Management Services. The Collateral Manager will provide the Issuer with the following services (in accordance with and subject to the applicable requirements of the Indenture and Servicing Agreement): (a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased 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 Eligibility Criteria and the Reinvestment Criteria), 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 payment obligations; (b) determining whether Collateral Interests have become Defaulted Interests, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated Interests; (c) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rights, including but not limited to voting rights, or remedies in connection with the Collateral Interests; (d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, 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, 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 Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement; (e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation. (g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests; (h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture; (i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption; (k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture; (l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS Securities; and (m) complying with the other duties and responsibilities of the Collateral Manager expressly assigned to the Collateral Manager under the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject to the conditions and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. The Collateral Manager shall, in rendering its services in accordance with this Agreement, use a degree of skill and attention no less than that which the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures relating to assets of the nature and character of the Collateral Interests, except as expressly provided otherwise in this Agreement or the Indenture. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunder. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this 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 the Seller; (f) the Person that originated any 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 to the Indenture until it has received written notice thereof and until it has received a copy of the amendment from the Issuer or the Trustee; provided, however, that with respect to any amendment to the Indenture which affects the rights, obligations or compensation of the Collateral Manager, the Collateral Manager shall not be bound thereby unless the Collateral Manager shall have expressly consented thereto in writing.
Appears in 2 contracts
Sources: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
Management Services. The Collateral Manager will provide the Issuer with the following services (in accordance with and subject to the applicable requirements of the Indenture and CDO Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Additional Collateral Interests to be purchased 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 Eligibility 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 payment obligations;
(b) determining whether Collateral Interests have become Defaulted Impaired Interests, Credit Risk Interests, Interests or Buy/Sell Interests or Spread Appreciated Interests;
(c) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rights, including but not limited to voting rights, or remedies in connection with the Collateral InterestsInterests or any Commercial Mortgage Loans;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE Real Estate CDO Securities, 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, 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 Interests that are Whole LoansMortgage Loan Interests, Subordinate Mortgage Loan Interests, Mezzanine Loan Interests or Credit Tenant Lease Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such the CDO Servicer’s exercise of the Issuer’s voting or control such rights with respect to such Collateral Interests pursuant to the related CDO Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE Real Estate CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or any underlying Commercial Mortgage Loans or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole LoansMortgage Loan Interests, Subordinate Mortgage Loan Interests, Mezzanine Loans, B Notes and ParticipationsLoan Interests or Credit Tenant Lease Loan Interests, consulting with, and advising the applicable CDO Servicer with respect to such the CDO Servicer’s exercise of the Issuer’s such approval or consent rights pursuant to the related CDO 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 rightsrights (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 Ratings Rating Agency Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation a Servicer Override advancing (from funds received from the CDO Special Servicer, advancingPreferred Shareholders for such purpose), on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 12.6 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, a Servicer Override determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemptionRedemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 10.4 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of an Underlying CMBS SecuritiesSeries; and
(m) complying with the other duties and responsibilities of the Collateral Manager expressly assigned to the Collateral Manager under the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject to the conditions and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. The Collateral Manager shall, in rendering its services in accordance with this Agreement, use a degree of skill and attention no less than that which the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures relating to assets of the nature and character of the Collateral Interests, except as expressly provided otherwise in this Agreement or the Indenture. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunder. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this 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 the 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 to the Indenture until it has received written notice thereof and until it has received a copy of the amendment from the Issuer or the Trustee; provided, however, that with respect to any amendment to the Indenture which affects the rights, obligations or compensation of the Collateral Manager, the Collateral Manager shall not be bound thereby unless the Collateral Manager shall have expressly consented thereto in writing.
Appears in 2 contracts
Sources: Collateral Management Agreement, Collateral Management Agreement (CBRE Realty Finance Inc)
Management Services. The Collateral Manager will is hereby appointed as the Issuer’s exclusive agent to provide to the Issuer with certain services in relation to the Assets specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide to the Issuer the following services (in accordance with and subject to the all applicable requirements of the Indenture and this Agreement including without limitation the Collateral Manager Servicing AgreementStandard):
(a) identifying determining specific Collateral Interests Debt Securities to be purchased or Collateral Debt Securities to be sold and additional Collateral Interests to be purchased the timing of such purchases and sales, in each case as permitted 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 Eligibility Criteria and the Reinvestment Criteria), 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 payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated Interestsin each case as permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Collateral Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Debt Securities and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom, in each case as permitted by the Indenture;
(d) negotiating with the issuers of Collateral Debt Securities as to proposed modifications or waivers of the documentation governing such Collateral Debt Securities;
(e) taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer or the consensual or non-judicial restructuring of the debt or equity of an issuer) or remedies in connection with the Collateral Interests;
(d) (i) Debt Securities and Eligible Investments, as provided in the related Underlying Instruments, including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an issuer, or taking any other action with respect to Collateral Interests that are CMBS Debt Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has Collateral Manager determines in the right to select (or to vote on the selection of) on behalf reasonable exercise of the Issuer, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf Collateral Manager’s business judgment is in the best interests of the Issuer Noteholders in accordance with and as permitted by the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(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 consulting with the terms of the documents providing such rights; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) Agencies at such times as may be reasonably requested by the Rating Agencies and providing to the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring maintenance of their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable;
(g) determining whether specific Collateral Debt Securities are Credit Risk Securities, Defaulted Securities or Written Down Securities and determining whether such Collateral Debt Securities, and any other Collateral Debt Securities that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Collateral Debt Securities, subject to and in accordance with the Indenture;
(h) subject (i) monitoring the Assets on an ongoing basis and (ii) providing or causing to confirmation from be provided to the CDO Special ServicerIssuer and/or the other applicable parties specified in the Indenture all reports, advancingschedules and certificates which relate to the Assets and which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Trustee on behalf of the IssuerIssuer under the Indenture, any Cure Advance in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Note Valuation Reports, providing to cure an Event the Trustee the information as specified in Sections 10.9(c) and 10.9(e) of Default pursuant the Indenture in sufficient time for the Trustee to Section 17.3 of prepare the Monthly Reports and the Note 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) subject managing the Issuer’s investments in accordance with the Indenture, including the limitations relating to confirmation from the CDO Special ServicerEligibility Criteria, the Coverage Tests, the Collateral Quality Tests, the Reinvestment Criteria and the other requirements of the Indenture, and taking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Manager Servicing Standard and the standard of care set forth herein with respect to any portion of the Assets that does not constitute Collateral Debt Securities or Eligible Investments;
(j) monitoring all Hedge Agreements and determining whether a Nonrecoverable Cure Advance has been madeand when the Issuer should exercise any rights available under any Hedge Agreement, and causing the Issuer to enter into additional or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advancereplacement Hedge Agreements or terminating (in part or in whole) existing Hedge Agreements, pursuant to Section 17.3 of in each case in accordance with the Indenture;
(jk) on or prior providing notification promptly, in writing, to any day which is a Redemption Date for the Notes, directing the Trustee and the Issuer upon receiving actual notice that a Collateral Debt Security is subject to dispose of the Collateral Interests and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemptionan Offer or has become a Defaulted Security, a Written Down Security or a Credit Risk Security;
(kl) monitoring the Collateral Interests on an ongoing basis providing notification promptly, in writing, to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to Trustee and the Issuer upon becoming actually aware of a Default or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required an Event of Default under Section 10.14 of the Indenture;
(lm) selecting Eligible Investments for purchase determining (subject to the Indenture) whether, in light of the composition of Collateral Debt Securities, general market conditions and other factors considered pertinent by the Trustee Collateral Manager, investments in additional Collateral Debt Securities would, at any time during the Reinvestment Period, be either impractical or not beneficial to the Holders of the Preferred Shares;
(n) 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 Indenture;
(p) 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 participating the Issuer’s compliance with the covenants by the Issuer in the committees Indenture;
(official r) assisting the Issuer in (i) taking any action in order to effect and/or maintain the listing of any of the Notes on the Irish Stock Exchange or otherwise(ii) obtaining any waiver from the Irish Stock Exchange, or (iii) providing other groups formed information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by creditors the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of an issuer the Collateral Manager by the Indenture or this Agreement;
(t) complying in all material respects with the Investment Advisers Act of CMBS 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(u) 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 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;
(v) upon reasonable request, assisting the Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of the Notes through DTC; and
(mw) complying in accordance with the other duties and responsibilities Collateral Manager Servicing Standard, enforcing the rights of the Issuer as holder of the Collateral Manager expressly assigned Debt 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 Underlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager under the Indenture. In additionIssuer’s true and lawful agent and attorney-in-fact, during with full power of substitution and full authority in the Reinvestment Period Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager shallManager’s duties provided for in this Agreement, subject including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and otherwise trade Collateral 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 conditions extent necessary or appropriate to perform the services referred to in (a) through (w) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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, a purchaser of a Collateral Debt Security or Eligible Investment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager, such purchaser or such Hedge Counterparty all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. The Collateral Manager shalldoes not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager shall perform its obligations hereunder and under the Indenture with reasonable care and in good faith, in rendering its services in accordance with this Agreement, use using a degree of skill and attention no less than that which the Collateral Manager it (a) exercises with respect to comparable assets that it manages for itself and (b) exercises with respect to comparable assets that it manages for others others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsAssets, except as expressly provided otherwise in this Agreement or in the Indenture. The In addition, the Collateral Manager shall follow its customary standardsuse commercially reasonable efforts to ensure that directions to the Trustee with respect to the purchase of Eligible Investments are made by the Collateral Manager only if, policies and procedures and practices and procedures followed by prudent institutional managers in the Collateral Manager’s commercially reasonable judgment at the time of national standing managing assets such direction, 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement. The the Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in under 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least ten Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that that, with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 to facilitate the perfection of the Trustee’s security interest in writingthe Assets pursuant to 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 will 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 and subject to the all applicable requirements of the Indenture Indenture, the Servicing Agreement (as defined below) and Servicing this Agreement, including the Collateral Management Standard):
(a) identifying determining specific Collateral Interests to be sold and additional (including Subsequent Collateral Interests Interests) to be purchased 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 Eligibility Criteria and the Reinvestment Criteria), or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations 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 the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to 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 Interests;
(d) (i) Interest, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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 documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession reasonably requested in connection with the such Rating Agencies’ monitoring 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) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable 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 Trustee 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 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) selecting Eligible Investments 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 Trustee 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 participating this Agreement, in its capacity as the committees Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official 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 otherwise) or other groups formed by creditors 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 an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities 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 expressly assigned 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 under the Indentureor such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such request. In additionperforming its duties hereunder, during the Reinvestment Period the Collateral Manager shallshall endeavor, subject to the conditions provisions of this Agreement and under the limited circumstances set forth in the Indenture, be permitted toto 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, and is hereby authorized to, direct optimize the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything returns to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility Holders of the Income Noteholders 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 IndentureSecurities. The Collateral Manager shall, in rendering 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 services obligations hereunder and under the Indenture and the Servicing Agreement in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, and procedures 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 practices (ii) commitments to purchase Collateral Interests and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Servicing Agreement and the Indenture in accordance with the Collateral Management Standard. 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 have expressly consented thereto 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 writingthe 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 will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria and the Collateral Management Standard):
(a) determining specific Mortgage Assets (including Reinvestment Criteria), Mortgage Assets) to be purchased and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Mortgage Assets and Eligible Investments, effecting or directing the sale of Mortgage Assets and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom in Reinvestment Mortgage Assets, in each case, as permitted by the Indenture;
(d) negotiating with obligors of Mortgage Assets as to proposed modifications or waivers of the Asset Documents;
(e) taking action, or advising the Trustee and Note Administrator with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Mortgage Asset or the consensual or non-judicial restructuring of the debt or equity of an obligor of a Mortgage Asset) or remedies in connection with Mortgage Assets and Eligible Investments, as provided in the Collateral Interests;
(d) (i) related Asset Documents, and participating in the committees or other groups formed by creditors of an obligor of any Mortgage Asset, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to Mortgage Assets and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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, Situs Asset Management LLC, as servicer, 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 documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession reasonably requested in connection with such Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Mortgage Assets, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Mortgage Assets, as permitted or required under the Indenture;
(g) determining whether specific Mortgage Assets are Credit Risk Mortgage Assets or Defaulted Mortgage Assets, and determining whether such Mortgage Assets, and any other Mortgage Assets that are permitted or required to be sold pursuant to the Indenture, should be 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 Trustee to effect a disposition of any such Mortgage 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’ monitoring , and if a Mortgage Asset that is a Defaulted Mortgage Asset is not sold or otherwise disposed of by the Collateral InterestsIssuer within three years of such Mortgage Asset becoming a Defaulted Mortgage Asset, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Mortgage Asset as soon as commercially practicable thereafter;
(h) (i) monitoring the Mortgage Assets on an ongoing basis, (ii) determining the U/W Stabilized NCF DSCR and As-Stabilized LTV of each Mortgage Asset in accordance with the Indenture, (iii) determining the market value of any 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 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, 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 to the Note Administrator as specified in 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, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the 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 Mortgage Assets or Eligible Investments;
(j) providing notification, in writing, to the Trustee, the Note Administrator and the Issuer upon receiving actual notice that a Mortgage Asset has become a Defaulted Mortgage Asset or a Credit Risk 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 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 confirmation from the CDO Special ServicerIndenture) whether, advancingin light of the composition of Mortgage Assets, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Reinvestment Mortgage Assets would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the Preferred 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, any Cure Advance as the Collateral Manager is authorized to cure an Event of Default pursuant to Section 17.3 of do under the Indenture, the Servicing Agreement or this Agreement;
(ip) subject complying with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 of the IndentureIssuer;
(jq) on or prior to any day which is a Redemption Date for the Notes, directing the Trustee to dispose of the Collateral Interests and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow render the Trustee Securities eligible for resale pursuant to effect Rule 144A under the Securities Act, while any of such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement andSecurities remain outstanding, making available, upon request, providing to the Issuer any Holder or the Trustee prospective purchaser of such Securities, additional information with respect to the Collateral Interests in its possession as may be required to enable regarding the Issuer and the Trustee Collateral if such information is reasonably available to prepare the reports Collateral Manager and constitutes Rule 144A Information required under to be furnished by the Issuer pursuant to Section 10.14 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;
(lr) selecting Eligible Investments for purchase by the Trustee Collateral Manager may, subject to and in accordance with the Indenture and participating this Agreement, in its capacity as the committees Collateral Manager, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or otherwise) or other groups formed by creditors the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Mortgage Assets, 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 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 responsibilities 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 expressly assigned Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Mortgage Assets (including 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 Collateral Manager under extent necessary or appropriate to perform the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject services referred to the conditions in clauses (a) through (t) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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 shallor a purchaser of a 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 proper bills of sale, assignments, releases and other instruments as may be designated in rendering any such request. In performing its services 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 in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsCollateral, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Mortgage Asset under any Asset Document and procedures (ii) commitments to purchase Mortgage Assets and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement. The the Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in under 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 writingthe Collateral pursuant to the Indenture. So long as any of the Notes 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 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 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 an alternative base rate as a replacement benchmark to LIBOR.
Appears in 1 contract
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Management Services. The Collateral Manager will 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 and subject to the all applicable requirements of the Indenture Indenture, the Servicing Agreement and Servicing this Agreement, including, without limitation, the Mortgage Loan Management Standard):
(a) identifying Collateral Interests to be sold determining specific Mortgage Loans, Additional Mortgage Loans and additional Collateral Interests Reinvestment Mortgage Loans to be purchased and the timing of such purchases, as permitted by the Issuer 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 Mortgage Loans, Additional Mortgage Loans during the Ramp-Up Period and Eligible Investments, effecting or directing the Reinvestment Period in accordance with the provisions sale of this Agreement Mortgage Loans and the Indenture (including, without limitation, the Eligibility Criteria and the Reinvestment Criteria)Eligible Investments, and directing the timing thereof with a view to maximizing the recovery on such Collateral Interests and taking into consideration the payment obligations investment or reinvestment of the Issuer under proceeds therefrom in Reinvestment Mortgage Loans, in each case, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(bd) determining whether Collateral Interests have become Defaulted Interests, Credit Risk Interests, Buy/Sell Interests negotiating with issuers of Mortgage Loans as to proposed modifications or Spread Appreciated Interestswaivers of the documentation governing such Mortgage Loans;
(ce) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer of a Mortgage Loan or the consensual or non-judicial restructuring of the debt or equity of an issuer of a Mortgage Loan) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesMortgage Loans and Eligible Investments, 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, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer provided in accordance with the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesLoan Documents, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS any Mortgage Loan, or taking any other action with respect to Mortgage Loans and Eligible Investments which the Collateral Manager determines, in accordance with the Mortgage Loan Management Standard (and subject to the applicable provisions of the Servicing Agreement), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the Indenture;
(f) providing the Rating Agency with any information reasonably requested in connection with the Rating Agency’s maintenance of its ratings of the Notes and their assigning credit indicators to prospective Mortgage Loans, if applicable, and estimating the ratings that the Rating Agency would assign to prospective Mortgage Loans, as permitted or required under the Indenture;
(g) determining whether specific Mortgage Loans are Credit Risk Mortgage Loans or Defaulted Mortgage Loans and determining whether such Mortgage Loans, and any other Mortgage Loans that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Servicer on behalf of the Trustee to effect a disposition of any such Mortgage Loans, subject to, and in accordance with the Indenture;
(i) monitoring the Collateral on an ongoing basis, (ii) determining the As-Stabilized LTV of each Mortgage Loan in accordance with Indenture, (iii) determining the market value of any 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 which relate to the Collateral and which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Trustee on behalf of the Issuer under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports providing the information to the Trustee as specified in Section 10.10 of the Indenture in sufficient time for the Trustee to prepare the Monthly 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, including the limitations relating to the Eligibility Criteria, the Coverage Tests, the Reinvestment Criteria and the other requirements of the Indenture and taking action that the Collateral Manager deems appropriate and consistent with the Indenture, the 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 Mortgage Loans or Eligible Investments;
(j) providing notification, in writing, to the Trustee and the Issuer upon receiving actual notice that a Mortgage Loan is subject to an Offer, has become a Defaulted Mortgage Loan or a Credit Risk Mortgage Loan or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Holders of the Notes, the Rating 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) whether, in light of the composition of Mortgage Loans, general market conditions and other factors considered pertinent by the Collateral Manager, investments in replacement Mortgage Loans would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holder of the Preferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax 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 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, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of any Sensitive Asset in accordance with the Indenture and this Agreement.
(s) upon reasonable request, assisting the Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of the Notes through DTC; and
(mt) complying in accordance with the other duties Mortgage Loan Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Mortgage Loans, 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 the Issuer’s true and responsibilities 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 expressly assigned Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert 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 Collateral Manager under extent necessary or appropriate to perform the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject services referred to the conditions in (a) through (t) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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 shallor a purchaser of a 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 proper bills of sale, assignments, releases and other instruments as may be designated in rendering any such request. In performing its services 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, (ii) be in accordance with this Agreementthe terms under which investors in the Parent REIT made their investments and (iii) subject to such objectives, use 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 in accordance with reasonable care and in good faith, using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsCollateral, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Mortgage Loan Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Mortgage Loan under any Loan Document and procedures (ii) commitments to purchase Mortgage Loans and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement. The the Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in under 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 to facilitate the perfection of the Trustee’s security interest in writingthe Collateral pursuant to the Indenture. So long as any of the Notes 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 not 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 will is hereby appointed as the Issuer’s exclusive agent to provide to the Issuer with certain services in relation to the Assets specified herein and in the Indenture. Accordingly, the Collateral Manager accepts such appointment and shall provide to the Issuer the following services (in accordance with and subject to the all applicable requirements of the Indenture Indenture, the Servicing Agreement and this Agreement including without limitation the Collateral Manager Servicing AgreementStandard):
(a) identifying determining specific Collateral Interests Obligations to be purchased or Collateral Obligations to be sold and additional Collateral Interests to be purchased the timing of such purchases and sales, in each case as permitted 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 Eligibility Criteria and the Reinvestment Criteria), 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 payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated Interestsin each case as permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Collateral Obligations and Eligible Investments, effecting or directing the sale of Collateral Obligations and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom, in each case as permitted by the Indenture;
(d) negotiating with the issuers of Collateral Obligations as to proposed modifications or waivers of the documentation governing such Collateral Obligations;
(e) subject to clause (w), taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer or the consensual or non judicial restructuring of the debt or equity of an issuer) or remedies in connection with the Collateral Interests;
(d) (i) Obligations and Eligible Investments, as provided in the related Underlying Instruments, including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an issuer, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to Obligations and Eligible Investments which the Issuer has Collateral Manager determines in the right to select (or to vote on the selection of) on behalf reasonable exercise of the Issuer, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf Collateral Manager’s business judgment is in the best interests of the Issuer Noteholders and the Certificateholder in accordance with and as permitted by the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(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 consulting with the terms of the documents providing such rights; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) Agencies at such times as may be reasonably requested by the Rating Agencies and providing to the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring maintenance of their ratings of the Notes and their assigning credit indicators to Collateral InterestsObligations, if applicable;
(g) determining whether specific Collateral Obligations are Credit Risk Securities, Defaulted Securities or Written Down Securities and determining whether such Collateral Obligations, and any other Collateral Obligations that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Collateral Obligations, subject to and in accordance with the Indenture;
(h) subject (i) monitoring the Assets on an ongoing basis and (ii) providing or causing to confirmation from be provided to the CDO Special ServicerIssuer and/or the other applicable parties specified in the Indenture all reports, advancingschedules and certificates which relate to the Assets and which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Trustee on behalf of the IssuerIssuer under the Indenture, any Cure Advance in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Note Valuation Reports, providing to cure an Event the Trustee the information as specified in Section 10.12 of Default pursuant the Indenture in sufficient time for the Trustee to Section 17.3 of prepare the Monthly Reports and the Note 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) subject managing the Issuer’s investments in accordance with the Indenture, including the limitations relating to confirmation from the CDO Special ServicerEligibility Criteria, the Coverage Tests, the Collateral Quality Tests, the Replenishment Criteria and the other requirements of the Indenture, and taking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Manager Servicing Standard, the applicable provisions of the Servicing Agreement and the standard of care set forth herein with respect to any portion of the Assets that does not constitute Collateral Obligations or Eligible Investments;
(j) monitoring all Hedge Agreements and determining whether a Nonrecoverable Cure Advance has been madeand when the Issuer should exercise any rights available under any Hedge Agreement, and causing the Issuer to enter into additional or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advancereplacement Hedge Agreements or terminating (in part or in whole) existing Hedge Agreements, pursuant to Section 17.3 of in each case in accordance with the Indenture;
(jk) on providing notification promptly, in writing, to the Trustee and the Issuer upon receiving actual notice that a Collateral Obligation is subject to an Offer or prior to any day which is has become a Redemption Date Defaulted Security, a Written Down Security or a Credit Risk Security in time for the Notesnext Monthly Report; provided, directing the Trustee to dispose however, that if such next Monthly Report is due within five (5) Business Days of the Collateral Interests and any other Collateral pursuant to Issuer receiving such actual notice, the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect Issuer shall deliver such redemptionnotice as soon as reasonably practicable following such delivery of such notice;
(kl) monitoring the Collateral Interests on an ongoing basis providing notification promptly, in writing, to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to Trustee and the Issuer upon becoming actually aware of a Default or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required an Event of Default under Section 10.14 of the Indenture;
(lm) selecting Eligible Investments for purchase determining (subject to the Indenture) whether, in light of the composition of Collateral Obligations, general market conditions and other factors considered pertinent by the Trustee Collateral Manager, investments in additional Collateral Obligations would, at any time during the Replenishment Period, be either impractical or not beneficial to the Noteholders and the Certificateholder;
(n) 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 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 Indenture;
(p) 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 Obligations and participating the Issuer’s compliance with the covenants by the Issuer in the committees Indenture;
(official r) assisting the Issuer in (i) taking any action in order to effect and/or maintain the listing of any of the Notes on the Irish Stock Exchange or otherwise(ii) obtaining any waiver from the Irish Stock Exchange, or (iii) providing other groups formed information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by creditors the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of an issuer the Collateral Manager by the Indenture, this Agreement or the Class A-1R Note Purchase Agreement;
(t) complying in all material respects with the applicable provisions of CMBS the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(u) 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 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;
(v) upon reasonable request, assisting the Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of the Offered Notes (other than the Class A-1R Notes) through DTC; and
(mw) complying in accordance with the other duties and responsibilities Collateral Manager Servicing Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Manager expressly assigned Obligations, 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 Underlying Instruments for the benefit of the Issuer or to breaches of representations, warranties or covenants in the Collateral Obligations Purchase Agreements. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager under as the Indenture. In additionIssuer’s true and lawful agent and attorney-in-fact, during with full power of substitution and full authority in the Reinvestment Period Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager shallManager’s duties provided for in this Agreement, subject including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and otherwise trade Collateral 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 conditions extent necessary or appropriate to perform the services referred to in (a) through (w) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. The Collateral Manager shallforegoing power of attorney is a continuing power, coupled with an interest, and shall remain in rendering its services full force and effect until revoked by the Issuer in accordance with writing by virtue of the termination of this AgreementAgreement 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, use a degree of skill and attention no less than that which if so requested by the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable lawManager, a purchaser of a Collateral Obligation or Eligible Investment or a Hedge Counterparty, the specific laws of the Underlying Instruments relating Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral InterestsManager, its existing practices such purchaser or such Hedge Counterparty all proper bills of sale, assignments, releases and procedures relating to assets of the nature and character of the Collateral Interests, except other instruments as expressly provided otherwise may be designated in this Agreement or the Indentureany such request. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets does not hereby guarantee that sufficient funds will be available on any Payment Date to satisfy any payment obligations of the nature Issuer. Notwithstanding anything to the contrary in this Agreement, the Collateral Manager shall perform its obligations hereunder and character under the Indenture in accordance with the Collateral Manager Servicing Standard. In addition, the Collateral Manager shall use commercially reasonable efforts to ensure that (i) inquiries are made, to the extent practicable, from sources available to it, with respect to the occurrence of any default or event of default in respect of any Collateral Obligation under any Underlying Instrument and (ii) commitments to purchase Collateral Obligations and Eligible Investments are made by the Collateral Manager only if, in the Collateral Manager’s commercially reasonable 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 Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Indenture subject to the Collateral Manager Servicing Standard. 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least ten (10) Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that that, with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects may, in the rightsreasonable judgment of the Collateral Manager, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto not be unreasonably withheld) to the Trustee, the Class A-1R Note Agent and the Issuer prior to the effectiveness thereof. The Collateral Manager shall not be required to take any action or cause any action to be taken hereunder or under the Indenture or Servicing Agreement which is reasonably likely to result in writingthe violation of any law, decree, order, rule or regulation of any court or regulatory, administrative or governmental agency, body or authority. The Collateral Manager shall take all actions reasonably requested by the Trustee to facilitate the perfection of the Trustee’s security interest in the Assets pursuant to the Indenture.
Appears in 1 contract
Sources: Collateral Management Agreement (Capitalsource Inc)
Management Services. The Collateral Manager will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Collateral Interests (including Delayed Close Collateral Interests and the Reinvestment Criteria), Subsequent Collateral Interests) to be purchased or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations 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 Collateral Interests, in each case, as permitted by the Indenture;
(d) negotiating with obligors of Collateral Interests as to proposed modifications of, or waivers relating to, the Loan Documents 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 Trustee Issuer, the Servicer and the Special Servicer with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to 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 Interests;
(d) (i) Interest, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer in accordance with the Collateral Management Standard (and subject to the applicable provisions of the Servicing Agreement), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession reasonably requested in connection with the such Rating Agencies’ monitoring 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 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) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis basis, (ii) determining the U/W Stabilized NCF 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable 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 Trustee Redemption Date Statement providing the information to the Note Administrator as specified in 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 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;
(j) providing notification, in writing, to the Trustee, the Note 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) selecting Eligible Investments 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 such Delayed Close Collateral Interests or Subsequent Collateral Interest is eligible for purchase by the Trustee Issuer, either be impractical or not beneficial to the Holders of the Notes;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax Redemption, 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 Notes eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Notes remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Notes, 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 participating this Agreement, in its capacity as the committees Collateral Manager, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official or otherwiseincluding as a contribution) or other groups formed by creditors of an issuer of CMBS Securities; andany Sensitive Asset in accordance with the Indenture and this Agreement;
(ms) complying 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 necessary to maintain the clearing and transfer of the Notes through DTC;
(t) in accordance with the other duties and responsibilities 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, 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 expressly assigned 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 (u) 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 under the Indenture. In additionor such purchaser all proper bills of sale, during the Reinvestment Period assignments, releases and other instruments as may be designated in any such request; provided, further, however, that (i) any exercise by the Collateral Manager shallof 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 conditions provisions of this Agreement and under the limited circumstances set forth in the Indenture, be permitted toto 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, and is hereby authorized to, direct optimize the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything returns to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility Holders of the Income Noteholders 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 IndentureNotes. The Collateral Manager shall, in rendering 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 services obligations hereunder and under the Indenture and the Servicing Agreement in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsCollateral, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, 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 procedures (ii) commitments to purchase Collateral Interests and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Indenture and the Servicing Agreement in accordance with the Collateral Management Standard. 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto in writing.not be unreasonably withheld) to th
Appears in 1 contract
Sources: Collateral Management Agreement (Invesco Commercial Real Estate Finance Trust, Inc.)
Management Services. The Collateral Manager will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Collateral Interests (including Ramp-Up Collateral Interests and the Reinvestment Criteria), Collateral Interests) to be purchased and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom in Reinvestment Collateral Interests, in each case, as permitted by the Indenture;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Trustee and Note Administrator with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to 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 Interests;
(d) (i) Interest, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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, ▇▇▇▇▇ Fargo Bank, National Association, as servicer, and Trimont 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 documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession 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, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the 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’ monitoring , 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 InterestsInterest 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) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis basis, (ii) determining the 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Trustee Redemption Date Statement providing the information to the Note Administrator as specified in 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture, 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;
(j) providing notification, in writing, to the Trustee, the Note 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 and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) selecting Eligible Investments for purchase determining (in its sole discretion but subject to the Indenture) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Trustee Collateral Manager, investments in Reinvestment Collateral Interests would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the Preferred 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 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 participating this Agreement, in its capacity as the committees Collateral Manager, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or otherwise) or other groups formed by creditors the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Manager expressly assigned Interests, 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 under as the Indenture. In additionIssuer’s true and lawful agent and attorney-in-fact, during with full power of substitution and full authority in the Reinvestment Period Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager shallManager’s duties provided for in this Agreement, subject including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including 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 conditions extent necessary or appropriate to perform the services referred to in clauses (a) through (t) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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 shallor 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 proper bills of sale, assignments, releases and other instruments as may be designated in rendering any such request. In performing its services 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 in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsCollateral, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, 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 procedures (ii) commitments to purchase Collateral Interests and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement. The the Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in under 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 writingthe Collateral pursuant to the Indenture. So long as any of the Notes 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 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 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 an 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 will is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the Assets specified herein and in the Indenture. Accordingly, the Loan Obligation Manager accepts such appointment and shall provide the Issuer with the following services (in accordance with and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Loan Obligation Management Standard):
(a) determining specific Loan Obligations, Additional Loan Obligations and the Reinvestment Criteria), Replacement Loan Obligations to be purchased and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of 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 Loan Obligations and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom in Replacement Loan Obligations, in each case, as permitted by the Indenture. 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 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 Indenture;
(d) negotiating with issuers of Loan Obligations as to proposed modifications or waivers of the documentation governing such Loan Obligations;
(e) taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer of a Loan Obligation or the consensual or non-judicial restructuring of the debt or equity of an issuer of a Loan Obligation) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesLoan Obligations and Eligible Investments, 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, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer provided in accordance with the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesUnderlying Instruments, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS any Loan Obligation, or taking any other action with respect to Loan Obligations and Eligible Investments which the Loan Obligation Manager determines, in accordance with the Loan Obligation Management Standard (and subject to the applicable provisions of the Servicing Agreement), 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 Loan Obligations, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Loan Obligations, as permitted or required under the Indenture;
(g) determining whether specific Loan Obligations are Credit Risk Obligations or Defaulted Obligations and determining whether such Loan Obligations, and any other Loan Obligations that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Loan Obligations, subject to, and in accordance with the Indenture;
(i) monitoring the Assets on an ongoing basis, (ii) determining the As-Stabilized DSCR and As-Stabilized LTV of each Loan Obligation in accordance with the Indenture, (iii) determining the market value of any Collateral 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 which relate to the Assets and which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Trustee on behalf of the Issuer under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Notes Valuation Reports providing the information to the Trustee as specified in Section 10.10 of the Indenture in sufficient time for the Trustee to prepare the Monthly Report and the Note 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, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the Replacement Criteria and the other requirements of the Indenture and taking action that the Loan Obligation Manager deems appropriate and consistent with the Indenture, the 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 Assets that does not constitute Loan Obligations or Eligible Investments;
(j) providing notification, in writing, to the Trustee and the Issuer upon receiving actual notice that a Loan Obligation is subject to an Offer, has become a Defaulted Obligation or a Credit Risk Obligation or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Holders of the Notes, the Rating 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) whether, in light of the composition of Loan Obligations, general market conditions and other factors considered pertinent by the Loan Obligation Manager, investments in replacement Loan Obligations would, at any time during the Replacement Period, either be impractical or not beneficial to the Holder of the Preferred Shares;
(m) taking reasonable action on behalf of the Issuer to effect any Optional Redemption, any Tax 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 Loan Obligation Manager is authorized to do under the Indenture, the Servicing Agreement or this Agreement;
(p) complying 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 Assets if such information is reasonably available to the 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 Loan Obligation Manager, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of any Sensitive Asset in accordance with the Indenture and this Agreement;
(s) upon reasonable request, assisting the Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of the Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities of the Collateral Manager expressly assigned to the Collateral Manager under the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, Loan Obligation Management Standard (but subject to the conditions and under applicable provisions of the limited circumstances set forth Servicing Agreement), enforcing the rights of the Issuer as holder of the Loan Obligations, 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 IndentureUnderlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, be permitted tothe Issuer hereby appoints the Loan Obligation Manager 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 Loan Obligation Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and is hereby authorized toconvert Loan Obligations and Eligible Investments, direct 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 Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything Issuer to the contrary herein extent necessary or appropriate to perform the services referred to in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making (a) through (t) above of any advances, including Cure Advances this Section 1 and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. The Collateral 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 Loan Obligation Manager shallor a purchaser of a Loan Obligation or Eligible Investment, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Loan Obligation Manager or such purchaser all proper bills of sale, assignments, releases and other instruments as may be designated in rendering any such request. In performing its services duties hereunder, the Loan Obligation Manager shall endeavor, subject to the provisions of this Agreement and the Indenture, to manage the 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 Loan Obligation Manager does not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Loan Obligation Manager agrees that it shall perform its obligations hereunder and under the Indenture in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsAssets, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Loan Obligation Management Standard”). In addition, the Loan Obligation Manager shall use its best efforts to ensure that (i) inquiries are made, to the extent practicable, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Loan Obligation under any Underlying Instrument and (ii) commitments to purchase Loan Obligations and Eligible Investments are made by the Loan Obligation Manager only if, in the 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 Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunder. The Collateral Loan Obligation Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Loan Obligation Manager under this 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 Indenture (including those duties and is hereby authorized to take all reasonable actions necessary to accomplish the foregoing. The Collateral Manager agrees and consents to the provisions contained functions described in Section 15.1(f5.5(a)(iii) 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 Loan Obligation 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects may affect the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall not be unreasonably withheld) to the Trustee and the Issuer prior to the effectiveness thereof. The Loan Obligation Manager shall have expressly consented thereto take all actions reasonably requested by the Trustee to facilitate the perfection of the Trustee’s security interest in writingthe Assets pursuant to the Indenture. So long as any of the Notes are Outstanding, with respect to any Loan Obligation that by its terms permits the conversion from a LIBOR-based interest rate to a fixed interest rate, the Loan Obligation Manager shall not 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 will 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 and subject to the all applicable requirements of the Indenture Indenture, the Servicing Agreement (as defined below) and Servicing this Agreement, including the Collateral Management Standard):
(a) identifying determining specific Collateral Interests to be sold and additional (including Subsequent Collateral Interests Interests) to be purchased 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 Eligibility Criteria and the Reinvestment Criteria), or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations 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 the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to 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 Interests;
(d) (i) Interest, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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, Trimont LLC, as servicer and as special servicer), is in the best interests of all of the Noteholders in accordance with and as permitted by the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession reasonably requested in connection with the such Rating Agencies’ monitoring 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) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable 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 Trustee 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 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) selecting Eligible Investments 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 Trustee 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 participating this Agreement, in its capacity as the committees Collateral Manager, directing the Issuer to establish a Permitted Subsidiary, which Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official 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 otherwise) or other groups formed by creditors 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 an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities 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 expressly assigned 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 under the Indentureor such purchaser all reasonably necessary bills of sale, assignments, releases and other instruments as may be designated in any such request. In additionperforming its duties hereunder, during the Reinvestment Period the Collateral Manager shallshall endeavor, subject to the conditions provisions of this Agreement and under the limited circumstances set forth in the Indenture, be permitted toto 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, and is hereby authorized to, direct promote the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything returns to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility Holders of the Income Noteholders and any Securities if 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 Indentureobjective is not met. The Collateral Manager shall, in rendering 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 services obligations hereunder and under the Indenture and the Servicing Agreement in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, and procedures 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 practices (ii) commitments to purchase Collateral Interests and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Servicing Agreement and the Indenture in accordance with the Collateral Management Standard. 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 have expressly consented thereto 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 writingthe 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 (Goldman Sachs Real Estate Finance Trust Inc)
Management Services. The Collateral Manager will is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the 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 and subject to the all applicable requirements of the Indenture and Indenture, the CDO Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria and the Reinvestment Criteria)Collateral Manager Servicing Standard, as applicable):
(a) determining specific Collateral Debt Securities to be purchased or Collateral Debt Securities to be sold and the timing thereof with a view to maximizing the recovery on of such Collateral Interests purchases and taking into consideration the payment obligations of the Issuer under sales, in each case, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Collateral Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Debt Securities and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom, in each case as permitted by the Indenture;
(d) negotiating with the issuers of Collateral Debt Securities as to proposed modifications or waivers of the documentation 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 Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer or the consensual or non-judicial restructuring of the debt or equity of an issuer) or remedies in connection with the Collateral Interests;
(d) (i) Debt Securities and Eligible Investments, as provided in the related Underlying Instruments, including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an issuer, or taking any other action with respect to Collateral Interests that are CMBS Debt Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has Collateral Manager determines in the right to select (or to vote on the selection of) on behalf reasonable exercise of the Issuer, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf Collateral Manager’s business judgment is in the best interests of the Issuer Noteholders in accordance with with, and as permitted by, the terms of the documents providing such rights Indenture, any servicing agreement and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing this 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 consulting with the terms of the documents providing such rights; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) Agencies at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring maintenance of their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable;
(g) determining whether specific Collateral Debt Securities are Credit Risk Securities, Defaulted Securities or Written Down Securities and determining whether such Collateral Debt Securities, and any other Collateral Debt Securities that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Collateral Debt Securities, subject to, and in accordance with the terms and conditions of the Indenture;
(h) subject (i) monitoring the Assets on an ongoing basis and (ii) providing or causing to confirmation from be provided to the CDO Special ServicerIssuer and/or the other applicable parties specified in the Indenture all reports, advancingschedules and certificates which relate to the Assets and which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Trustee, on behalf of the Issuer, any Cure Advance under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Notes Valuation Reports, providing the information to cure an Event the Trustee as specified in Sections 10.9(c) and 10.9(e) of Default pursuant the Indenture in sufficient time for the Trustee to Section 17.3 of prepare the Monthly Report and the Notes 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 Collateral Debt Securities and Eligible Investments in accordance with the Indenture, including the limitations relating to the Eligibility Criteria, the Coverage Tests, the Collateral Quality Tests, the Reinvestment Criteria and the other requirements of the Indenture and this Agreement, and, subject to confirmation from the CDO Special ServicerAsset Servicing Agreement, determining whether a Nonrecoverable Cure Advance has been madetaking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Manager Servicing Standard and the standard of care set forth herein with respect to any portion of the Assets that does not constitute Collateral Debt Securities or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 of Eligible Investments as required or permitted by 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 monitoring all Hedge Agreements and any other Collateral pursuant to the Indenture determining whether and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to when the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable should exercise any rights available under any Hedge Agreement, and causing the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
enter into additional or replacement Hedge Agreements or terminating (lin part or in whole) selecting Eligible Investments for purchase by the Trustee existing Hedge Agreements, in each case, in accordance with the Indenture and participating the terms of such Hedge Agreements;
(k) providing notification promptly, in writing, to the Trustee and the Issuer upon receiving actual notice that a Collateral Debt Security is subject to an Offer or has become a Defaulted Security, a Written Down Security or a Credit Risk Security;
(l) providing notification promptly, in writing, to the Trustee and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(m) determining (subject to the Indenture) whether, in light of the composition of Collateral Debt Securities, general market conditions and other factors considered pertinent by the Collateral Manager, investments in additional Collateral Debt Securities would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the Preferred Shares;
(n) 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;
(p) 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 committees Indenture;
(official r) assisting the Issuer in (i) taking any action in order to effect and/or maintain the listing of any of the Notes on the Irish Stock Exchange or otherwise(ii) obtaining any waiver from the Irish Stock Exchange, or (iii) providing other groups formed information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by creditors the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of an issuer the Collateral Manager by the Indenture or this Agreement;
(t) complying in all material respects with the Investment Advisers Act of CMBS 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(u) 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 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;
(v) upon reasonable request, assisting the Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of the Notes through DTC and Euroclear; and
(mw) complying in accordance with the other duties and responsibilities Collateral Manager Servicing Standard, enforcing the rights of the Issuer as holder of the Collateral Manager expressly assigned Debt 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 Underlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager under the Indenture. In additionIssuer’s true and lawful agent and attorney-in-fact, during with full power of substitution and full authority in the Reinvestment Period Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager shallManager’s duties provided for in this Agreement, subject including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and otherwise trade Collateral 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 conditions extent necessary or appropriate to perform the services referred to in (a) through (w) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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, a purchaser of a Collateral Debt Security or Eligible Investment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager, such purchaser or such Hedge Counterparty all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. The Collateral Manager shalldoes not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager shall perform its obligations hereunder and under the Indenture with reasonable care and in good faith, in rendering its services in accordance with this Agreement, use using a degree of skill and attention no less than that which the Collateral Manager it (a) exercises with respect to comparable assets that it manages for itself and (b) exercises with respect to comparable assets that it manages for others others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsAssets, except as expressly provided otherwise in this Agreement or in the Indenture. The In addition, the Collateral Manager shall follow its customary standardsuse commercially reasonable efforts to ensure that directions to the Trustee with respect to the purchase of Eligible Investments are made by the Collateral Manager only if, policies and procedures and practices and procedures followed by prudent institutional managers in the Collateral Manager’s commercially reasonable judgment at the time of national standing managing assets such direction, 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement. The the Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in under 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least ten (10) Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that that, with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 to facilitate the perfection of the Trustee’s security interest in writingthe Assets pursuant to the Indenture. Notwithstanding anything contained herein to the contrary, (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 be subject to the applicable provisions of the Asset Servicing Agreement.
Appears in 1 contract
Sources: Collateral Management Agreement (Gramercy Capital Corp)
Management Services. The Collateral Investment Manager will provide the Issuer Company with the following services (in accordance with and subject to the applicable requirements of of, and the Indenture restrictions and Servicing limitations set forth in, the Swap Agreement and the Company’s limited liability company agreement (the “LLC Agreement”)):
(a) identifying Collateral Interests selecting the specific Reference Obligations to be sold and additional Collateral Interests included in the portfolio of obligations subject to be purchased by the Issuer during Swap Agreement (the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (including, without limitation, the Eligibility Criteria and the Reinvestment Criteria“Portfolio”), 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 payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestswith respect to 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, Credit Risk Intereststo the extent Citibank holds such Reference Obligations, Buy/Sell Interests requesting on behalf of the Company that Citibank vote against such action (or Spread Appreciated Interestsotherwise withhold its consent);
(c) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the IssuerCitibank’s exercise of or waiver (including but not limited to any waiver) of any rights, rights (including but not limited to voting rightsrights and rights arising in connection with the bankruptcy or insolvency of an underlying obligor of any Reference Obligation (each, an “Underlying Obligor”) or the consensual or non-judicial restructuring of the debt or equity of an Underlying Obligor) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, 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, 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 Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested Reference Obligations held by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture Citibank and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer Underlying Obligor, requesting or electing not to request on behalf of CMBS Securitiesthe Company that Citibank exercise such rights or remedies;
(d) from time to time on or after the termination of the Swap Agreement, 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 Swap Agreement, effecting the purchase and sale of debt obligations or other assets to be purchased or sold by the Company;
(f) monitoring the ratings of the Reference Obligations;
(g) determining whether each Loan to be included in the Portfolio meets the Obligation 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 Reference Obligations on an ongoing basis;
(j) causing the Company to deliver Eligible Collateral to Citibank in such amounts and at such times as may be required by the Swap Agreement;
(k) determining whether to terminate one or all of the Transactions;
(l) notifying Citibank and the Company in writing of an Event of Default or Termination Event under the Swap Agreement within one (1) Business Day after the Investment Manager has actual knowledge of the occurrence thereof;
(m) arranging for the sale of any Reference Obligations held by Citibank to the extent provided by Clause 4(a) of the Confirmation constituting part of the Swap Agreement;
(n) delivering notices and instructions to Citibank as required by the Swap Agreement; and
(mo) complying directing the Company to comply with the such other duties and responsibilities as may be expressly required of the Collateral Company by the Swap Agreement. The Company agrees for the benefit of the Investment Manager expressly assigned and Citibank to follow the Collateral lawful instructions and directions of the Investment Manager under in connection with the IndentureInvestment Manager’s services hereunder. In addition, during the Reinvestment Period the Collateral Manager shall, subject to the conditions and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral The Investment Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. The Collateral Manager shall, use reasonable care in rendering its services in accordance with this Agreementhereunder, use using a degree of skill and attention no less than that which the Collateral Investment Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures which the Investment Manager reasonably believes to be consistent with those followed by 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 the IndentureSwap Agreement. The Collateral Subject to the immediately preceding sentence, the Investment Manager shall follow its customary standards, policies policies, and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunderhereunder and under the Swap Agreement. The Collateral Investment Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement and the Swap 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 the Seller;
(f) the Person that originated any 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 to the Indenture until it has received written notice thereof and Swap Agreement, however, until it has received a copy of the amendment from the Issuer Company or the Trustee; providedCitibank and, however, that with respect to any amendment to the Indenture which affects the rights, obligations or compensation of the Collateral Managerin addition, the Collateral Investment Manager shall not be bound thereby by any amendment to the Swap Agreement which adversely affects in any material respects the obligations of the Investment Manager unless the Collateral Investment Manager shall have expressly consented thereto in writing. The Company agrees that it will not permit any amendment to the Swap Agreement that adversely affects the duties or liabilities of the Investment Manager to become effective unless the Investment Manager has been given prior written notice of such amendment and consented thereto in writing. To the extent necessary or appropriate to perform all of the duties to be performed by it hereunder, the Investment Manager shall have the power to negotiate, execute and deliver all necessary documents and instruments on behalf of the Company with respect to the rights and obligations of the Company under the Swap 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 Collateral Manager will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria and the Collateral Management Standard):
(a) determining specific Collateral Interests (including Reinvestment Criteria), Collateral Interests) to be purchased and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Collateral Interests and Eligible Investments, effecting or directing the sale of Collateral Interests and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom in Reinvestment Collateral Interests, in each case, as permitted by the Indenture;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Asset Documents;
(e) taking action, or advising the Trustee and Note Administrator with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to 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 Asset Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interests;
(d) (i) Interest, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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 documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession 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, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the 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’ monitoring , 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 InterestsInterest 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) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Trustee Redemption Date Statement providing the information to the Note Administrator as specified in 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 the Indenture;
(i) managing the Issuer’s investments in accordance with the Indenture, including the limitations relating to the Eligibility Criteria, the Note Protection Tests, the 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 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 and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) selecting Eligible Investments for purchase 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 Trustee Collateral Manager, investments in Reinvestment Collateral Interests would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the Preferred 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) complying 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 participating this Agreement, in its capacity as the committees Collateral Manager, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or otherwise) or other groups formed by creditors the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities 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, 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 Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager expressly assigned 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 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 under the Indentureor such purchaser all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In additionperforming its duties hereunder, during the Reinvestment Period the Collateral Manager shallshall endeavor, subject to the conditions provisions of this Agreement and under the limited circumstances set forth in the Indenture, be permitted toto 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, and is hereby authorized to, direct optimize the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything returns to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility Holders of the Income Noteholders 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 IndentureSecurities. The Collateral Manager shall, in rendering 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 services obligations hereunder and under the Indenture and the Servicing Agreement in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, 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 Asset Document and procedures (ii) commitments to purchase Collateral Interests and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this the Indenture and the Servicing 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 writingthe Collateral pursuant to the Indenture. 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 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 Replacement as the Loan-Level Benchmark Replacement.
Appears in 1 contract
Sources: Collateral Management Agreement (TPG RE Finance Trust, Inc.)
Management Services. The Collateral Manager will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Collateral Interests (including Ramp-Up Collateral Interests, Reinvestment Collateral Interests and the Reinvestment Criteria), Exchange Collateral Interests) to be purchased or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations 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 Reinvestment Collateral Interests, in each case, as permitted by the Indenture;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Asset Documents;
(e) taking action, or advising the Trustee and Note Administrator with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to 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 Asset Documents, and participating in the committees or other groups formed by creditors of an obligor of any Collateral Interests;
(d) (i) Interest, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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 documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession 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, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the 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’ monitoring ; 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 InterestsInterest 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) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Trustee Redemption Date Statement providing the information to the Note Administrator as specified in 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 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 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 and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) selecting Eligible Investments for purchase 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 Trustee Collateral Manager, investments in Ramp-Up Collateral Interests and Reinvestment Collateral Interests would, at any time during the Ramp-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 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 participating this Agreement, in its capacity as the committees Collateral Manager, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or otherwise) or other groups formed by creditors the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities 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, 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 Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager expressly assigned 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 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 under the Indentureor such purchaser all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In additionperforming its duties hereunder, during the Reinvestment Period the Collateral Manager shallshall endeavor, subject to the conditions provisions of this Agreement and under the limited circumstances set forth in the Indenture, be permitted toto 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, and is hereby authorized to, direct optimize the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything returns to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility Holders of the Income Noteholders 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 IndentureSecurities. The Collateral Manager shall, in rendering 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 services obligations hereunder and under the Indenture and the Servicing Agreement in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, 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 Asset Document and procedures (ii) commitments to purchase Collateral Interests and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this the Indenture and the Servicing 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 writing.the Collateral pursuant to the Indenture. So long as any of the Notes remain Outstanding, the Collateral Manager shall (i) provide written notice to the 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 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 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 Company hereby appoints FS Energy and Power Fund as Collateral Manager pursuant to the terms and conditions of this Agreement and with the authority to service, administer and exercise rights and remedies, on behalf of the Company, in respect of the Collateral Loans acquired by the Company. FS Energy and Power Fund hereby accepts such appointment and 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 and subject to the applicable requirements of of, and the Indenture restrictions and Servicing limitations set forth in, the Credit Agreement, the Company’s limited liability company agreement (the “LLC Agreement”) and the Master Transfer Agreement):
(a) identifying determining the specific Collateral Interests to be sold and additional Collateral Interests Loans or other assets to be purchased (or otherwise acquired) or sold by the Issuer during the Ramp-Up Period and the Reinvestment Period Company, in accordance with the provisions Servicing Standard; provided that for the avoidance of this Agreement and doubt, notwithstanding anything to the Indenture (includingcontrary contained herein or in any Loan Document, without limitation, the Eligibility Criteria and the Reinvestment Criteria), 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 payment obligationsany obligations of any other Person under any Loan Document;
(b) determining whether effecting the purchase (or other acquisition) and sale of Collateral Interests have become Defaulted Interests, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated InterestsLoans and all other assets of the Company;
(c) negotiating with Obligors as to proposed amendments and modifications (including, but not limited to, maturity extensions or releases of collateral) of the documentation evidencing and governing the Collateral Loans, enforcing and collecting on the Collateral Loans and otherwise managing the Collateral Loans on behalf of the Company;
(d) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the IssuerCompany’s exercise of or waiver of any rights(including, including but not limited to to, any waiver, modification or variation) of any rights (including, but not limited to, voting rights, rights and rights arising in connection with the bankruptcy or insolvency of an Obligor or the consensual or non-judicial restructuring of the debt or equity of an Obligor) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, 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, 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 Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture Loans and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS Securities; and
(m) complying with the other duties and responsibilities of the Collateral Manager expressly assigned to the Collateral Manager under the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject to the conditions and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. The Collateral Manager shall, in rendering its services in accordance with this Agreement, use a degree of skill and attention no less than that which the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures relating to assets of the nature and character of the Collateral Interests, except as expressly provided otherwise in this Agreement or the Indenture. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunder. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this 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 InterestsObligor;
(e) any repurchase or indemnity obligation on subject to the part calculations made by the Collateral Agent pursuant to Section 8.9(b) of the SellerCredit Agreement, determining compliance with the Coverage Tests;
(f) the Person that originated determining whether any Collateral InterestsLoan is a Senior Secured Loan, Second Lien Loan, Senior Secured Bond, Fixed Rate Obligation, Cov-Lite Loan, DIP Loan, Revolving Collateral Loan, Delayed Funding Loan, PIK Loan, Defaulted Loan, Credit Improved Loan, Current Pay Obligation, Credit Risk Loan, Bridge Loan, Synthetic Security, Zero Coupon Loan, Real Estate Loan, Structured Finance Obligation, Discount Loan, Step-Up Loan, Step-Down Loan and/or Subordinated Loan;
(g) determining whether any payment will be made, and the repayment amount thereof, pursuant to Section 5.31 of any Cure Advances made by it or any affiliate thereof; orthe Credit Agreement;
(h) ownership managing the Company’s investments within the parameters set forth in the Credit Agreement;
(i) determining whether any investment is an Eligible Investment;
(j) directing the sale of the Collateral Loans in accordance with Section 10.1 of the Credit Agreement;
(k) providing assistance to the Company and/or the Collateral Agent with respect to the sale of the Collateral Loans in accordance with Section 10.1 of the Credit Agreement;
(l) maintaining and implementing administrative and operating procedures and maintaining all necessary servicing records with respect to the Collateral Loans in respect of the servicing and collection (subject to the provisions herein) of the Collateral Loans (including information relating to its performance under this Agreement) as may be required by it the Loan Documents;
(m) monitoring the ratings of the Collateral Loans;
(n) instructing the administrative agents or, in the case of Participation Interests, the Selling Institutions, in respect of the Collateral Loans to make payments directly into the Collection Account established and maintained with the Collateral Agent;
(o) monitoring the Collateral Loans on an ongoing basis and providing to the Administrative Agent and the Company or to any affiliate thereof other Person designated by the Company all information and data which is generated by, or reasonably accessible to, the Collateral Manager and which is required under the Credit Agreement or requested by the Company in connection with the preparation of any loans made all reports, certificates, schedules and other data which the Company is required to an obligor of a Collateral Interest prepare and deliver under the Credit Agreement, in sufficient time for the Company, or its affiliate or any preferred equity in the Person designated by the Company (including but not limited to the Custodian), to review such obligor. The data and prepare and deliver to the parties entitled thereto all such reports, certificates, schedules and other data required by the Credit Agreement; provided that the Collateral Manager shall comply with all review the terms and conditions contents of the Indenture affecting Collateral Reports, Payment Date Reports, instructions, statements and certificates and make such reports available to each Rating Agency then rating the duties Loans and functions that have been delegated notify the Collateral Agent of any comments to it thereunder such reports, in each case, no later than 10 Business Days after its receipt of such reports from the Collateral Agent and hereunder. Howeverwith respect to the Collateral Reports and Payment Date Reports, the Collateral Manager shall not notify the Collateral Agent of any discrepancies of which it has knowledge no later than five Business Days after receipt so that such discrepancies can be bound to follow any amendment reconciled prior to the Indenture until it has received written notice thereof date such reports are due;
(p) identifying each Collateral Loan in its servicing records to reflect that such Collateral Loan is owned by the Company;
(q) supervising the Collateral Loans, including communicating with Obligors, executing amendments, providing recommendations to the Company to provide consents and until it has received a copy waivers (subject to the terms and conditions set forth in Section 5.19 of the amendment from Credit Agreement), enforcing and (subject to the Issuer or provisions hereof) collecting on the TrusteeCollateral Loans and otherwise managing the Collateral Loans on behalf of the Company;
(r) providing the Administrative Agent, the Collateral Agent and the Company notice in writing of a continuing Default under the Credit Agreement within seven days after a Senior Officer of the Collateral Manager obtains actual knowledge of the occurrence thereof. As used in this Agreement; provided“Senior Officer” shall mean, however, that with respect to any amendment to the Indenture which affects the rights, obligations or compensation of the Collateral Manager, the Collateral Manager shall not be bound thereby unless the Collateral Manager shall have expressly consented thereto any chief executive officer, chief operating officer, chief credit officer, credit committee member, executive vice president or president (or, in writing.each case, any other officer with a position analogous to those identified above);
Appears in 1 contract
Sources: Collateral Management Agreement (FS Energy & Power Fund)
Management Services. The Collateral Manager will is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the 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 and subject to the all applicable requirements of the Indenture and Indenture, the CDO Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Manager Servicing Standard, as applicable, and the Reinvestment Criteria), without regard to any conflicts of interest):
(a) determining specific Collateral Debt Securities to be purchased or Collateral Debt Securities to be sold and the timing thereof with a view to maximizing the recovery on of such Collateral Interests purchases and taking into consideration the payment obligations of the Issuer under sales, in each case, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Collateral Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Debt Securities and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom, in each case as permitted by the Indenture;
(d) negotiating with the issuers of Collateral Debt Securities as to proposed modifications or waivers of the documentation 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 Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer or the consensual or non-judicial restructuring of the debt or equity of an issuer) or remedies in connection with the Collateral Interests;
(d) (i) Debt Securities and Eligible Investments, as provided in the related Underlying Instruments, including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an issuer, or taking any other action with respect to Collateral Interests that are CMBS Debt Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has Collateral Manager determines in the right to select (or to vote on the selection of) on behalf reasonable exercise of the Issuer, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf Collateral Manager’s business judgment is in the best interests of the Issuer Noteholders in accordance with with, and as permitted by, the terms of the documents providing such rights Indenture, any servicing agreement and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing this 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 consulting with the terms of the documents providing such rights; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) Agencies at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring maintenance of their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable;
(g) determining whether specific Collateral Debt Securities are Credit Risk Securities, Defaulted Securities, Written Down Securities or Spread Appreciated Securities and determining whether such Collateral Debt Securities, and any other Collateral Debt Securities that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Collateral Debt Securities, subject to, and in accordance with the terms and conditions of the Indenture;
(h) subject (i) monitoring the Assets on an ongoing basis and (ii) providing or causing to confirmation from be provided to the CDO Special ServicerIssuer and/or the other applicable parties specified in the Indenture all reports, advancingschedules and certificates which relate to the Assets and which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Trustee, on behalf of the Issuer, any Cure Advance under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Notes Valuation Reports, providing the information to cure an Event the Trustee as specified in Sections 10.9(c) and 10.9(e) of Default pursuant the Indenture in sufficient time for the Trustee to Section 17.3 of prepare the Monthly Report and the Notes 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 Collateral Debt Securities and Eligible Investments in accordance with the Indenture, including the limitations relating to the Eligibility Criteria, the Coverage Tests, the Collateral Quality Tests, the Replenishment Criteria and the other requirements of the Indenture and this Agreement, and, subject to confirmation from the CDO Special ServicerAsset Servicing Agreement, determining whether a Nonrecoverable Cure Advance has been madetaking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Manager Servicing Standard and the standard of care set forth herein with respect to any portion of the Assets that does not constitute Collateral Debt Securities or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 of Eligible Investments as required or permitted by 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 monitoring all Hedge Agreements and any other Collateral pursuant to the Indenture determining whether and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to when the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable should exercise any rights available under any Hedge Agreement, and causing the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
enter into additional or replacement Hedge Agreements or terminating (lin part or in whole) selecting Eligible Investments for purchase by the Trustee existing Hedge Agreements, in each case, in accordance with the Indenture and participating the terms of such Hedge Agreements;
(k) providing notification promptly, in writing, to the Trustee and the Issuer upon receiving actual notice that a Collateral Debt Security is subject to an Offer or has become a Defaulted Security, a Written Down Security or a Credit Risk Security;
(l) providing notification promptly, in writing, to the Trustee and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(m) determining (subject to the Indenture) whether, in light of the composition of Collateral Debt Securities, general market conditions and other factors considered pertinent by the Collateral Manager, investments of Replenishment Proceeds in additional Collateral Debt Securities in the committees foreseeable future would, at any time during the Replenishment Period, either be impractical or not beneficial to the Issuer and the Holders of the Preferred Shares;
(official n) 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 otherwiseany Clean-up Call in accordance with the Indenture;
(p) 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;
(r) assisting the Issuer in (i) taking any action in order to effect and/or maintain the listing of any of the Notes on the Irish Stock Exchange, (ii) obtaining any waiver from the Irish Stock Exchange or (iii) providing other groups formed information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by creditors the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of the Collateral Manager by the Indenture or this Agreement;
(t) complying in all material respects with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(u) 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 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;
(v) upon reasonable request, assisting the Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of the Notes through DTC and Euroclear;
(w) in accordance with the Collateral Manager Servicing Standard, enforcing the rights of the Issuer as holder of the Collateral Debt 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 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 issuer of CMBS SecuritiesAuction Call Redemption; and
(mz) complying electing the applicable scenario to use in connection with the other duties Moody’s Test Matrix, the S&P Test Matrix and responsibilities the Fitch Test Matrix. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager 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 expressly assigned 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 otherwise trade Collateral 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 Collateral Manager under extent necessary or appropriate to perform the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject services referred to the conditions in (a) through (y) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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, a purchaser of a Collateral Debt Security or Eligible Investment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager, such purchaser or such Hedge Counterparty all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. The Collateral Manager shalldoes not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager shall perform its obligations hereunder and under the Indenture with reasonable care and in good faith, in rendering its services in accordance with this Agreement, use using a degree of skill and attention no less than that which the Collateral Manager it (a) exercises with respect to comparable assets that it manages for itself and (b) exercises with respect to comparable assets that it manages for others others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsAssets, except as expressly provided otherwise in this Agreement or in the Indenture. The In addition, the Collateral Manager shall follow its customary standardsuse commercially reasonable efforts to ensure that directions to the Trustee with respect to the purchase of Eligible Investments are made by the Collateral Manager only if, policies and procedures and practices and procedures followed by prudent institutional managers in the Collateral Manager’s commercially reasonable judgment at the time of national standing managing assets such direction, 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement. The the Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in under 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least ten (10) Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that that, with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of may affect the Collateral Manager, the Collateral Manager shall not be bound thereby (and the Issuer agrees that it 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 to facilitate the perfection of the Trustee’s security interest in writingthe Assets pursuant to the Indenture. Notwithstanding anything contained herein to the contrary, (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 be subject to the applicable provisions of the Asset Servicing Agreement.
Appears in 1 contract
Sources: Collateral Management Agreement (Gramercy Capital Corp)
Management Services. The Collateral Manager will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Collateral Interests (including Reinvestment Collateral Interests and the Reinvestment Criteria), Exchange Collateral Interests) to be purchased or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations 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 Reinvestment Collateral Interests and Exchange Collateral Interests, in each case, as permitted by the Indenture;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Loan Documents;
(e) taking action, or advising the Trustee and Note Administrator with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to 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 Interests;
(d) (i) Interest, or taking any other action with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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, W▇▇▇▇ Fargo Bank, National Association, as servicer, and Trimont 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 documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession reasonably requested in connection with the such Rating Agencies’ monitoring 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, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, directing the Special Servicer and the 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 thereafter;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Trustee Redemption Date Statement providing information specifically requested by the Note Administrator as specified in Section 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 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 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 and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) selecting Eligible Investments for purchase 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 Trustee Collateral Manager, investments in Reinvestment Collateral Interests would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the Preferred 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 participating this Agreement, in its capacity as the committees Collateral Manager, directing the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or otherwise) or other groups formed by creditors the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities 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, 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 expressly assigned 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, 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 under the Indentureor such purchaser all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In additionperforming its duties hereunder, during the Reinvestment Period the Collateral Manager shallshall endeavor, subject to the conditions provisions of this Agreement and under the limited circumstances set forth in the Indenture, be permitted toto 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, and is hereby authorized to, direct optimize the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything returns to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility Holders of the Income Noteholders 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 IndentureSecurities. The Collateral Manager shall, in rendering 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 services obligations hereunder and under the Servicing Agreement and the Indenture in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsCollateral, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use 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 customary standardsreasonable business judgment, policies 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 procedures (ii) commitments to purchase Collateral Interests and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Servicing Agreement and the Indenture in accordance with the Collateral Management Standard. 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 have expressly consented thereto 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 writingthe Collateral pursuant to the Indenture. If the Collateral Manager determines that a Loan-Level Benchmark Transition Event (as defined in the Servicing Agreement) has occurred with respect to any Serviced Commercial Real Estate Loan (as defined in the Servicing Agreement), the Collateral Manager shall (i) designate the 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 Replacement to the Special Servicer.
Appears in 1 contract
Sources: Collateral Management Agreement (Granite Point Mortgage Trust Inc.)
Management Services. The Collateral Manager will is hereby appointed as the Issuer’s exclusive agent to provide the Issuer with certain services in relation to the 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 and subject to the all applicable requirements of the Indenture and Indenture, the CDO Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria and the Reinvestment Criteria)Collateral Manager Servicing Standard, as applicable):
(a) determining specific Collateral Debt Securities to be purchased or Collateral Debt Securities to be sold and the timing thereof with a view to maximizing the recovery on of such Collateral Interests purchases and taking into consideration the payment obligations of the Issuer under sales, in each case, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Collateral Debt Securities and Eligible Investments, effecting or directing the sale of Collateral Debt Securities and Eligible Investments, and directing the investment or reinvestment of proceeds therefrom, in each case as permitted by the Indenture;
(d) negotiating with the issuers of Collateral Debt Securities as to proposed modifications or waivers of the documentation 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 Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer or the consensual or non-judicial restructuring of the debt or equity of an issuer) or remedies in connection with the Collateral Interests;
(d) (i) Debt Securities and Eligible Investments, as provided in the related Underlying Instruments including in connection with an Offer or a default, and participating in the committees or other groups formed by creditors of an issuer, or taking any other action with respect to Collateral Interests that are CMBS Debt Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has Collateral Manager determines in the right to select (or to vote on the selection of) on behalf reasonable exercise of the Issuer, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf Collateral Manager’s business judgment is in the best interests of the Issuer Noteholders in accordance with with, and as permitted by, the terms of the documents providing such rights Indenture, any servicing agreement and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing this Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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 consulting with the terms of the documents providing such rights; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) Agencies at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring maintenance of their ratings of the Notes and their assigning credit indicators to prospective Collateral InterestsDebt Securities, if applicable;
(hg) subject determining whether specific Collateral Debt Securities are Credit Risk Securities Defaulted Securities or Written Down Securities and determining whether such Collateral Debt Securities, and any other Collateral Debt Securities that are permitted or required to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default be sold pursuant to Section 17.3 the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Collateral Debt Securities, subject to, and in accordance with the terms and conditions of the Indenture;
(i) monitoring the Assets on an ongoing basis and (ii) providing or causing to be provided to the Issuer and/or the other applicable parties specified in the Indenture all reports schedules and certificates which relate to the Assets and which the Issuer is required to prepare and deliver under the Indenture, which are not prepared and delivered by the Trustee, on behalf of the Issuer, under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Notes Valuation Reports, providing the information to the Trustee as specified in Sections 10.9(c) and 10.9(e) of the Indenture in sufficient time for the Trustee to prepare the Monthly Report and the Notes 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 Collateral Debt Securities and Eligible Investments in accordance with the Indenture, including the limitations relating to the Eligibility Criteria, the Coverage Tests, the Collateral Quality Tests, the Reinvestment Criteria and the other requirements of the Indenture and this Agreement, and, subject to confirmation from the CDO Special ServicerAsset Servicing Agreement, determining whether a Nonrecoverable Cure Advance has been madetaking any action that the Collateral Manager deems appropriate and consistent with the Indenture, the Collateral Manager Servicing Standard and the standard of care set forth herein with respect to any portion of the Assets that does not constitute Collateral Debt Securities or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 of Eligible Investments as required or permitted by 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 monitoring all Hedge Agreements and any other Collateral pursuant to the Indenture determining whether and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to when the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable should exercise any rights available under any Hedge Agreement, and causing the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
enter into additional or replacement Hedge Agreements or terminating (lin part or in whole) selecting Eligible Investments for purchase by the Trustee existing Hedge Agreements, in each case, in accordance with the Indenture and participating the terms of such Hedge Agreements;
(k) providing notification promptly, in writing, to the Trustee and the Issuer upon receiving actual notice that a Collateral Debt Security is subject to an Offer or has become a Defaulted Security, a Written Down Security or a Credit Risk Security;
(l) providing notification promptly, in writing, to the Trustee and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(m) determining (subject to the Indenture) whether, in light of the composition of Collateral Debt Securities, general market conditions and other factors considered pertinent by the Collateral Manager, investments in additional Collateral Debt Securities would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the Preferred Shares;
(n) 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;
(p) 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 committees Indenture;
(official r) assisting the Issuer in (i) taking any action in order to effect and/or maintain the listing of any of the Notes on the Irish Stock Exchange or otherwise(ii) obtaining any waiver from the Irish Stock Exchange, or (iii) providing other groups formed information related to the Issuer that is reasonably available to the Collateral Manager, in each case, when specifically requested by creditors the Irish Stock Exchange;
(s) complying with such other duties and responsibilities as may be specifically required of an issuer the Collateral Manager by the Indenture or this Agreement;
(t) complying in all material respects with the Investment Advisers Act of CMBS 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(u) 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 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;
(v) upon reasonable request, assisting the Trustee or the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of the Notes through DTC and Euroclear; and
(mw) complying in accordance with the other duties and responsibilities Collateral Manager Servicing Standard, enforcing the rights of the Issuer as holder of the Collateral Manager expressly assigned Debt 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 Underlying Instruments for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager under the Indenture. In additionIssuer’s true and lawful agent and attorney-in-fact, during with full power of substitution and full authority in the Reinvestment Period Issuer’s name, place and stead and without any necessary further approval of the Issuer in connection with the performance of the Collateral Manager shallManager’s duties provided for in this Agreement, subject including the following powers: (i) in accordance with the terms and conditions of the Indenture and this Agreement, to buy, sell, exchange, convert and otherwise trade Collateral 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 conditions extent necessary or appropriate to perform the services referred to in (a) through (w) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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, a purchaser of a Collateral Debt Security or Eligible Investment or a Hedge Counterparty, the Issuer shall ratify and confirm any such sale or other disposition by executing and delivering to the Collateral Manager, such purchaser or such Hedge Counterparty all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. The Collateral Manager shalldoes not hereby guarantee that sufficient funds will be available on each Payment Date to satisfy any such payment obligations. The Collateral Manager shall perform its obligations hereunder and under the Indenture with reasonable care and in good faith, in rendering its services in accordance with this Agreement, use using a degree of skill and attention no less than that which the Collateral Manager it (a) exercises with respect to comparable assets that it manages for itself and (b) exercises with respect to comparable assets that it manages for others others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsAssets, except as expressly provided otherwise in this Agreement or in the Indenture. The In addition, the Collateral Manager shall follow its customary standardsuse commercially reasonable efforts to ensure that directions to the Trustee with respect to the purchase of Eligible Investments are made by the Collateral Manager only if, policies and procedures and practices and procedures followed by prudent institutional managers in the Collateral Manager’s commercially reasonable judgment at the time of national standing managing assets such direction, 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this Agreement. The the Collateral Manager shall cause any sale of any Collateral Interest to be conducted in accordance with the procedures set forth in under 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least ten (10) Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that that, with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 to facilitate the perfection of the Trustee’s security interest in writingthe Assets pursuant to the Indenture. Notwithstanding anything contained herein to the contrary, (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 be subject to the applicable provisions of the Asset Servicing Agreement.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Gramercy Capital Corp)
Management Services. The Collateral Manager will 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. The Collateral Manager hereby accepts such appointment and shall provide the Issuer with the following services (in accordance with and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Mortgage Assets (including Ramp-Up Mortgage Assets and the Reinvestment Criteria), Mortgage Assets) to be purchased or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Mortgage Assets and Eligible Investments, effecting or directing the sale of Mortgage Assets and Eligible Investments and effecting or directing the investment or reinvestment of proceeds therefrom in Reinvestment Mortgage Assets and directing the use of amounts in the Unused Proceeds Account to acquire Ramp-Up Mortgage Assets, in each case as permitted by the Indenture;
(d) negotiating with issuers of Mortgage Assets as to proposed modifications or waivers of the documentation governing such Mortgage Assets;
(e) taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer of a Mortgage Asset or the consensual or non-judicial restructuring of the debt or equity of
6 1 an issuer of a Mortgage Asset) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesMortgage Assets and Eligible Investments, 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, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer provided in accordance with the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesAsset Documents, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS any Mortgage Asset, or taking any other action with respect to 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), 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 Mortgage Assets, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Mortgage Assets, as permitted or required under the Indenture;
(g) determining whether specific Mortgage Assets (or, for Participations, the related Participated Mortgage Loans) are Credit Risk Mortgage Loans or Defaulted Mortgage Loans and determining whether such Mortgage Assets, and any other Mortgage Assets that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Mortgage Assets, subject to, and in accordance with the Indenture; and if a Mortgage Asset that is a Defaulted Mortgage Asset is not sold or otherwise disposed of by the Issuer within three years of such Mortgage Asset becoming a Defaulted Mortgage Asset, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Mortgage Asset as soon as commercially practicable thereafter;
(h) monitoring the Mortgage Assets on an ongoing basis and 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 Mortgage Assets and that the Issuer is required to prepare and deliver under the Indenture, that are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture, 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 to the Note Administrator as specified in Section 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, including the limitations relating to the Acquisition Criteria, the Eligibility Criteria, the Note Protection 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 Mortgage Assets or Eligible Investments, which may include directing the Special Servicer to enter into Administrative Modifications and Criteria-Based Modifications (as defined in the Servicing Agreement); USActive 56230836.6 2
(j) providing notification, in writing, to the Trustee, the Note Administrator and the Issuer upon receiving actual notice that a Mortgage Asset (or, for a Participation, the related Participated Mortgage Loan) has become a Defaulted Mortgage Loan or a Credit Risk Mortgage Loan or has suffered an appraisal reduction;
(k) providing notification, in writing, to the Trustee, the Note Administrator and the Holders of the Notes, the Rating 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) whether, in light of the composition of Mortgage Assets, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Reinvestment Mortgage Assets would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the Preferred 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 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, direct the Issuer to establish a Permitted 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;
(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 necessary to maintain the clearing and transfer of the Notes through DTC; and
(mt) complying in accordance with the other duties 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 Mortgage Assets, 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 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 responsibilities 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 expressly assigned Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Mortgage Assets (including Ramp-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 Collateral Manager under extent reasonably necessary, appropriate and customary to perform the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject services referred to the conditions in (a) through (t) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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 shallor a purchaser of a 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 proper bills of sale, assignments, releases and other instruments as may be designated in rendering any such request. In performing its services duties hereunder, the Collateral Manager shall use 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 Preferred 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 in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsCollateral, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Mortgage Asset under any Asset Document and procedures (ii) commitments to purchase Mortgage Assets and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Indenture (including those duties and functions described in Section 2.16 and Section 5.5(a)(iii) of the Indenture). 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 the Seller;
(f) the Person that originated any 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 to the Indenture until it has received written notice thereof and until it has received a copy of the amendment from the Issuer or the Trustee; provided, however, that with respect to any amendment to the Indenture which affects the rights, obligations or compensation of the Collateral Manager, the Collateral Manager shall not be bound thereby unless the Collateral Manager shall have expressly consented thereto in writing.bound
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Management Services. (a) The Company hereby appoints FS Investment Corporation II as Collateral Manager pursuant to the terms and conditions of this Agreement and with the authority to service, administer and exercise rights and remedies, on behalf of the Company, in respect of the Collateral Portfolio. FS Investment Corporation II hereby accepts such appointment and agrees to perform the duties and responsibilities of the Collateral Manager pursuant to the terms hereof. The Collateral Manager and the Company hereby acknowledge that the Administrative Agent and the Secured Parties are third party beneficiaries of the obligations undertaken by the Collateral Manager hereunder.
(b) The Collateral Manager will provide the Issuer Company with the following services (in accordance with and subject to the applicable requirements of of, and the Indenture restrictions and Servicing Agreementlimitations set forth in, the Transaction Documents and the LLC Agreement and subject to and consistent with the Collateral Management Standard):
(ai) identifying Collateral Interests to be sold and additional Collateral Interests determining the specific Loans or other assets to be purchased or sold by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (includingCompany, without limitation, the Eligibility Criteria and the Reinvestment Criteria), 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 Company on each Payment Date under the Indenture; providedLSA in so doing, however, such that expected distributions on the Collateral Manager does not hereby guarantee Loans and other assets of the Company permit a timely performance of such the payment obligationsobligations by the Company under the LSA;
(bii) determining whether Collateral Interests have become Defaulted Interests, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated Interestseffecting the purchase and sale of Loans and all other assets of the Company in accordance with the LSA;
(ciii) subject to the limitations set forth in the LSA, negotiating with Obligors as to proposed amendments and modifications (including, but not limited to, extensions or releases of collateral) of the documentation evidencing and governing the Loans;
(iv) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the IssuerCompany’s exercise of or waiver of any rights(including, including but not limited to to, any waiver, modification or variation of any provision of an item of Collateral Portfolio unless such waiver, modification or variation would materially impair the collectability of the Collateral Portfolio) of any rights (including, but not limited to, voting rights, rights and rights arising in connection with the bankruptcy or insolvency of an Obligor or the consensual or non-judicial restructuring of the debt or equity of an Obligor) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, 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, 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 Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture Loans and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer Obligor;
(v) monitoring the Loans and the rest of CMBS Securitiesthe Collateral Portfolio on an ongoing basis and providing to the Administrative Agent and the Company or to any other Person designated by the Company all information and data which is generated by, or reasonably accessible to, the Collateral Manager and which is required under the LSA or requested by the Company in connection with the preparation of all reports, certificates, schedules and other data which the Company is required to prepare and deliver under the LSA, in the form and containing all information required by the LSA, in sufficient time for the Company, or the Person designated by the Company (including, but not limited to, the Collateral Custodian), to review such data and prepare and deliver to the parties entitled thereto all such reports, certificates, schedules and other data required by the LSA; and
(mvi) complying maintaining or causing to be maintained all necessary servicing records with respect to the Collateral Portfolio and maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other duties and responsibilities information reasonably necessary or advisable for the collection of the Collateral Portfolio.
(c) The Company agrees for the benefit of the Collateral Manager expressly assigned and the Administrative Agent to follow the lawful instructions and directions of the Collateral Manager under in connection with the Indenture. In addition, during the Reinvestment Period Collateral Manager’s services hereunder.
(d) If (i) the Collateral Manager shall, subject makes a deposit into the Collection Account in respect of an Interest Collection or Principal Collection of a Loan and such Interest Collection or Principal Collection was received by it in the form of a check that is not honored for any reason or (ii) the Collateral Manager makes a mistake with respect to the conditions amount of any Interest Collection or Principal Collection and under deposits an amount that is less than or more than the limited actual amount of such Interest Collection or Principal Collection, it shall appropriately adjust the amount subsequently deposited into the Collection Account to reflect such dishonored check or mistake. Any Scheduled Payment in respect of which a dishonored check is received shall be deemed not to have been paid.
(e) The Collateral Manager may, in its discretion and consistent with the Collateral Management Standard and the applicable Underlying Instrument, foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Loan as to which no satisfactory arrangements can be made for collection of delinquent payments; provided that the Company will promptly reimburse the Collateral Manager for any reasonable costs and expenses incurred in connection with the foregoing. The Collateral Manager will comply with the Collateral Management Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including reasonable efforts consistent with the Collateral Management Standard to enforce all obligations of Obligors foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent has specifically given instruction to the contrary, the Collateral Manager may cause the sale of any such Underlying Collateral to itself or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of an Authorized Person of the Collateral Manager delivered to the Administrative Agent setting forth the Loan, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Collateral Manager will not expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral unless it reasonably determines that such repair and/or foreclosure or repossession will increase the Recoveries by an amount greater than the amount of such expenses. The Collateral Manager will remit to the Collection Account the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Loan.
(f) The Collateral Manager shall (i) engage the Collateral Advisor and the Collateral Sub-Advisor to perform duties and responsibilities as set forth in the IndentureAdvisory Agreements, be permitted to(ii) ensure that the Collateral Advisor and the Collateral Sub-Advisor have the authority to service, administer and is hereby authorized toexercise rights and remedies, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility on behalf of the Income Noteholders Company, in respect of the Collateral Portfolio and any such obligation (iii) use its best efforts to make Interest Advances shall be the exclusive responsibility of CBRE Realty Finance, Inc., and any successor thereto as Advancing Agent cause each other Borrower Advisor to render services under the Indenture. The Collateral Manager shall, in rendering its services Advisory Agreements in accordance with this Agreement, use a degree of skill and attention no less than that which the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures relating to assets of the nature and character of the Collateral Interests, except as expressly provided otherwise in this Agreement or the Indenture. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunder. Management Standard.
(g) The Collateral Manager shall comply with all of the terms and conditions of and perform all the duties and functions that have been specifically delegated to it under this Agreement. The Company agrees that it will promptly provide a copy of each amendment to the LSA to the Collateral Manager and will not permit any amendment to the LSA that adversely affects in any material respects the duties or liabilities of the Collateral Manager to become effective unless the Collateral Manager has been given prior written notice of such amendment and consented thereto in writing. The Collateral Manager shall cause any purchase or sale of any Collateral Interest Loans or other assets of the Company to be conducted on an arm’s length basis or on terms that would be obtained in accordance an arm’s length transaction in compliance with Section 2 and Section 8.
(h) To the procedures set forth in extent necessary or appropriate to perform all of the Indenture. The duties to be performed by it hereunder, the Collateral Manager shall have the right power to obtain any information relating to the Collateral Interests directly from the applicable lendernegotiate, borrower or issuer execute and is hereby authorized to take deliver all reasonable actions necessary to accomplish the foregoing. The Collateral Manager agrees documents and consents to the provisions contained in Section 15.1(f) instruments on behalf 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 Company with respect to any particular transaction;Loan or other asset of the Company.
(di) the ownership or servicing or management for others, by the Collateral Manager, or any of its Affiliates of any other assets of similar nature Notwithstanding anything to the Collateral Interests;
(e) any repurchase or indemnity obligation on the part of the Seller;
(f) the Person that originated any 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. Howevercontrary herein, the Collateral Manager shall not only be bound permitted to follow any amendment to the Indenture until it has received written notice thereof and until it has received a copy of the amendment from the Issuer or the Trustee; provided, however, that take actions hereunder with respect to any amendment asset of the Company permitted by this Agreement or to the Indenture which affects extent that the rightsCompany is expressly permitted to take such actions under the LSA.
(j) In addition to, obligations or compensation and without limiting, the duties set forth in this Section 1, the Collateral Manager acknowledges that the Company is required to cause it to deliver the items specified in the following sections of the LSA: Section 6.07, Section 6.08 and Section 6.09, and the Collateral Manager acknowledges that it has read and understood the requirements of the foregoing sections and hereby agrees to deliver those specified items subject to and in accordance with the terms of such sections and this Agreement; provided that, if any such item allows the Collateral Manager to exercise discretion with respect to the content thereof, such discretion shall be subject to the Collateral Management Standard. For the avoidance of doubt, no calculation required under the above referenced sections (including, without limitation, a calculation of the Borrowing Base) is a discretionary act of the Collateral Manager.
(k) In addition to, and without limiting, the duties set forth in this Section 1, the Collateral Manager shall not be bound thereby unless acknowledges that the Company is authorized or required to cause it to perform functions specified in the following sections of the LSA: the definitions of “Assigned Value”, “Borrowing Base Certificate”, “Broadly Syndicated Loan”, “Credit Risk Loan”, “Fixed Rate Loan”, “Insurance Proceeds”, “Large Middle Market Loan”, “Recoveries”, “Senior Net Leverage Ratio”, “Senior Secured Bond”, “Total Net Leverage Ratio”, “Traditional Middle Market Loan”, and clause (bb) of the definition of “Loan Tape”, each in Section 1.01, Section 2.06(c), Section 2.15(a), Section 2.18 and Section 2.19, and the Collateral Manager shall have expressly consented thereto acknowledges that it has read and understood the requirements of the foregoing sections and hereby agrees to perform those specified functions subject to and in writingaccordance with the terms of this Agreement and subject to and consistent with the Collateral Management Standard.
Appears in 1 contract
Sources: Collateral Management Agreement (FS Investment Corp II)
Management Services. The Collateral Manager will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Collateral Interests (including Reinvestment Collateral Interests and the Reinvestment Criteria), Exchange Collateral Interests) to be purchased or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations 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 Reinvestment Collateral Interests as permitted by the Indenture;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Asset Documents;
(e) taking action, or advising the Trustee and Note Administrator with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, or remedies tender rights and rights arising in connection with the bankruptcy or insolvency of an obligor of a Collateral Interests;
(dInterest or the consensual or non‑judicial restructuring of the debt or equity of an obligor of a Collateral Interest) (i) or remedies in 28547457.3 connection with Collateral Interests and Eligible Investments, as provided in the related 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 that are CMBS Securities or CRE CDO Securities, for each such Collateral Interest as to and Eligible Investments which the Issuer has the right to select (or to vote on the selection of) on behalf of the IssuerCollateral Manager determines, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer 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 documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related Servicing AgreementIndenture;
(f) consulting 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the any Rating Agencies Agency in compliance with Section 19 of this Agreement and providing the each Rating Agencies Agency with any information in its possession reasonably requested in connection with the such Rating Agencies’ monitoring 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, with respect to any proposed sale or exchange of a Credit Risk Collateral Interest, and directing the Trustee and the Special Servicer 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) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis 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 extent necessary Indenture and (iv) providing or causing to fulfill its duties under this Agreement and, upon request, providing be provided to the Issuer or and/or the Trustee information with respect other parties specified in the Indenture all reports, schedules and certificates that relate to the Collateral Interests in its possession as may be and that the Issuer is required to enable prepare and deliver under the Indenture, which are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture, in the form and containing all information required thereby (including, in the case of the Monthly Reports and the Trustee Redemption Date Statement providing the information to the Note Administrator as specified in 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 required and schedules and to deliver them to the parties entitled thereto under Section 10.14 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 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 and the Issuer upon becoming actually aware of a Default or an Event of Default under the Indenture;
(l) selecting Eligible Investments for purchase 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 Trustee Collateral Manager, investments in Reinvestment Collateral Interests would, at any time during the Reinvestment 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 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 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 participating this Agreement, in its capacity as the committees Collateral Manager, direct the Issuer to establish a Permitted Subsidiary and such Permitted Subsidiary may acquire, retain, sell or otherwise dispose of (official including as a contribution) any Sensitive Asset in accordance with the Indenture and this Agreement;
(s) upon reasonable request, assisting the Trustee, the Note Administrator or otherwise) or other groups formed by creditors the Issuer with respect to such actions to be taken after the Closing Date, as is necessary to maintain the clearing and transfer of an issuer of CMBS Securitiesthe Notes through DTC; and
(mt) complying in accordance with the other duties and responsibilities 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, 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 Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager expressly assigned 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 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 under the Indentureor such purchaser all proper bills of sale, assignments, releases and other instruments as may be designated in any such request. In additionperforming its duties hereunder, during the Reinvestment Period the Collateral Manager shallshall endeavor, subject to the conditions provisions of this Agreement and under the limited circumstances set forth in the Indenture, be permitted toto 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, and is hereby authorized to, direct optimize the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything returns to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility Holders of the Income Noteholders 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 IndentureSecurities. The Collateral Manager shall, in rendering 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 services obligations hereunder and under the Indenture and the Servicing Agreement in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, 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 Asset Document and procedures (ii) commitments to purchase Collateral Interests and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this the Indenture and the Servicing 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 gives its written consent thereto (which consent shall have expressly consented thereto 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 writing.the Collateral pursuant to the Indenture. So long as any of the Notes remain Outstanding, the Collateral Manager shall (i) provide written notice to the 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 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 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 will 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 and subject to the all applicable requirements of the Indenture and Indenture, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Collateral Interests (including Delayed Acquisition Collateral Interests, Exchange Collateral Interests and the Reinvestment Criteria), Collateral Interests) to be purchased or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations 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 Reinvestment Collateral Interests, in each case, as permitted by the Indenture;
(d) negotiating with obligors of Collateral Interests as to proposed modifications or waivers of the Asset Documents;
(e) taking action, or advising 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 rightsrights (including, including but not limited to 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 the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, 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, 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 Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements Eligible Investments, as provided in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement andrelated Asset Documents, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS Securitiesany 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), 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, and directing the 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;
(i) monitoring the Collateral Interests on an ongoing basis, (ii) determining the U/W Stabilized NCF 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, 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 to the Note Administrator as specified in Section 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, including the limitations relating to the Acquisition Criteria, the Eligibility Criteria, the Note Protection 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 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 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 and the Holders of the Notes, the Rating 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) whether, in light of the composition of Collateral Interests, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Reinvestment Collateral Interests would, at any time during the Reinvestment Period, either be impractical or not beneficial to the Holders of the 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 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 with the Investment Advisers Act of 1940, as amended (the “Advisers Act”), with respect to the Issuer;
(q) in order to render the Notes eligible for resale pursuant to Rule 144A under the Securities Act, while any of such Notes remain outstanding, making available, upon request, to any Holder or prospective purchaser of such Notes, 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, direct the Issuer to establish a Permitted 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
(ms) complying in accordance with the other duties and responsibilities Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Collateral Manager expressly assigned Interests, 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 Asset Documents for the benefit of the Issuer. In furtherance of the foregoing, the Issuer hereby appoints the Collateral Manager under as the Indenture. In additionIssuer’s true and lawful agent and attorney-in-fact, during with full power of substitution and full authority in the Reinvestment Period Issuer’s name, place and stead and without any necessary further approval of the Issuer, in connection with the performance of the Collateral Manager shallManager’s duties provided for in this Agreement, subject including the following powers: (i) to buy, sell, exchange, and convert Collateral Interests (including 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 conditions extent reasonably necessary, appropriate and under customary to perform the limited circumstances set forth services referred to in the Indenture, be permitted to, clauses (a) through (t) above of this Section 1 and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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 shallor 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 proper bills of sale, assignments, releases and other instruments as may be designated in rendering any such request. In performing its services duties hereunder, the Collateral Manager shall use 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 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 in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, 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 Asset Document and procedures (ii) commitments to purchase Collateral Interests and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Indenture (including those duties and functions described in Section 2.16 of the Indenture). 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 have expressly consented thereto 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 writingthe Collateral pursuant to the Indenture. So long as any of the Notes are Outstanding, 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 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 Replacement.
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Management Services. The Company hereby appoints FS Investment Corporation as Collateral Manager pursuant to the terms and conditions of this Agreement and with the authority to service, administer and exercise rights and remedies, on behalf of the Company, in respect of the Collateral Assets. FS Investment Corporation hereby accepts such appointment and 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 and subject to the applicable requirements of of, and the Indenture restrictions and Servicing limitations set forth in, the Global Master Repurchase Agreement and the Company’s amended and restated limited liability company agreement (the “LLC Agreement”)):
(a) identifying determining the specific Collateral Interests Assets or other assets to be purchased, otherwise acquired or sold and additional Collateral Interests to be purchased 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 Eligibility Criteria and the Reinvestment Criteria), 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 payment obligationsCompany;
(b) determining whether effecting the purchase, other acquisition and sale of Collateral Interests have become Defaulted Interests, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated InterestsAssets and all other assets of the Company;
(c) negotiating with Obligors as to proposed amendments and modifications (including, but not limited to, extensions or releases of collateral) of the documentation evidencing and governing the Collateral Assets;
(d) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the IssuerCompany’s exercise of (including but not limited to any waiver, modification or waiver variation) of any rights, rights (including but not limited to voting rights, rights and rights arising in connection with the bankruptcy or insolvency of an Obligor or the consensual or non-judicial restructuring of the debt or equity of an Obligor) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, 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, 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 Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture Assets and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer Obligor;
(e) determining compliance with the Adjusted Net Worth Test;
(f) determining whether any 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 CMBS Securitiesaffiliates of Counterparty and a Bank Loan;
(g) determining whether any payment will be made, and the amount thereof, pursuant to Section 6(o) of Annex I to the Global Master Repurchase Agreement;
(h) managing the Company’s investments within the parameters set forth in the Global Master Repurchase Agreement; and
(mi) complying with promptly providing the other duties Counterparty and responsibilities the Company in writing any notices required to be delivered under Section 6(c) of Annex I to the Global Master Repurchase Agreement to the extent the Collateral Manager has actual knowledge of the occurrence thereof. The Company agrees for the benefit of the Collateral Manager expressly assigned and the Counterparty to follow the lawful instructions and directions of the Collateral Manager under the Indenture. In addition, during the Reinvestment Period in connection with the Collateral Manager shall, subject to the conditions and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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 IndentureManager’s services hereunder. The Collateral Manager shall, shall use reasonable care in rendering its services in accordance with this Agreementhereunder, use using a degree of skill and attention no less than that which the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures which the Collateral Manager reasonably believes to be consistent with those followed by 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 the Indenture. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunderAgreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this 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 the Seller;
(f) the Person that originated any 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 to the Indenture until it has received written notice thereof and Global Master Repurchase Agreement, however, until it has received a copy of the amendment from the Issuer Company or the Trustee; providedCounterparty and, however, that with respect to any amendment to the Indenture which affects the rights, obligations or compensation of the Collateral Managerin addition, the Collateral Manager shall not be bound thereby by any amendment to the Global Master Repurchase Agreement which adversely affects in any material respects the obligations of the Collateral Manager unless the Collateral Manager shall have expressly consented thereto in writing. The Company agrees that it will not permit any amendment to the Global Master Repurchase Agreement that adversely affects the duties or liabilities of the Collateral Manager to become effective unless the Collateral Manager has been given prior written notice of such amendment and consented thereto in writing. To the extent necessary or appropriate to perform all of the duties to be performed by it hereunder, the Collateral Manager shall 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 rights and obligations of the Company under the Global Master Repurchase Agreement. The Collateral Manager shall have no obligation to perform any duties other than those specified herein.
Appears in 1 contract
Sources: Collateral Management Agreement (FS Investment CORP)
Management Services. The Collateral Manager will 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. The Collateral Manager hereby accepts such appointment and shall provide the Issuer with the following services (in accordance with and subject to the all applicable requirements of the Indenture and Indenture, the Credit Agreement, the Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (this Agreement, including, without limitation, the Eligibility Criteria Collateral Management Standard):
(a) determining specific Mortgage Assets (including Reinvestment Mortgage Assets and the Reinvestment Criteria), Exchange Mortgage Assets) to be purchased or otherwise acquired and the timing thereof with a view to maximizing the recovery on of such Collateral Interests and taking into consideration the payment obligations of the Issuer under purchases or acquisitions, as permitted by the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligations;
(b) determining whether Collateral Interests have become Defaulted Interestsspecific Eligible Investments to be purchased or sold and the timing of such purchases and sales, Credit Risk Interestsin each case, Buy/Sell Interests or Spread Appreciated Interestsas permitted by the Indenture;
(c) making determinations effecting or directing the purchase of Mortgage Assets and Eligible Investments, effecting or directing the sale of Mortgage Assets and Eligible Investments and effecting or directing the investment or reinvestment of proceeds therefrom in Reinvestment Mortgage Assets and Exchange Mortgage Assets, as permitted by the Indenture;
(d) negotiating with issuers of Mortgage Assets as to proposed modifications or waivers of the documentation governing such Mortgage Assets;
(e) taking action, or advising the Trustee with respect to the actions to be taken, with respect to the Issuer’s exercise of or waiver of any rightsrights (including, including but not limited to without limitation, voting rights, tender rights and rights arising in connection with the bankruptcy or insolvency of an issuer of a Mortgage Asset or the consensual or non-judicial restructuring of the debt or equity of an issuer of a Mortgage Asset) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesMortgage Assets and Eligible Investments, 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, an Operating Advisor or a Controlling Class Representative or similar entity, to exercise such right on behalf of the Issuer provided in accordance with the terms of the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO SecuritiesAsset Documents, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS any Mortgage Asset, or taking any other action with respect to 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), 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 Mortgage Assets, if applicable, and estimating the ratings that such Rating Agency would assign to prospective Mortgage Assets, as permitted or required under the Indenture;
(g) determining whether specific Mortgage Assets (or, for Participations, the related Participated Mortgage Loans) are Credit Risk Mortgage Loans or Defaulted Mortgage Loans and determining whether such Mortgage Assets, and any other Mortgage Assets that are permitted or required to be sold pursuant to the Indenture, should be sold, and directing the Trustee to effect a disposition of any such Mortgage Assets, subject to, and in accordance with the Indenture; and if a Mortgage Asset that is a Defaulted Mortgage Asset is not sold or otherwise disposed of by the Issuer within three years of such Mortgage Asset becoming a Defaulted Mortgage Asset, using commercially reasonable efforts to cause the Issuer to sell or otherwise dispose of such Mortgage Asset as soon as commercially practicable thereafter;
(h) monitoring the Mortgage Assets on an ongoing basis and 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 Mortgage Assets and that the Issuer is required to prepare and deliver under the Indenture, that are not prepared and delivered by the Note Administrator on behalf of the Issuer under the Indenture, 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 to the Note Administrator as specified in Section 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, including the limitations relating to the Acquisition Criteria, the Eligibility Criteria, the Note Protection 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 Mortgage Assets or Eligible Investments, which may include directing the Special Servicer to enter into Administrative Modifications and Criteria-Based Modifications (as defined in the Servicing Agreement);
(j) providing notification, in writing, to the Trustee, the Note Administrator, the Loan Agent and the Issuer upon receiving actual notice that a Mortgage Asset (or, for a Participation, the related Participated Mortgage Loan) has become a Defaulted Mortgage Loan or a Credit Risk 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 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) whether, in light of the composition of Mortgage Assets, general market conditions and other factors considered pertinent by the Collateral Manager, investments in Reinvestment Mortgage Assets or Exchange Mortgage Assets would either be impractical or not beneficial to the Holders of the Class 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 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, direct the Issuer to establish a Permitted 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
(ms) complying in accordance with the other duties Collateral Management Standard (but subject to the applicable provisions of the Servicing Agreement), enforcing the rights of the Issuer as holder of the Mortgage Assets, 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 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 responsibilities 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 expressly assigned Manager’s duties provided for in this Agreement, including the following powers: (i) to buy, sell, exchange, and convert Mortgage Assets (including Reinvestment 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 Collateral Manager under extent reasonably necessary, appropriate and customary to perform the Indenture. In addition, during the Reinvestment Period the Collateral Manager shall, subject services referred to the conditions in (a) through (t) above of this Section 1 and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility of the Income Noteholders 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. 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 shallor a purchaser of a 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 proper bills of sale, assignments, releases and other instruments as may be designated in rendering any such request. In performing its services duties hereunder, the Collateral Manager shall use 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 Class 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 in accordance with this Agreementreasonable care and in good faith, use using a degree of skill and attention no less than that which the Collateral Manager 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 others, and in accordance a manner consistent with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, 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 InterestsCollateral, except as expressly provided otherwise in this Agreement or in the IndentureIndenture and without regard to any conflicts of interest to which it may be subject (the “Collateral Management Standard”). The In addition, the Collateral Manager shall follow use its customary standardsbest efforts to ensure that (i) inquiries are made, policies to the extent practicable, from sources normally available to it, with respect to the occurrence of any default or event of default in respect of any Mortgage Asset under any Asset Document and procedures (ii) commitments to purchase Mortgage Assets and practices and procedures followed Eligible Investments are made by prudent institutional managers the Collateral Manager only if, in the Collateral Manager’s best judgment at the time of national standing managing assets 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 nature and character of the Collateral Interests in performing its duties hereunderIndenture or this Agreement. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it the Collateral Manager under this Agreementthe Indenture (including those duties and functions described in Section 2.16 and Section 5.5(a)(iii) of the Indenture). 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 the Seller;
(f) the Person that originated any 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 amendment, supplement or modification to the Indenture until of which it has received written notice at least 10 Business Days prior to the execution and delivery thereof and until it has received a copy of by the amendment from the Issuer or the Trusteeparties thereto; provided, however, that with respect to any amendment amendment, supplement, modification or waiver to the Indenture which affects the rights, obligations or compensation of 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 have expressly consented thereto 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 to facilitate the perfection of the Trustee’s security interest in writingthe Collateral pursuant to the Indenture.
Appears in 1 contract
Sources: Collateral Management Agreement (Lument Finance Trust, Inc.)
Management Services. (a) The Company hereby appoints FS Energy and Power Fund as Collateral Manager pursuant to the terms and conditions of this Agreement and with the authority to service, administer and exercise rights and remedies, on behalf of the Company, in respect of the Collateral Portfolio. FS Energy and Power Fund hereby accepts such appointment and agrees to perform the duties and responsibilities of the Collateral Manager pursuant to the terms hereof. The Collateral Manager and the Company hereby acknowledge that the Administrative Agent and the Secured Parties are third party beneficiaries of the obligations undertaken by the Collateral Manager hereunder.
(b) The Collateral Manager will provide the Issuer Company with the following services (in accordance with and subject to the applicable requirements of of, and the Indenture restrictions and Servicing Agreementlimitations set forth in, the Transaction Documents and the LLC Agreement and subject to and consistent with the Collateral Management Standard):
(ai) identifying Collateral Interests to be sold and additional Collateral Interests determining the specific Loans or other assets to be purchased or sold by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the provisions of this Agreement and the Indenture (includingCompany, without limitation, the Eligibility Criteria and the Reinvestment Criteria), 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 Company on each Payment Date under the Indenture; providedLSA in so doing, however, such that expected distributions on the Collateral Manager does not hereby guarantee Loans and other assets of the Company permit a timely performance of such the payment obligationsobligations by the Company under the LSA;
(bii) determining whether Collateral Interests have become Defaulted Interests, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated Interestseffecting the purchase and sale of Loans and all other assets of the Company in accordance with the LSA;
(ciii) subject to the limitations set forth in the LSA, negotiating with Obligors as to proposed amendments and modifications (including, but not limited to, extensions or releases of collateral) of the documentation evidencing and governing the Loans;
(iv) making determinations and taking action, or advising the Trustee with respect to the actions to be taken, with respect to the IssuerCompany’s exercise of or waiver of any rights(including, including but not limited to to, any waiver, modification or variation of any provision of an item of Collateral Portfolio unless such waiver, modification or variation would materially impair the collectability of the Collateral Portfolio) of any rights (including, but not limited to, voting rights, rights and rights arising in connection with the bankruptcy or insolvency of an Obligor or the consensual or non-judicial restructuring of the debt or equity of an Obligor) or remedies in connection with the Collateral Interests;
(d) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, 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, 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 Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing Agreement;
(e) (i) with respect to Collateral Interests that are CMBS Securities or CRE CDO Securities, determining whether to approve or consent to any amendment, modification, sale or liquidation, or forgiveness of any payment on, the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise of the Issuer’s approval or consent rights pursuant to the related 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested in connection with the Rating Agencies’ monitoring of the Collateral Interests;
(h) subject to confirmation from the CDO Special Servicer, advancing, on behalf of the Issuer, any Cure Advance to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 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 and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture Loans and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer Obligor;
(v) monitoring the Loans and the rest of CMBS Securitiesthe Collateral Portfolio on an ongoing basis and providing to the Administrative Agent and the Company or to any other Person designated by the Company all information and data which is generated by, or reasonably accessible to, the Collateral Manager and which is required under the LSA or requested by the Company in connection with the preparation of all reports, certificates, schedules and other data which the Company is required to prepare and deliver under the LSA, in the form and containing all information required by the LSA, in sufficient time for the Company, or the Person designated by the Company (including, but not limited to, the Collateral Custodian), to review such data and prepare and deliver to the parties entitled thereto all such reports, certificates, schedules and other data required by the LSA; and
(mvi) complying maintaining or causing to be maintained all necessary servicing records with respect to the Collateral Portfolio and maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other duties and responsibilities information reasonably necessary or advisable for the collection of the Collateral Portfolio.
(c) The Company agrees for the benefit of the Collateral Manager expressly assigned and the Administrative Agent to follow the lawful instructions and directions of the Collateral Manager under in connection with the Indenture. In addition, during the Reinvestment Period Collateral Manager’s services hereunder.
(d) If (i) the Collateral Manager shall, subject makes a deposit into the Collection Account in respect of an Interest Collection or Principal Collection of a Loan and such Interest Collection or Principal Collection was received by it in the form of a check that is not honored for any reason or (ii) the Collateral Manager makes a mistake with respect to the conditions amount of any Interest Collection or Principal Collection and under deposits an amount that is less than or more than the limited actual amount of such Interest Collection or Principal Collection, it shall appropriately adjust the amount subsequently deposited into the Collection Account to reflect such dishonored check or mistake. Any Scheduled Payment in respect of which a dishonored check is received shall be deemed not to have been paid.
(e) The Collateral Manager may, in its discretion and consistent with the Collateral Management Standard and the applicable Underlying Instrument, foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Loan as to which no satisfactory arrangements can be made for collection of delinquent payments; provided that the Company will promptly reimburse the Collateral Manager for any reasonable costs and expenses incurred in connection with the foregoing. The Collateral Manager will comply with the Collateral Management Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including reasonable efforts consistent with the Collateral Management Standard to enforce all obligations of Obligors foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent has specifically given instruction to the contrary, the Collateral Manager may cause the sale of any such Underlying Collateral to itself or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of an Authorized Person of the Collateral Manager delivered to the Administrative Agent setting forth the Loan, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Collateral Manager will not expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral unless it reasonably determines that such repair and/or foreclosure or repossession will increase the Recoveries by an amount greater than the amount of such expenses. The Collateral Manager will remit to the Collection Account the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Loan.
(f) The Collateral Manager shall (i) engage the Collateral Advisor and the Collateral Sub-Advisor to perform duties and responsibilities as set forth in the IndentureAdvisory Agreements, be permitted to(ii) ensure that the Collateral Advisor and the Collateral Sub-Advisor have the authority to service, administer and is hereby authorized toexercise rights and remedies, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility on behalf of the Income Noteholders Company, in respect of the Collateral Portfolio and any such obligation (iii) use its best efforts to make Interest Advances shall be the exclusive responsibility of CBRE Realty Finance, Inc., and any successor thereto as Advancing Agent cause each other Borrower Advisor to render services under the Indenture. The Collateral Manager shall, in rendering its services Advisory Agreements in accordance with this Agreement, use a degree of skill and attention no less than that which the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures relating to assets of the nature and character of the Collateral Interests, except as expressly provided otherwise in this Agreement or the Indenture. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunder. Management Standard.
(g) The Collateral Manager shall comply with all of the terms and conditions of and perform all the duties and functions that have been specifically delegated to it under this Agreement. The Company agrees that it will promptly provide a copy of each amendment to the LSA to the Collateral Manager and will not permit any amendment to the LSA that adversely affects in any material respects the duties or liabilities of the Collateral Manager to become effective unless the Collateral Manager has been given prior written notice of such amendment and consented thereto in writing. The Collateral Manager shall cause any purchase or sale of any Collateral Interest Loans or other assets of the Company to be conducted on an arm’s length basis or on terms that would be obtained in accordance an arm’s length transaction in compliance with Section 2 and Section 8.
(h) To the procedures set forth in extent necessary or appropriate to perform all of the Indenture. The duties to be performed by it hereunder, the Collateral Manager shall have the right power to obtain any information relating to the Collateral Interests directly from the applicable lendernegotiate, borrower or issuer execute and is hereby authorized to take deliver all reasonable actions necessary to accomplish the foregoing. The Collateral Manager agrees documents and consents to the provisions contained in Section 15.1(f) instruments on behalf 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 Company with respect to any particular transaction;Loan or other asset of the Company.
(di) the ownership or servicing or management for others, by the Collateral Manager, or any of its Affiliates of any other assets of similar nature Notwithstanding anything to the Collateral Interests;
(e) any repurchase or indemnity obligation on the part of the Seller;
(f) the Person that originated any 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. Howevercontrary herein, the Collateral Manager shall not only be bound permitted to follow any amendment to the Indenture until it has received written notice thereof and until it has received a copy of the amendment from the Issuer or the Trustee; provided, however, that take actions hereunder with respect to any amendment asset of the Company permitted by this Agreement or to the Indenture which affects extent that the rightsCompany is expressly permitted to take such actions under the LSA.
(j) In addition to, obligations or compensation and without limiting, the duties set forth in this Section 1, the Collateral Manager acknowledges that the Company is required to cause it to deliver the items specified in the following sections of the LSA: Section 6.07, Section 6.08 and Section 6.09, and the Collateral Manager acknowledges that it has read and understood the requirements of the foregoing sections and hereby agrees to deliver those specified items subject to and in accordance with the terms of such sections and this Agreement; provided that, if any such item allows the Collateral Manager to exercise discretion with respect to the content thereof, such discretion shall be subject to the Collateral Management Standard. For the avoidance of doubt, no calculation required under the above referenced sections (including, without limitation, a calculation of the Borrowing Base) is a discretionary act of the Collateral Manager.
(k) In addition to, and without limiting, the duties set forth in this Section 1, the Collateral Manager shall not be bound thereby unless acknowledges that the Company is authorized or required to cause it to perform functions specified in the following sections of the LSA: the definitions of “Assigned Value”, “Borrowing Base Certificate”, “Collateral Coverage Ratio”, “Credit Risk Loan”, “Current Ratio”, “First Lien Energy Loan”, “Insurance Proceeds”, “Recoveries”, “Senior Net Leverage Ratio”, “Second Lien Energy Loan”, “Senior Secured Bond”, “Senior Secured Loan”, “Total Net Leverage Ratio”, and clause (z) of the definition of “Loan Tape”, each in Section 1.01, Section 2.04(b)(ii), Section 2.06(c), Section 2.15(a), Section 2.18 and Section 2.19, and the Collateral Manager shall have expressly consented thereto acknowledges that it has read and understood the requirements of the foregoing sections and hereby agrees to perform those specified functions subject to and in writingaccordance with the terms of this Agreement and subject to and consistent with the Collateral Management Standard.
Appears in 1 contract
Sources: Collateral Management Agreement (FS Energy & Power Fund)
Management Services. The Collateral Manager will Supply hereby appoints the Manager, as manager, to provide the Issuer with Management Services. The Manager hereby agrees to such appointment. The Manager hereby agrees to perform all of the following services (in accordance with the “Management Services”) at its sole cost and subject to the applicable requirements of the Indenture expense, except as may otherwise be provided herein, and Servicing Agreement):
(a) identifying Collateral Interests to be sold and additional Collateral Interests to be purchased by the Issuer during the Ramp-Up Period and the Reinvestment Period in accordance with the 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 value of the Supply Assets;
(ii) to cause Supply to enter into, enforce its rights under and comply with the provisions of this the Manufacturing Agreement and the Indenture (including, without limitation, the Eligibility Criteria Supply and License Agreement and the Reinvestment Criteria)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 timing thereof Supply and License Agreement consistent with a view to maximizing the recovery on such Collateral Interests and taking into consideration the payment obligations exercise of the Issuer under the Indenture; provided, however, that the Collateral Manager does not hereby guarantee the timely performance of such payment obligationssound business judgment;
(iii) to coordinate distribution of product sold to franchisees pursuant to the Supply and License Agreement, and to b) determining whether Collateral Interests have become Defaulted Interests, Credit Risk Interests, Buy/Sell Interests or Spread Appreciated Interests▇▇▇ and collect accounts receivable from franchisees in connection with the same;
(civ) making determinations to cause Supply to enter into, enforce its rights under and taking actioncomply with the provisions of a Back-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, or advising the Trustee including with respect to the actions 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 be taken, Manage the Supply Assets;
(vii) to protect and defend the Supply Assets;
(viii) to enforce and collect payment of the amount owing on each 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 Issuer’s exercise of Receivables or waiver of any rights, including but not limited to voting rights, or remedies in connection with the Collateral InterestsOther Amounts;
(dx) (i) with respect to Collateral Interests that are CMBS Securities enforce the terms of all Contracts related to the Receivables or CRE CDO Securities, 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, an Operating Advisor or a Controlling Class Representative or similar entityOther Amounts, to exercise such right on behalf of the Issuer extent authorized, in accordance with the terms of such Contracts and the documents providing such rights and (ii) with respect to Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, to consult with and advise the applicable CDO Servicer with respect to such CDO Servicer’s exercise terms of the Issuer’s voting or control rights with respect to such Collateral Interests pursuant to the related Servicing AgreementTransaction Documents;
(exi) (i) with respect to maximize income derived from the Supply Assets or Other Collateral Interests that are CMBS Securities or CRE CDO Securitiesand, determining whether to approve or consent to any amendmentin doing so, modification, sale or liquidation, or forgiveness of any payment on, avoid impairing the Collateral Interests or whether to give any other approval or consent permitted or required under the applicable Underlying Instrument, to the extent such approval is required or permitted and delivering such approval or consent, as applicable and (ii) with respect to certain Collateral Interests that are Whole Loans, Mezzanine Loans, B Notes and Participations, consulting with, and advising the applicable CDO Servicer with respect to such CDO Servicer’s exercise value of the Issuer’s approval Supply Assets or consent rights pursuant to the related Servicing AgreementOther Collateral;
(fxii) to maintain separate, complete and accurate books and records 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; 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 Servicing Agreement relating to such special servicer qualifications or receives Ratings Confirmation.
(g) consulting with any rating agencies rating any Class of Notes (the “Rating Agencies”) at such times as may be reasonably requested by the Rating Agencies and providing the Rating Agencies with any information in its possession reasonably requested transactions contemplated hereunder in connection with the Rating Agencies’ monitoring of Supply Assets and the Collateral InterestsOther Collateral;
(hxiii) subject to confirmation from deliver electronically or otherwise to any Back up Manager, the CDO Special ServicerAgent and Supply on a calendar quarterly basis an informational listing of any additions, advancingsubtractions or changes to the 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;
(xiv) to take any and all actions on behalf of Supply which may be necessary, required, convenient or incidental to cause the business to be conducted utilizing the Supply Assets and the Other Collateral to comply with all Applicable Laws and regulations, and to take all reasonable steps in this regards;
(xv) to comply, on behalf of the IssuerSupply, as applicable, in all material respects, with all obligations, if any, under any Cure Advance Contract to cure an Event of Default pursuant to Section 17.3 of the Indenture;
(i) subject to confirmation from the CDO Special Servicer, determining whether a Nonrecoverable Cure Advance has been made, or if a proposed Cure Advance if made would constitute a Nonrecoverable Cure Advance, pursuant to Section 17.3 of the Indenture;
(j) on or prior to any day which Supply is a Redemption Date for the Notes, directing the Trustee to dispose of the Collateral Interests and any other Collateral pursuant to the Indenture and otherwise comply with all redemption procedures and certification requirements in the Indenture in order to allow the Trustee to effect such redemption;
(k) monitoring the Collateral Interests on an ongoing basis to the extent necessary to fulfill its duties under this Agreement and, upon request, providing to the Issuer or the Trustee information with respect to the Collateral Interests in its possession as may be required to enable the Issuer and the Trustee to prepare the reports required under Section 10.14 of the Indenture;
(l) selecting Eligible Investments for purchase by the Trustee in accordance with the Indenture and participating in the committees (official or otherwise) or other groups formed by creditors of an issuer of CMBS Securitiesparty; and
(mxvi) complying to record ownership changes, and other conveyances, in connection with the other duties and responsibilities Supply Assets. The list of Management Services may be amended from time to time by mutual agreement of the Collateral Manager expressly assigned to the Collateral Manager under the Indenture. In additionand Supply, during the Reinvestment Period the Collateral Manager shall, but subject to the conditions and under the limited circumstances set forth in the Indenture, be permitted to, and is hereby authorized to, direct the Trustee to sell certain Collateral Interests in Discretionary Sales. For the avoidance of doubt, notwithstanding anything to the contrary herein or in the Indenture, Collateral Manager shall not have any obligation whatsoever for the making of any advances, including Cure Advances and Interest Advances. Any such obligation to make Cure Advances shall be the exclusive responsibility prior written consent of the Income Noteholders 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. The Collateral Manager shall, in rendering its services in accordance with this Agreement, use a degree of skill and attention no less than that which the Collateral Manager exercises with respect to comparable assets that it manages for itself and for others in accordance with applicable law, the specific laws of the Underlying Instruments relating to the Collateral Interests, its existing practices and procedures relating to assets of the nature and character of the Collateral Interests, except as expressly provided otherwise in this Agreement or the Indenture. The Collateral Manager shall follow its customary standards, policies and procedures and practices and procedures followed by prudent institutional managers of national standing managing assets of the nature and character of the Collateral Interests in performing its duties hereunder. The Collateral Manager shall comply with and perform all the duties and functions that have been specifically delegated to it under this 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 the Seller;
(f) the Person that originated any 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 to the Indenture until it has received written notice thereof and until it has received a copy of the amendment from the Issuer or the Trustee; provided, however, that with respect to any amendment to the Indenture which affects the rights, obligations or compensation of the Collateral Manager, the Collateral Manager shall not be bound thereby unless the Collateral Manager shall have expressly consented thereto in writingAgent.
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