsDebt Securities, and any other Collateral Interests Debt Securities that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsDebt Securities, subject to, and in accordance with the terms and conditions of the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Assets on an ongoing basis, basis and (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other applicable parties specified in the Indenture all reports, schedules and certificates that which relate to the Collateral Interests Assets and that which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator Trustee, on behalf of the Issuer Issuer, under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date StatementNotes Valuation Reports, providing the information specifically requested by to the Note Administrator Trustee as specified in accordance with Section 10.9 Sections 10.9(c) and 10.9(e) of the Indenture in sufficient time for the Note Administrator Trustee to prepare the Monthly Report and the Redemption Date StatementNotes Valuation Report) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments Collateral Debt Securities and Eligible Investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Coverage Tests, the Acquisition CriteriaCollateral Quality Tests, the Acquisition and Disposition Requirements Reinvestment Criteria and the other requirements of the Indenture and this Agreement, and, subject to the Asset Servicing Agreement, taking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Manager Servicing Agreement Standard and the standard of care set forth herein with respect to any portion of the Collateral Assets that does not constitute Collateral Interests Debt Securities or Eligible Investments, which may include directing Investments as required or permitted by the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement)Indenture;
(j) monitoring all Hedge Agreements and determining whether and when the Issuer should exercise any rights available under any Hedge Agreement, and causing the Issuer to enter into additional or replacement Hedge Agreements or terminating (in part or in whole) existing Hedge Agreements, in each case, in accordance with the Indenture and the terms of such Hedge Agreements;
(k) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Trustee and the Issuer upon receiving actual notice that a Collateral Interest Debt Security is subject to an Offer or has become a Defaulted Collateral Interest Security, a Written Down Security or a Credit Risk Collateral Interest or has suffered an appraisal reductionSecurity;
(kl) providing notificationnotification promptly, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Trustee and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(lm) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsDebt Securities, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent additional Collateral Interests Debt Securities would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(mn) if the Collateral Manager elects to amortize the Notes pursuant to and in accordance with Section 9.7 of the Indenture, providing notification, in writing, to the Trustee, the Issuer, the Co-Issuer and each Hedge Counterparty of (A) such election and (B) the amount of such proceeds that will be used to so amortize the Notes;
(o) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(np) on the Stated Maturity of the Notes, or in connection with any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call, liquidating any remaining Hedge Agreements in accordance with the terms thereof and the Indenture;
(q) monitoring the ratings of the Collateral Debt Securities and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(or) making such determinations, exercising such rights and assisting the Issuer in (i) taking such actions, on behalf any action in order to effect and/or maintain the listing of any of the IssuerNotes on the Irish Stock Exchange or (ii) obtaining any waiver from the Irish Stock Exchange, or (iii) providing other information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of the Collateral Manager is authorized to do under by the Indenture, the Servicing Agreement Indenture or this Agreement;
(pt) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(qu) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral Assets if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(sv) upon reasonable request, assisting the Trustee, the Note Administrator Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTCDTC and Euroclear; and
(tw) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Manager Servicing Agreement)Standard, enforcing the rights of the Issuer as holder of the Collateral InterestsDebt Securities, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents Underlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and convert otherwise trade Collateral Interests (including Subsequent Collateral Interests) Debt Securities and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (tw) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or Manager, a purchaser of a Collateral Interest Debt Security or Eligible InvestmentInvestment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager Manager, such purchaser or such purchaser Hedge Counterparty all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (ia) exercises with respect to comparable assets that it manages for itself and (iib) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsAssets, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”)Indenture. In addition, the Collateral Manager shall use its best commercially reasonable efforts to ensure that (i) inquiries are made, directions to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, Trustee with respect to the occurrence purchase of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best commercially reasonable judgment at the time of such commitmentdirection, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management StandardIndenture. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 ten (10) Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that that, with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral Assets pursuant to the Indenture. So long as ay of Notwithstanding anything contained herein to the Notes remain Outstandingcontrary, (i) any cash advance the Collateral Manager makes with respect to cure payments and actions taken in connection therewith and (ii) any voting, consent, consultation or control rights exercised by the Collateral Manager with respect to a Collateral Debt Security that is a B Note, Participation or junior interest in a Mezzanine Loan, in each case, shall perform be subject to the obligations applicable provisions of the Benchmark Agent under the IndentureAsset Servicing Agreement.
Appears in 1 contract
Sources: Collateral Management Agreement (Gramercy Capital Corp)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests (including Subsequent Ramp-Up Collateral Interests, Reinvestment Collateral Interests and Exchange Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, effecting or directing the application of amounts on deposit in the Unused Proceeds Account to acquire Ramp-Up Collateral Interests, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Reinvestment Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Asset Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Asset Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold sold; and, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and and, solely with respect to any Credit Risk Collateral Interest, providing notice of such determination (including information relating to the basis for such determination) to KBRA so long as KBRA is one of the Rating Agencies; and, if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Statement providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Ramp-Up Collateral Interests and Reinvestment Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the IssuerRamp-Up Acquisition Period and Reinvestment Period, as applicable, either be impractical or not beneficial to the Holders of the Securities;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Collateral Interests and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), in all material respects, with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Ramp-Up Collateral Interests, Reinvestment Collateral Interests and Exchange Collateral Interests) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral Interests, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Asset Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement Indenture and the Indenture in accordance with the Collateral Management StandardServicing Agreement. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay any of the Notes remain Outstanding, the Collateral Manager shall perform (i) provide written notice to the obligations Trustee, the Note Administrator and the Servicer promptly after the Collateral Manager, acting as Designated Transaction Representative, has determined that a Benchmark Transition Event has occurred and provide notice to the Issuer, the Co-Issuer, the Trustee, the Advancing Agent, the Note Administrator, the Calculation Agent (if different from the Note Administrator), the Servicer, the Special Servicer, the Collateral Manager and the 17g-5 Information Provider of the Benchmark Agent Replacement and the Benchmark Replacement Date (each as defined in the Indenture), (ii) provide written notice of any Benchmark Replacement Conforming Changes and (iii) direct the parties to the Indenture to enter into a supplemental indenture in connection with any Benchmark Transition Event, in each case pursuant to the terms of Section 2.16 of the Indenture. Furthermore, so long as any of the Notes are Outstanding, the Collateral Manager shall (i) determine whether a Benchmark Transition Event is also a trigger event under the Indenture.Asset Documents for any Collateral Interest, (ii) notify the Servicer and the Special Servicer that a Loan-Level Benchmark Transition Event (as defined in the Servicing Agreement) has occurred with regard to each Collateral Interest with respect to which such determination is made, and (iii) if not in violation of the terms of the applicable Asset Documents, wit
Appears in 1 contract
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Management Services. The Collateral Manager is Supply hereby appointed appoints the Manager, as the Issuer’s exclusive agent manager, to provide the Issuer with certain services in relation Management Services. The Manager hereby agrees to the Collateral specified herein and in the Indenturesuch appointment. Accordingly, the Collateral The Manager accepts such appointment and shall provide the Issuer with hereby agrees to perform all of the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including the Collateral Management Standard):
(a) determining specific Collateral Interests (including Subsequent Collateral Interests) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral Interest) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing AgreementManagement Services”)) at its sole cost and expense, by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times except as may otherwise be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required to be sold pursuant to the Indenture, should be sold and directing the Special Servicer or the Trustee, as applicable, to effect a disposition of any such Collateral Interests, subject toprovided herein, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed standards set forth in Section 2.1(b) hereof, for the benefit of Supply including:
(i) to pursue the business strategy chosen by Supply to maximize the Issuer within three years value of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafterSupply Assets;
(h) (i) monitoring the Collateral Interests on an ongoing basis, (ii) determining to cause Supply to enter into, enforce its rights under and comply with the U/W Stabilized NCF DSCR provisions of the Manufacturing Agreement and Asthe Supply and License Agreement and the other Transaction Document to which it is a party and from time to time, to take reasonable steps to negotiate, amend and/or renew the terms of the Manufacturing Agreement and the Supply and License Agreement consistent with the exercise of sound business judgment;
(iii) to coordinate distribution of product sold to franchisees pursuant to the Supply and License Agreement, and to b▇▇▇ and collect accounts receivable from franchisees in connection with the same;
(iv) to cause Supply to enter into, enforce its rights under and comply with the provisions of a Back-Stabilized LTV Up Manufacturing Agreement in a form and on terms acceptable to the Agent in accordance with Section 2.6 of the GAC Supply and Manufacturing Security Agreement Supplement;
(v) to manage the affairs and take all such action as may be necessary to cause Supply to be in compliance with its obligations under the Transaction Documents, including with respect to the deposit of all Collections into the appropriate accounts as required by the provisions of the Security Agreement and the disbursement of monies as set forth in Sections 6.6 and 14.1 of the Security Agreement;
(vi) to Manage the Supply Assets;
(vii) to protect and defend the Supply Assets;
(viii) to enforce and collect payment of the amount owing on each Collateral Interest Receivable or with respect to any other amounts to supply under any agreement or otherwise (“Other Amounts”);
(ix) to respond to inquiries of Obligors with respect to the Receivables or Other Amounts;
(x) to enforce the terms of all Contracts related to the Receivables or Other Amounts, to the extent authorized, in accordance with the Indentureterms of such Contracts and the terms of the Transaction Documents;
(xi) to maximize income derived from the Supply Assets or Other Collateral and, (iii) determining in doing so, avoid impairing the market value of any Collateral Interest the Supply Assets or the Other Collateral;
(xii) to maintain separate, complete and accurate books and records with respect to all transactions contemplated hereunder in connection with determining the Calculation Amount when required pursuant Supply Assets and the Other Collateral;
(xiii) to deliver electronically or otherwise to any Back up Manager, the Agent and Supply on a calendar quarterly basis an informational listing of any additions, subtractions or changes to the Indenture Assets or any new Contracts, the date of any new Contract and a summary of its key terms and, also, hard copies of all documents evidencing new Supply Assets together with material amendments to, or extensions of, existing Supply Assets;
(ivxiv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture take any and all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator actions on behalf of Supply which may be necessary, required, convenient or incidental to cause the Issuer under business to be conducted utilizing the Indenture or the Servicer or Special Servicer under the Servicing Agreement, in the form and containing all information required thereby (including, in the case of the Monthly Reports Supply Assets and the Redemption Date StatementOther Collateral to comply with all Applicable Laws and regulations, providing information specifically requested by the Note Administrator in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture
(i) managing the Issuer’s investments take all reasonable steps in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement)this regards;
(jxv) providing notificationto comply, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders on behalf of the Notes, the Rating Agencies, the Servicer, the Special Servicer and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by the IssuerSupply, as applicable, either be impractical or not beneficial to the Holders of the Securities;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”)respects, with respect all obligations, if any, under any Contract to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information which Supply is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTCparty; and
(txvi) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement)record ownership changes, enforcing the rights of the Issuer as holder of the Collateral Interests, including taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuerother conveyances, in connection with the performance Supply Assets. The list of Management Services may be amended from time to time by mutual agreement of the Collateral Manager’s duties provided for in this AgreementManager and Supply, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) and Eligible Investments, and (ii) to execute and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, but subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations prior written consent of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral Interests, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management Standard. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the IndentureAgent.
Appears in 1 contract
Management Services. The Collateral Investment Manager is hereby appointed as the Issuer’s exclusive agent to will provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer Company with the following services (in accordance with all and subject to the applicable requirements of of, and the Indenturerestrictions and limitations set forth in, the Servicing Swap Agreement and the Company’s limited liability company agreement (as defined below) and this the “LLC Agreement, including the Collateral Management Standard”)):
(a) determining selecting the specific Collateral Interests (including Subsequent Collateral Interests) Reference Obligations to be purchased or otherwise acquired and included in the timing portfolio of such purchases or acquisitions, as permitted by obligations subject to the IndentureSwap Agreement (the “Portfolio”);
(b) determining specific Eligible Investments with respect to be purchased any action submitted to a vote of the holders of the applicable Reference Obligations as to which the Investment Manager and/or the Company is opposed, to the extent Citibank holds such Reference Obligations, requesting on behalf of the Company that Citibank vote against such action (or sold and the timing of such purchases and sales, in each case, as permitted by the Indentureotherwise withhold its consent);
(c) effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the IssuerCitibank’s exercise (including but not limited to any waiver) of any rights (including, without limitation, including but not limited to voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an underlying obligor of a Collateral Interest any Reference Obligation (each, an “Underlying Obligor”) or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral InterestUnderlying Obligor) or remedies in connection with Collateral Interests and Eligible Investments, as provided in the related Loan Documents, any Reference Obligations held by Citibank and participating in the committees (official or otherwise) or other groups formed by creditors of an obligor of any Collateral InterestUnderlying Obligor, requesting or taking any other action with respect electing not to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions request on behalf of the Servicing Company that Citibank exercise such rights or remedies;
(d) from time to time on or after the termination of the Swap Agreement, dated as determining the specific debt obligations or other assets to be purchased or sold by the Company;
(e) from time to time on or after the termination of the date hereof (Swap Agreement, effecting the “Servicing Agreement”), by purchase and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests sale of all of the Noteholders in accordance with and as permitted debt obligations or other assets to be purchased or sold by the terms of the IndentureCompany;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its monitoring the ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the IndentureReference Obligations;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interests, and determining whether such Collateral Interests, and any other Collateral Interests that are permitted or required each Loan to be sold pursuant to included in the Indenture, should be sold and directing Portfolio meets the Special Servicer or the Trustee, as applicable, to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafterObligation Criteria;
(h) in the event that the Swap Agreement is amended to include portfolio-level criteria, determining whether the Portfolio of Reference Obligations meets such criteria;
(i) monitoring the Collateral Interests Reference Obligations on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing Agreement, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing information specifically requested by the Note Administrator in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management Standard, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, causing the Company to deliver Eligible Collateral to Citibank in writing, to such amounts and at such times as may be required by the Trustee, the Note Administrator, the Servicer, the Special Servicer and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reductionSwap Agreement;
(k) providing notification, in writing, determining whether to the Trustee, the Note Administrator, the Holders terminate one or all of the Notes, the Rating Agencies, the Servicer, the Special Servicer and the Issuer upon becoming actually aware of a Default or an Event of Default under the IndentureTransactions;
(l) determining (in its sole discretion but subject to the Indenture notifying Citibank and the Collateral Management StandardCompany in writing of an Event of Default or Termination Event under the Swap Agreement within one (1) whether, in light Business Day after the Investment Manager has actual knowledge of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by the Issuer, as applicable, either be impractical or not beneficial to the Holders of the Securitiesoccurrence thereof;
(m) taking reasonable action on behalf arranging for the sale of any Reference Obligations held by Citibank to the extent provided by Clause 4(a) of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with Confirmation constituting part of the IndentureSwap Agreement;
(n) monitoring the Issuer’s compliance with the covenants delivering notices and instructions to Citibank as required by the Issuer in the Indenture;Swap Agreement; and
(o) making directing the Company to comply with such determinations, exercising such rights other duties and taking such actions, on behalf responsibilities as may be expressly required of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished Company by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Swap Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents . The Company agrees for the benefit of the Issuer. In furtherance Investment Manager and Citibank to follow the lawful instructions and directions of the foregoing, the Issuer hereby appoints the Collateral Investment Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Investment Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) and Eligible Investments, and (ii) to execute and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreementhereunder. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Investment Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with use reasonable care and in good faithrendering its services hereunder, using a degree of skill and attention no less than that which it (i) the Investment Manager exercises with respect to comparable assets that it manages for itself and (ii) exercises for others in accordance with respect to comparable assets that it manages for others, and in a manner consistent with the its existing practices and procedures then in effect which the Investment Manager reasonably believes to be consistent with those followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsReference Obligations, except as expressly provided otherwise in this Agreement or in the Indenture and without regard Swap Agreement. Subject to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In additionimmediately preceding sentence, the Collateral Investment Manager shall use follow its best efforts to ensure that (i) inquiries are madecustomary standards, to the extent practicablepolicies, and to procedures in performing its duties hereunder and under the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Swap Agreement. The Collateral Investment Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager it under the Servicing this Agreement and the Indenture in accordance with the Collateral Management StandardSwap Agreement. The Collateral Investment Manager shall not be bound to follow any amendment, supplement or modification amendment to the Indenture of which Swap Agreement, however, until it has received written notice at least 10 Business Days prior to a copy of the execution and delivery thereof by amendment from the parties thereto; providedCompany or Citibank and, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Managerin addition, the Collateral Investment Manager shall not be bound thereby (and by any amendment to the Issuer Swap Agreement which adversely affects in any material respects the obligations of the Investment Manager unless the Investment Manager shall have consented thereto in writing. The Company agrees that it will not permit any such amendment, supplement, modification amendment to the Swap Agreement that adversely affects the duties or waiver liabilities of the Investment Manager to become effective) effective unless the Collateral Investment Manager has been given prior written notice thereof of such amendment and has given its written consent consented thereto (which consent in writing. To the extent necessary or appropriate to perform all of the duties to be performed by it hereunder, the Investment Manager shall not be unreasonably withheld) have the power to negotiate, execute and deliver all necessary documents and instruments on behalf of the Company with respect to the Trustee rights and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent Company under the IndentureSwap Agreement. The Investment Manager shall have no obligation to perform any duties other than those specified herein or in the Swap Agreement.
Appears in 1 contract
Sources: Investment Management Agreement (FS Energy & Power Fund)
Management Services. The Company hereby appoints FS Investment Corporation as Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation pursuant to the Collateral specified herein terms and conditions of this Agreement and with the authority to service, administer and exercise rights and remedies, on behalf of the Company, in the Indenture. Accordingly, respect of the Collateral Manager Assets. FS Investment Corporation hereby accepts such appointment and shall agrees to perform the duties and responsibilities of the Collateral Manager pursuant to the terms hereof. The Collateral Manager will provide the Issuer Company with the following services (in accordance with all and subject to the applicable requirements of of, and the Indenturerestrictions and limitations set forth in, the Servicing Global Master Repurchase Agreement and the Company’s amended and restated limited liability company agreement (as defined below) and this the “LLC Agreement, including the Collateral Management Standard”)):
(a) determining the specific Collateral Interests (including Subsequent Collateral Interests) Assets or other assets to be purchased or purchased, otherwise acquired and the timing of such purchases or acquisitions, as permitted sold by the IndentureCompany;
(b) determining specific Eligible Investments to be purchased or sold effecting the purchase, other acquisition and sale of Collateral Assets and all other assets of the timing of such purchases and sales, in each case, as permitted by the IndentureCompany;
(c) effecting negotiating with Obligors as to proposed amendments and modifications (including, but not limited to, extensions or directing the purchase releases of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each case, as permitted by the Indenture. Orders for investment transactions on behalf collateral) of the Issuer may be placed by documentation evidencing and governing the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principalsAssets;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, making determinations with respect to the IssuerCompany’s exercise (including but not limited to any waiver, modification or variation) of any rights (including, without limitation, including but not limited to voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest Obligor or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral InterestObligor) or remedies in connection with the Collateral Interests and Eligible Investments, as provided in the related Loan Documents, Assets and participating in the committees (official or otherwise) or other groups formed by creditors of an obligor of any Collateral Interest, or taking any other action with respect to Collateral Interests and Eligible Investments which the Collateral Manager determines, in accordance Obligor;
(e) determining compliance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the IndentureAdjusted Net Worth Test;
(f) consulting with each Rating Agency at such times as may be reasonably requested by determining whether any Rating Agency in compliance with Section 19 Collateral Asset is a Performing Common Equity, Preferred Stock, a Structured Finance Obligation, a Participation, a Finance Lease, a Uncovered Revolving or Delayed-Draw Asset, Non-Performing Common Equity, a Derivatives Transaction, debt or equity of this Agreement affiliates of Counterparty and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral Interests, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral Interests, as permitted or required under the Indenturea Bank Loan;
(g) determining whether specific Collateral Interests are Credit Risk Collateral Interests or Defaulted Collateral Interestsany payment will be made, and determining whether such Collateral Intereststhe amount thereof, and any other Collateral Interests that are permitted or required to be sold pursuant to Section 6(o) of Annex I to the Indenture, should be sold and directing the Special Servicer or the Trustee, as applicable, to effect a disposition of any such Collateral Interests, subject to, and in accordance with the Indenture; and if a Collateral Interest that is a Defaulted Collateral Interest is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest becoming a Defaulted Collateral Interest, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest as soon as commercially practicable thereafterGlobal Master Repurchase Agreement;
(h) (i) monitoring managing the Collateral Interests on an ongoing basis, (ii) determining Company’s investments within the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified parameters set forth in the Indenture all reports, schedules and certificates that relate to the Collateral Interests and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing Global Master Repurchase Agreement, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing information specifically requested by the Note Administrator in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) ; and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture
(i) managing promptly providing the Issuer’s investments in accordance with the Indenture Counterparty and the Collateral Management Standard, including the limitations relating Company in writing any notices required to be delivered under Section 6(c) of Annex I to the Eligibility Criteria, Global Master Repurchase Agreement to the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that extent the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions has actual knowledge of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer and the Issuer upon receiving actual notice that a Collateral Interest has become a Defaulted Collateral Interest or a Credit Risk Collateral Interest or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management Standard) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by the Issuer, as applicable, either be impractical or not beneficial to the Holders of the Securities;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Interests, including taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Documents occurrence thereof. The Company agrees for the benefit of the Issuer. In furtherance Collateral Manager and the Counterparty to follow the lawful instructions and directions of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including Subsequent Collateral Interests) and Eligible Investments, and (ii) to execute and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing Agreement. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with use reasonable care and in good faithrendering its services hereunder, using a degree of skill and attention no less than that which it (i) the Collateral Manager exercises with respect to comparable assets that it manages for itself and (ii) exercises for others in accordance with respect to comparable assets that it manages for others, and in a manner consistent with the its existing practices and procedures then in effect which the Collateral Manager reasonably believes to be consistent with those followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsAssets, except as expressly provided otherwise in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest under any Loan Document and (ii) commitments to purchase Collateral Interests and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager it under the Servicing Agreement and the Indenture in accordance with the Collateral Management Standardthis Agreement. The Collateral Manager shall not be bound to follow any amendment, supplement or modification amendment to the Indenture of which Global Master Repurchase Agreement, however, until it has received written notice at least 10 Business Days prior to a copy of the execution and delivery thereof by amendment from the parties thereto; providedCompany or the Counterparty and, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Managerin addition, the Collateral Manager shall not be bound thereby (and by any amendment to the Issuer Global Master Repurchase Agreement which adversely affects in any material respects the obligations of the Collateral Manager unless the Collateral Manager shall have consented thereto in writing. The Company agrees that it will not permit any such amendment, supplement, modification amendment to the Global Master Repurchase Agreement that adversely affects the duties or waiver liabilities of the Collateral Manager to become effective) effective unless the Collateral Manager has been given prior written notice thereof of such amendment and has given its written consent consented thereto (which consent in writing. To the extent necessary or appropriate to perform all of the duties to be performed by it hereunder, the Collateral Manager shall not be unreasonably withheld) have the power to negotiate, execute and deliver all necessary documents and instruments on behalf of the Company with respect to any Collateral Asset or other asset of the Company and with respect to the Trustee rights and obligations of the Issuer prior to Company under the effectiveness thereofGlobal Master Repurchase Agreement. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator have no obligation to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indentureany duties other than those specified herein.
Appears in 1 contract
Sources: Collateral Management Agreement (FS Investment CORP)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the The Collateral Manager hereby accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Credit Agreement, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests Mortgage Assets (including Subsequent Collateral InterestsReinvestment Mortgage Assets and Exchange Mortgage Assets) to be purchased or otherwise acquired and the timing of such purchases or acquisitions, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Mortgage Assets and Eligible Investments, effecting or directing the sale of Collateral Interests Mortgage Assets and Eligible Investments, Investments and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral Interests, in each caseReinvestment Mortgage Assets and Exchange Mortgage Assets, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors issuers of Collateral Interests Mortgage Assets as to proposed modifications or waivers of the Loan Documentsdocumentation governing such Mortgage Assets;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor issuer of a Collateral Interest Mortgage Asset or the consensual or non-judicial restructuring of the debt or equity of an obligor issuer of a Collateral InterestMortgage Asset) or remedies in connection with Collateral Interests Mortgage Assets and Eligible Investments, as provided in the related Loan Asset Documents, and participating in the committees or other groups formed by creditors of an obligor issuer of any Collateral InterestMortgage Asset, or taking any other action with respect to Collateral Interests Mortgage Assets and Eligible Investments which the Collateral Manager reasonably determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsMortgage Assets, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral InterestsMortgage Assets, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Mortgage Assets (or, for Participations, the related Participated Mortgage Loans) are Credit Risk Collateral Interests Mortgage Loans or Defaulted Collateral Interests, Mortgage Loans and determining whether such Collateral InterestsMortgage Assets, and any other Collateral Interests Mortgage Assets that are permitted or required to be sold pursuant to the Indenture, should be sold sold, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsMortgage Assets, subject to, and in accordance with the Indenture; and if a Collateral Interest Mortgage Asset that is a Defaulted Collateral Interest Mortgage Asset is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest Mortgage Asset becoming a Defaulted Collateral InterestMortgage Asset, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest Mortgage Asset as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Mortgage Assets on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR basis and As-Stabilized LTV of each Collateral Interest in accordance with the Indenture, (iii) determining the market value of any Collateral Interest in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests Mortgage Assets and that the Issuer is required to prepare and deliver under the Indenture, which that are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 10.11 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Acquisition Criteria, the Eligibility Criteria, the Note Protection Tests, the Acquisition Criteria, the Acquisition and Disposition Requirements Test and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests Mortgage Assets or Eligible Investments, which may include directing the Special Servicer to effect enter into Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Loan Agent and the Issuer upon receiving actual notice that a Collateral Interest Mortgage Asset (or, for a Participation, the related Participated Mortgage Loan) has become a Defaulted Collateral Interest Mortgage Loan or a Credit Risk Collateral Interest Mortgage Loan or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Loan Agent, the Holders of the Class A Loan and the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsMortgage Assets, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests would, at any time any such Subsequent Collateral Interest is eligible for purchase by the Issuer, as applicable, Reinvestment Mortgage Assets or Exchange Mortgage Assets would either be impractical or not beneficial to the Holders of the SecuritiesClass G Notes;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Mortgage Assets and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(ts) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral InterestsMortgage Assets, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests Mortgage Assets (including Subsequent Collateral InterestsReinvestment Mortgage Assets and Exchange Mortgage Assets) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or reasonably necessary, appropriate and customary to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest Mortgage Asset or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavoruse commercially reasonable efforts, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that it reasonably expects will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the SecuritiesClass G Notes. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsCollateral, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest Mortgage Asset under any Loan Asset Document and (ii) commitments to purchase Collateral Interests Mortgage Assets and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement Indenture (including those duties and functions described in Section 2.16 and Section 5.5(a)(iii) of the Indenture in accordance with the Collateral Management StandardIndenture). The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay of the Notes remain Outstanding, the Collateral Manager shall perform the obligations of the Benchmark Agent under the Indenture.
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Management Services. The Collateral Manager is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Collateral specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with all applicable requirements of the Indenture, the Servicing Agreement (as defined below) and this Agreement, including including, without limitation, the Collateral Management Standard):
(a) determining specific Collateral Interests Mortgage Assets (including Subsequent Collateral InterestsReinvestment Mortgage Assets) to be purchased or otherwise acquired and the timing of such purchases or acquisitionspurchases, as permitted by the Indenture;
(b) determining specific Eligible Investments to be purchased or sold and the timing of such purchases and sales, in each case, as permitted by the Indenture;
(c) effecting or directing the purchase of Collateral Interests Mortgage Assets and Eligible Investments, effecting or directing the sale of Collateral Interests Mortgage Assets and Eligible Investments, and effecting or directing the investment or reinvestment of proceeds therefrom in Subsequent Collateral InterestsReinvestment Mortgage Assets, in each case, as permitted by the Indenture. Orders for investment transactions on behalf of the Issuer may be placed by the Collateral Manager (i) with brokers and other financial intermediaries that it selects or (ii) negotiated directly with principals;
(d) negotiating with obligors of Collateral Interests Mortgage Assets as to proposed modifications or waivers of the Loan Asset Documents;
(e) taking action, or advising the Servicer, the Special Servicer, the Trustee and the Note Administrator with respect to actions to be taken, with respect to the Issuer’s exercise of any rights (including, without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interest Mortgage Asset or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Collateral InterestMortgage Asset) or remedies in connection with Collateral Interests Mortgage Assets and Eligible Investments, as provided in the related Loan Asset Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral InterestMortgage Asset, or taking any other action with respect to Collateral Interests Mortgage Assets and Eligible Investments which the Collateral Manager determines, in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement, dated as of the date hereof (the “Servicing Agreement”), by and among the Issuer, the Trustee, the Note Administrator, the Advancing Agent, the Collateral Manager, Situs Asset Management LLC, as servicer, and Situs Holdings, LLC, as special servicer, and Park Bridge Lender Services LLC, as operating advisor (the “Operating Advisor”)), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) consulting with each Rating Agency at such times as may be reasonably requested by any Rating Agency in compliance with Section 19 of this Agreement and providing each Rating Agency with any information reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsMortgage Assets, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Collateral InterestsMortgage Assets, as permitted or required under the Indenture;
(g) determining whether specific Collateral Interests Mortgage Assets are Credit Risk Collateral Interests Mortgage Assets or Defaulted Collateral InterestsMortgage Assets, and determining whether such Collateral InterestsMortgage Assets, and any other Collateral Interests Mortgage Assets that are permitted or required to be sold pursuant to the Indenture, should be sold sold; and, with respect to any proposed sale or exchange of a Credit Risk Mortgage Asset, consulting on a non-binding basis with the Operating Advisor prior to any such sale or exchange solely with respect to the Collateral Manager’s determination that such Mortgage Asset is a Credit Risk Mortgage Asset, and directing the Special Servicer or the Trustee, as applicable, Trustee to effect a disposition of any such Collateral InterestsMortgage Assets, subject to, and in accordance with the Indenture; and, solely with respect to any Credit Risk Mortgage Asset, providing notice of such determination (including information relating to the basis for such determination) to KBRA so long as KBRA is one of the Rating Agencies, and if a Collateral Interest Mortgage Asset that is a Defaulted Collateral Interest Mortgage Asset is not sold or otherwise disposed of by the Issuer within three years of such Collateral Interest Mortgage Asset becoming a Defaulted Collateral InterestMortgage Asset, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Collateral Interest Mortgage Asset as soon as commercially practicable thereafter;
(h) (i) monitoring the Collateral Interests Mortgage Assets on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Collateral Interest Mortgage Asset in accordance with the Indenture, (iii) determining the market value of any Collateral Interest Mortgage Asset in connection with determining the Calculation Amount when required pursuant to the Indenture and (iv) providing or causing to be provided to the Issuer and/or the other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests Mortgage Assets and that the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture or the Servicer or Special Servicer under the Servicing AgreementIndenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Redemption Date Statement, Statement providing the information specifically requested by to the Note Administrator as specified in accordance with Section 10.9 of the Indenture in sufficient time for the Note Administrator to prepare the Monthly Report and the Redemption Date Statement) and, if applicable, in sufficient time for the Issuer to review such required reports and schedules and to deliver them to the parties entitled thereto under the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture and the Collateral Management StandardIndenture, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Acquisition Reinvestment Criteria, the Acquisition and Disposition Requirements and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Management Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Collateral that does not constitute Collateral Interests Mortgage Assets or Eligible Investments, which may include directing the Special Servicer to effect Administrative Modifications and Criteria-Based Modifications (each as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Servicer, the Special Servicer Administrator and the Issuer upon receiving actual notice that a Collateral Interest Mortgage Asset has become a Defaulted Collateral Interest Mortgage Asset or a Credit Risk Collateral Interest Mortgage Asset or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator, the Holders of the Notes, the Rating Agencies, the Servicer, the Special Servicer Agencies and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) determining (in its sole discretion but subject to the Indenture and the Collateral Management StandardIndenture) whether, in light of the composition of Collateral InterestsMortgage Assets, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Subsequent Collateral Interests Reinvestment Mortgage Assets would, at any time any such Subsequent Collateral Interest is eligible for purchase by during the Issuer, as applicableReinvestment Period, either be impractical or not beneficial to the Holders of the SecuritiesPreferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, any Auction Call Redemption or any Clean-up Call in accordance with the Indenture;
(n) monitoring the ratings of the Mortgage Assets and the Issuer’s compliance with the covenants by the Issuer in the Indenture;
(o) making such determinations, exercising such rights and taking such actions, on behalf of the Issuer, as the Collateral Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Securities eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Securities remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Securities, additional information regarding the Issuer and the Collateral if such information is reasonably available to the Collateral Manager and constitutes Rule 144A Information required to be furnished by the Issuer pursuant to Section 7.13 of the Indenture, unless the Issuer furnishes information to the United States Securities and Exchange Commission (the “Commission”) pursuant to Section 13 or Section 15(d) of the Exchange Act;
(r) the Collateral Manager may, subject to and in accordance with the Indenture and this Agreement, in its capacity as the Collateral Manager, directing direct the Issuer to establish a Permitted Subsidiary, which Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement, and to cooperate with the Special Servicer in connection with the formation of any REO Subsidiary pursuant to the Servicing Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or the Issuer with respect to such actions to be taken after the Closing Date, as is reasonably necessary to maintain the clearing and transfer of the Notes through DTC; and
(t) in accordance with the Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral InterestsMortgage Assets, including including, without limitation, taking such action as is necessary to enforce the Issuer’s rights with respect to remedies related to breaches of representations, warranties or covenants in the Loan Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager as the Issuer’s true and lawful agent and attorney-in-fact, with full power of substitution and full authority in the Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests Mortgage Assets (including Subsequent Collateral InterestsReinvestment Mortgage Assets) and Eligible Investments, and (ii) to execute (under hand, under seal or as a deed) and deliver all necessary and appropriate documents and instruments on behalf of the Issuer to the extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the Indenture and the Servicing AgreementIndenture. The foregoing power of attorney is a continuing power, coupled with an interest, and shall remain in full force and effect until revoked by the Issuer in writing by virtue of the termination of this Agreement pursuant to Section 12 hereof or an assignment of this Agreement pursuant to Section 17 hereof; provided that any such revocation shall not affect any transaction initiated prior to such revocation. Nevertheless, if so requested by the Collateral Manager or a purchaser of a Collateral Interest Mortgage Asset or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager or such purchaser all reasonably necessary proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In performing its duties hereunder, the Collateral Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the Collateral in a manner that will (i) permit a timely performance of all payment obligations of the Issuer under the Indenture and (ii) subject to such objective, optimize the returns to the Holders of the Securities. The Collateral Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager agrees that it shall perform its obligations hereunder and under the Indenture and the Servicing Agreement in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which it (i) exercises with respect to comparable assets that it manages for itself and (ii) exercises with respect to comparable assets that it manages for others, and in a manner consistent with the practices and procedures then in effect followed by reasonable and prudent institutional managers of national standing relating to assets of the nature and character of the Collateral InterestsCollateral, except as expressly provided in this Agreement or in the Indenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). In addition, the Collateral Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, and to the extent the Collateral Manager believes necessary in its reasonable business judgment, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Interest Mortgage Asset under any Loan Asset Document and (ii) commitments to purchase Collateral Interests Mortgage Assets and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of such commitment, payment at settlement in respect of any such purchase could be made without any breach or violation of, or default under, the terms of the Indenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to the Collateral Manager under the Servicing Agreement and the Indenture in accordance with the Collateral Management StandardIndenture. The Collateral Manager shall be bound to follow any amendment, supplement or modification to the Indenture of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof by the parties thereto; provided, however, that with respect to any amendment, supplement, modification or waiver to the Indenture which may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it will not permit any such amendment, supplement, modification or waiver to become effective) unless the Collateral Manager has been given prior written notice thereof and has given gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Collateral Manager shall take all actions reasonably requested by the Trustee or the Note Administrator to facilitate the perfection of the Trustee’s security interest in the Collateral pursuant to the Indenture. So long as ay any of the Notes remain are Outstanding, with respect to any Mortgage Asset that, with the consent of the lender, permits the conversion from a LIBOR-based interest rate to a fixed interest rate or a floating rate based on an alternative index, the Collateral Manager shall perform not consent or agree to convert such Mortgage Asset from a LIBOR-based interest rate to a fixed interest rate or a floating rate based on an alternative index, as applicable; provided that the obligations Collateral Manager may consent or agree to convert such Mortgage Assets from a LIBOR-based interest rate to a floating rate based on an alternative index in connection with the general acceptance in the financial markets of the Benchmark Agent under the Indenturean alternative base rate as a replacement benchmark to LIBOR.
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Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.)