Dated as of March 17, 2006 N-STAR REL CDO VI LTD., as Issuer N-STAR REL CDO VI LLC, as Co-Issuer NS ADVISORS, LLC, as Advancing Agent and WELLS FARGO BANK, NATIONAL ASSOCIATION as Trustee
Exhibit 10.16
EXECUTION COPY
Dated as of March 17, 2006
N-STAR REL CDO VI LTD.,
as Issuer
N-STAR REL CDO VI LLC,
as Co-Issuer
NS ADVISORS, LLC,
as Advancing Agent
and
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
as Trustee
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TABLE OF CONTENTS
Section |
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Page |
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PRELIMINARY STATEMENT |
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1 |
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GRANTING CLAUSES |
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1 |
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ARTICLE I Definitions and Interpretation |
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3 |
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1.1. |
Definitions |
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3 |
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1.2. |
Assumptions as to Collateral Interests, Fees, Etc. |
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60 |
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1.3. |
Rules of Construction |
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62 |
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ARTICLE II The Indenture Issued Notes |
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62 |
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2.1. |
Forms Generally |
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62 |
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2.2. |
Authorized Amount; Applicable Periodic Interest Rate; Stated Maturity Date; Denominations |
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64 |
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2.3. |
Execution, Authentication, Delivery and Dating |
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65 |
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2.4. |
Registration, Transfer and Exchange of Indenture Issued Notes |
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66 |
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2.5. |
Mutilated, Defaced, Destroyed, Lost or Stolen Indenture Issued Notes |
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76 |
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2.6. |
Payment of Principal and Interest; Rights Preserved |
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77 |
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ARTICLE III Conditions Precedent |
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84 |
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3.1. |
General Provisions |
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84 |
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3.2. |
Security for the Indenture Issued Notes |
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87 |
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3.3. |
Custodianship; Transfer of Collateral Interests and Eligible Investments |
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88 |
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ARTICLE IV Satisfaction and Discharge |
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91 |
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4.1. |
Satisfaction and Discharge of Indenture |
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91 |
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4.2. |
Application of Trust Money |
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93 |
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4.3. |
Repayment of Funds Held by Note Paying Agent |
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93 |
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ARTICLE V Events of Default; Remedies |
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93 |
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5.1. |
Events of Default |
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93 |
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5.2. |
Acceleration of Maturity; Rescission and Annulment |
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95 |
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5.3. |
Collection of Indebtedness and Suits for Enforcement by Trustee |
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96 |
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5.4. |
Remedies |
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98 |
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5.5. |
Preservation of Collateral |
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100 |
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5.6. |
Trustee May Enforce Claims Without Possession |
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102 |
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5.7. |
Application of Funds Collected |
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102 |
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5.8. |
Limitation on Suits |
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102 |
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5.9. |
Unconditional Rights of Rated Noteholders (other than the Class |
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K Noteholders) to Receive Principal and Interest |
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103 |
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5.10. |
Restoration of Rights and Remedies |
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103 |
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5.11. |
Rights and Remedies Cumulative |
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104 |
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5.12. |
Delay or Omission Not Waiver |
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104 |
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5.13. |
Control by Majority of Noteholders |
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104 |
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5.14. |
Waiver of Past Defaults |
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104 |
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5.15. |
Undertaking for Costs |
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105 |
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5.16. |
Waiver of Stay or Extension Laws |
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105 |
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5.17. |
Sale of Collateral |
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106 |
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TABLE OF CONTENTS
(continued)
Section |
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Page |
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5.18. |
Action on the Rated Notes |
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106 |
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ARTICLE VI The Trustee |
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107 |
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6.1. |
Certain Duties and Responsibilities |
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107 |
6.2. |
Notice of Default |
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109 |
6.3. |
Certain Rights of Trustee |
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109 |
6.4. |
Authenticating Agents |
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111 |
6.5. |
Not Responsible for Recitals or Issuance of Rated Notes |
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111 |
6.6. |
May Hold Rated Notes |
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111 |
6.7. |
Funds Held in Trust |
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112 |
6.8. |
Compensation and Reimbursement |
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112 |
6.9. |
Corporate Trustee Required; Eligibility |
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113 |
6.10. |
Resignation and Removal; Appointment of Successor |
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114 |
6.11. |
Acceptance of Appointment by Successor |
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115 |
6.12. |
Merger, Conversion, Consolidation or Succession to Business of Trustee |
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115 |
6.13. |
Co-Trustees |
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115 |
6.14. |
Certain Duties Related to Delayed Payment of Proceeds; Other Notices |
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116 |
6.15. |
Representations and Warranties of the Bank |
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117 |
6.16. |
Exchange Offers, Proposed Amendments etc. |
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117 |
6.17. |
Fiduciary for Rated Noteholders Only; Agent For Other Secured Parties |
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118 |
6.18. |
Withholding |
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118 |
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ARTICLE VII Covenants |
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118 |
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7.1. |
Payment of Principal and Interest |
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118 |
7.2. |
Maintenance of Office or Agency |
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119 |
7.3. |
Funds for Rated Note Payments to be Held in Trust |
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120 |
7.4. |
Existence of Co-Issuers |
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121 |
7.5. |
Protection of Collateral |
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122 |
7.6. |
Opinions as to Collateral |
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123 |
7.7. |
Performance of Obligations |
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123 |
7.8. |
Negative Covenants |
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125 |
7.9. |
Statement as to Compliance |
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126 |
7.10. |
Co-Issuers May Consolidate, Etc., Only on Certain Terms |
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126 |
7.11. |
Successor Substituted |
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129 |
7.12. |
No Other Business |
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129 |
7.13. |
Change or Withdrawal of Rating |
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130 |
7.14. |
Reporting |
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130 |
7.15. |
Rated Note Calculation Agent |
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130 |
7.16. |
Listing |
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131 |
7.17. |
Amendment of Certain Documents |
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131 |
7.18. |
Purchase of Collateral; Information Regarding Collateral; Rating Confirmation |
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131 |
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ARTICLE VIII Supplemental Indentures |
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133 |
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8.1. |
Supplemental Indentures Without Consent of Rated Noteholders |
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133 |
8.2. |
Supplemental Indentures with Consent of Rated Noteholders |
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136 |
8.3. |
Execution of Supplemental Indentures |
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138 |
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TABLE OF CONTENTS
(continued)
Section |
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Page |
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8.4. |
Effect of Supplemental Indentures |
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138 |
8.5. |
Reference in Indenture Issued Notes to Supplemental Indentures |
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138 |
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ARTICLE IX Redemption of Rated Notes |
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139 |
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9.1. |
Redemption of Rated Notes |
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139 |
9.2. |
Redemption Procedures; Auction |
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139 |
9.3. |
Record Date; Notice to Trustee of Redemption |
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141 |
9.4. |
Notice of Redemption |
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141 |
9.5. |
Notice of Withdrawal |
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142 |
9.6. |
Rated Notes Payable on Redemption Date |
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142 |
9.7. |
Special Amortization |
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142 |
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ARTICLE X Accounts, Accountings and Releases |
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143 |
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10.1. |
Collection of Funds |
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143 |
10.2. |
General Provisions Applicable to Accounts |
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144 |
10.3. |
Collateral Account |
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144 |
10.4. |
Uninvested Proceeds Account |
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145 |
10.5. |
Collection Account |
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145 |
10.6. |
Expense Reserve Account |
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146 |
10.7. |
Interest Reserve Account |
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147 |
10.8. |
Earn-Out Asset Account |
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147 |
10.9. |
Payment Account |
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148 |
10.10. |
Reports by Trustee |
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148 |
10.11. |
Accountings |
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149 |
10.12. |
Release of Securities |
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154 |
10.13. |
Reports by Independent Accountants |
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155 |
10.14. |
Reports to Rating Agencies |
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156 |
10.15. |
Tax Matters |
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156 |
10.16. |
[Reserved] |
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157 |
10.17. |
Interest Advances |
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157 |
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ARTICLE XI Application of Monies |
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160 |
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11.1. |
Disbursements of Funds from Payment Account; Priority of Payments |
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160 |
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ARTICLE XII Purchase and Sale of Collateral Interests |
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173 |
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12.1. |
Sale of Collateral Interests |
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173 |
12.2. |
Portfolio Characteristics |
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175 |
12.3. |
Conditions Applicable to all Transactions Involving Sale or Grant |
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180 |
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ARTICLE XIII Secured Parties’ Relations |
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181 |
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13.1. |
Subordination |
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181 |
13.2. |
Standard of Conduct |
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186 |
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ARTICLE XIV Miscellaneous |
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186 |
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14.1. |
Form of Documents Delivered to Trustee |
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186 |
14.2. |
Acts of Rated Noteholders |
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187 |
14.3. |
Notices, Etc., to Trustee, the Co-Issuers and the Rating Agencies |
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187 |
14.4. |
Notices and Reports to Rated Noteholders; Waiver |
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189 |
14.5. |
Effect of Headings and Table of Contents |
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190 |
iii
TABLE OF CONTENTS
(continued)
Section |
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Page |
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14.6. |
Successors and Assigns |
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190 |
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14.7. |
Severability |
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190 |
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14.8. |
Benefits of Indenture |
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190 |
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14.9. |
Governing Law |
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190 |
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14.10. |
Submission to Jurisdiction |
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190 |
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14.11. |
Counterparts |
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191 |
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14.12. |
Waiver of Jury Trial |
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191 |
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14.13. |
Judgment Currency |
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191 |
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14.14. |
Confidential Treatment of Documents |
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191 |
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ARTICLE XV |
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192 |
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15.1. |
Assignment |
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192 |
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15.2. |
No Impairment |
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192 |
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15.3. |
Termination, Etc. |
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192 |
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15.4. |
Issuer Agreements, Etc. |
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192 |
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ARTICLE XVI |
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193 |
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Hedge Agreements |
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193 |
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16.1. |
Hedge Agreements |
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193 |
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ARTICLE XVII |
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195 |
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Class A-R Notes |
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195 |
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17.1. |
Draws on the Class A-R Notes and Class A-R Commitment |
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195 |
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17.2. |
Class A-R Interest and Class A-R Commitment Fee |
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196 |
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17.3. |
Prepayments of Class A-R Notes |
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196 |
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17.4. |
Class A-R Rating Criteria |
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197 |
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17.5. |
Class A-R Holder Collateral Account |
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197 |
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Schedules |
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Schedule A |
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Schedule of Collateral Interests as of the Closing Date |
Schedule B |
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LIBOR Formula |
Schedule C |
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Xxxxx’x Recovery Rate Matrix |
Schedule D |
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S&P’s Recovery Rate Matrix |
Schedule E |
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Auction Procedures |
Schedule F |
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S&P’s Notching Criteria |
Schedule G |
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S&P’s Types of Asset-Backed Securities ineligible for Notching |
Schedule H |
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S&P’s Industry Classification Groups |
Schedule I |
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S&P’s Shadow Rating Grid |
Schedule J-1 |
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Form of S&P’s Representations, Warranties and Covenants for Commercial Mortgage Loans, Subordinate Mortgage Loan Interests And Mezzanine Loans |
Schedule J-2 |
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Form of S&P’s Representations, Warranties and Covenants for Credit Lease Loans and Tenant Lease Loan Interests |
Schedule J-3 |
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Form of S&P’s Representations, Warranties and Covenants for Preferred Equity Securities |
Exhibits |
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Exhibit A-1 |
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Form of Regulation S Global Note |
Exhibit A-2 |
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Form of Rule 144A Global Note |
Exhibit B |
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Form of Certificated Note |
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TABLE OF CONTENTS
(continued)
Section |
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Page |
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Exhibit C-1 |
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Form of Rule 144A Transfer Certificate |
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Exhibit C-2 |
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Form of Regulation S Transfer Certificate |
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Exhibit C-3 |
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Form of Certificated Note Transfer Certificate |
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Exhibit C-4 |
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Form of ERISA Restriction Certificate |
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Exhibit D |
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Form of Funding Certificate |
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Exhibit E-1 |
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Form of Opinion of Xxxxxxx Xxxxxxxx & Wood LLP |
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Exhibit E-2 |
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Form of Opinion of Walkers |
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Exhibit F |
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Form of Opinion of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. |
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Exhibit G |
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Form of Opinion of Xxxxxxx Xxxxxxxx & Wood LLP |
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Exhibit H |
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Rated Noteholder’ s Certificate |
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Exhibit I |
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Form of Class H Note or Class J Note Tax Transfer Certificate |
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v
THIS INDENTURE dated as of March 17, 2006 among:
N-STAR REL CDO VI LTD., an exempted company incorporated and existing under the law of the Cayman Islands;
N-STAR REL CDO VI LLC, a limited liability company organized and existing under the law of the State of Delaware;
NS ADVISORS, LLC a limited liability company organized and existing under the law of the State of Delaware; and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, organized under the law of the United States, as trustee.
PRELIMINARY STATEMENT
The Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) are duly authorized to execute and deliver this Indenture to provide for the issuance of the Indenture Issued Notes as provided in this Indenture. All covenants and agreements made by the Co-Issuers herein are for the benefit and security of the Secured Parties. The Co-Issuers are entering into this Indenture, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid agreement of the Co-Issuers in accordance with its terms have been done.
GRANTING CLAUSES
The Issuer hereby Grants to the Trustee, for the benefit and security of the Secured Parties, all of its right, title and interest in, to and under, in each case, whether now owned or existing, or hereafter acquired or arising, the following property (other than the Excepted Property): (a) the Collateral Interests listed on Schedule A, the Collateral Interests acquired after the Closing Date and any Equity Interests which, in each case, are delivered to the Trustee (directly or through a Securities Intermediary) after the Closing Date pursuant to the terms hereof and all payments thereon or with respect thereto, (b) the Collection Account (including each Sub-Account established therein), the Interest Reserve Account, the Payment Account, the Expense Reserve Account, the Collateral Account, the Uninvested Proceeds Account, the Earn-Out Asset Account, the Class A-R Holder Collateral Account, all amounts credited to such accounts, and Eligible Investments purchased with funds credited to such accounts and all income from the investment of funds therein, (c) the rights of the Issuer under each of the Transaction Documents to which the Issuer is a party and all payments to the Issuer thereunder or with respect thereto, (d) all Cash or other property delivered to the Trustee (directly or through a Securities Intermediary) and (e) all proceeds, whether voluntary or involuntary, of and to any of the property of the Issuer described in the preceding clauses (collectively, the Collateral); provided, that such security interest shall not extend to (i) any property, cash or other amounts specifically released from the lien of this Indenture or otherwise to be paid to the Issuer in accordance with the terms hereof or (ii) any Retained Rights. Such Grants are made to the Trustee to hold in trust, to secure the Indenture Issued Notes equally and ratably without prejudice, priority or distinction between any such Indenture Issued Note and any other such Indenture Issued Note by reason of difference in time of issuance or otherwise, except as expressly provided in this Indenture, and to secure (i) the payment of all amounts due on the Indenture Issued Notes and under any Hedge Agreement and the Collateral Management Agreement in accordance with their respective terms, (ii) the
payment of all other sums payable under this Indenture and (iii) compliance with the provisions of this Indenture, any Hedge Agreement, the Class A-R Note Purchase Agreement and the Collateral Management Agreement, all as provided in this Indenture (collectively, the Secured Obligations).
Except to the extent otherwise provided in this Indenture, the Issuer does hereby constitute and irrevocably appoint the Trustee as the true and lawful attorney of the Issuer, with full power (in the name of the Issuer or otherwise), to exercise all rights of the Issuer with respect to the Collateral held for the benefit and security of the Secured Parties and to ask, require, demand, receive, settle, compromise, compound and give acquittance for any and all moneys and claims for moneys due and to become due under or arising out of any of the Collateral held for the benefit and security of the Secured Parties, to endorse any checks or other instruments or orders in connection therewith and to file any claims or take any action or institute any proceedings which the Trustee may deem to be necessary or advisable in the premises. The power of attorney granted pursuant to this Indenture and all authority hereby conferred are granted and conferred solely to protect the Trustee’s interest in the Collateral held for the benefit and security of the Secured Parties and shall not impose any duty upon the Trustee to exercise any power. This power of attorney shall be irrevocable as one coupled with an interest prior to the payment in full of all the obligations secured hereby.
Except to the extent otherwise provided in this Indenture, this Indenture shall constitute a security agreement under the law of the State of New York. Upon the occurrence of any Event of Default and in addition to any other rights available under this Indenture or any other instruments included in the Collateral held for the benefit and security of the Secured Parties or otherwise available at law or in equity, the Trustee shall have all rights and remedies of a secured party on default under the law of the State of New York and other applicable law to enforce the assignments and security interests contained herein and, in addition, shall have the right, subject to compliance with any mandatory requirements of applicable law, to sell or apply any rights and other interests assigned or pledged hereby in accordance with the terms hereof at public or private sale.
It is expressly agreed that anything therein contained to the contrary notwithstanding, the Issuer shall remain liable under any instruments included in the Collateral to perform all the obligations assumed by it thereunder, all in accordance with and pursuant to the terms and provisions thereof, and except as otherwise expressly provided herein, the Trustee shall not have any obligations or liabilities under such instruments by reason of or arising out of this Indenture, nor shall the Trustee be required or obligated in any manner to perform or fulfill any obligations of the Issuer under or pursuant to such instruments or to make any payment, to make any inquiry as to the nature or sufficiency of any payment received by it, to present or file any claim, or to take any action to collect or enforce the payment of any amounts which may have been assigned to it or to which it may be entitled at any time or times.
The designation of the Trustee in any transfer document or record is intended and shall be deemed, first, to refer to the Trustee as custodian on behalf of the Issuer and second, to refer to the Trustee as secured party on behalf of the Secured Parties, provided that the Grant made by the Issuer to the Trustee pursuant to the granting clauses hereof shall apply to any Collateral bearing such designation.
The Trustee acknowledges such Grants, accepts the trust hereunder in accordance with the provisions hereof, and agrees to perform the duties herein in accordance with the required standard of care set forth herein such that the interests of the Secured Parties may be protected.
Each of the Secured Parties hereby agrees and acknowledges that it shall not have any claim on the funds and property from time to time deposited in or credited to the Income Note Distribution Account and the proceeds thereof.
2
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
Except as otherwise specified herein or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Indenture. Whenever any reference is made to an amount the determination of which is governed by Section 1.2, the provisions of Section 1.2 shall be applicable to such determination or calculation, whether or not reference is specifically made to Section 1.2, unless some other method of calculation or determination is expressly specified in the particular provision. In the case of Preferred Equity Securities, whenever any reference is made to payments of interest with respect to a Collateral Interest, payments of dividends or other distributions not attributable to the return of capital by the related Underlying Instruments, shall be applicable to such determination or calculation. In the case of Preferred Equity Securities, whenever any reference is made to payments of principal with respect to a Collateral Interest, distributions attributable to the return of capital by their Underlying Instruments shall be applicable to such determination or calculation. In addition, terms defined in Article 9 of the UCC and used but not capitalized herein have the meanings assigned thereto in Article 9 of the UCC.
Account means any of the Collection Account (including each Collateral Sub-Account established therein), the Collateral Account, the Uninvested Proceeds Account, the Payment Account, the Interest Reserve Account, the Earn-Out Asset Account, the Class A-R Holder Collateral Account and the Expense Reserve Account (including each Collateral Sub-Account established therein).
Account Control Agreement means that certain Account Control Agreement, dated as of the Closing Date, as the same may be amended or supplemented from time to time, among the Issuer, the Trustee and the Custodian.
Accountant’s Report means a report of a firm of Independent certified public accountants of recognized national reputation appointed by the Issuer (or the Collateral Manager on its behalf) on the Closing Date pursuant to Section 10.13(a), which may be the firm of Independent accountants that reviews or performs procedures with respect to the financial reports prepared by the Issuer.
Act has the meanings specified in Section 14.2.
Administrative Expenses means amounts (including any applicable indemnities) due from, or accrued for, the account of the Co-Issuers with respect to any Payment Date to (i) the Trustee for Trustee Expenses and the Trustee Interest Advance Fee and the Underlying Trustee for Underlying Trust Expenses; (ii) the PAA Issued Note Paying Agent pursuant to the Paying Agency Agreement; (iii) the Collateral Administrator pursuant to the Collateral Administration Agreement; (iv) the independent accountants, agents and counsel of the Co-Issuers for fees and expenses (including, without limitation, tax reports); (v) the Rating Agencies for fees and expenses in connection with any Class of Notes rated by each such Rating Agency (including, without limitation, expenses for credit estimates and ongoing surveillance of the ratings of the Notes); (vi) the Administrator pursuant to the Corporate Services Agreement; (vii) the Collateral Manager and its counsel for fees, expenses and indemnities under the Transaction Documents to the extent set forth therein (including, without limitation, amounts payable under the Collateral Management Agreement but excluding the Collateral Management Fee); (viii) any other Person in respect of any governmental fee, charge or tax (including all filing, registration and annual
3
return fees payable to the Cayman Islands’ government and registered office fees); (ix) any servicer of any Collateral Interest owned directly by the Issuer to the Servicers pursuant to the Servicing Agreements (to the extent payment of such amounts is not otherwise provided for in the Servicing Agreements); (x) to the Advancing Agent for the Advancing Agent Fee; (xi) the Class A-R Note Agent pursuant to the Class A-R Note Purchase Agreement and (xii) any other Person in respect of any other fees or expenses permitted under this Indenture and the documents delivered pursuant to or in connection with this Indenture, the Paying Agency Agreement, the Collateral Management Agreement and the Notes; provided that Administrative Expenses may not include any amounts due or accrued with respect to the actions taken on, or prior to, the Closing Date and any Class A-R Commitment Fees, Class A-R Increased Costs or Class A-R Breakage Costs.
Administrator means Walkers SPV Limited and any successor thereto appointed under the Corporate Services Agreement.
Advancing Agent means NS Advisors, LLC and any successor or successors thereto.
Advancing Agent Fee means, a per annum fee payable to the Advancing Agent on each Payment Date in accordance with the Priority of Payments equal to 0.00125% of the outstanding principal amount of the Class A Notes (assuming for the purposes of this calculation that the Class A-R Notes are fully drawn) and Class B Notes immediately prior to such Payment Date.
Affected Party has the meaning given to such term in the standard form 1992 ISDA Master Agreement (Multicurrency-Cross Border).
Affiliate means any person, directly or indirectly through one or more intermediaries, controlling, controlled by or under common control with the person; provided that (i) with respect to the Issuer, “Affiliate” shall be deemed not to include Walkers SPV Limited or any entity which Walkers SPV Limited controls and (ii) control of a person shall mean the power, direct or indirect, (a) to vote more than 50% of the securities having ordinary voting power for the election of directors of such person or (b) to direct or cause the direction of the management and policies of such person whether by contract or otherwise.
Agency MBS Security means obligations of (A) the Federal National Mortgage Association, (B) the Federal Home Loan Mortgage Corporation or (C) the Government National Mortgage Association, in each case with a stated maturity that does not exceed the Stated Maturity Date and a long-term credit rating of “AAA” by S&P.
Agent Members means members of, or participants in, the Clearing Agencies.
Aggregate Class A-R Undrawn Amount means at any time, the excess, if any, of the aggregate amount of the Class A-R Commitments over the Aggregate Outstanding Amount of the Class A-R Notes.
Aggregate Fees and Expenses means, on any Payment Date, the sum of (i) the Trustee Fee with respect to such Payment Date and any unpaid Trustee Fee accrued with respect to a previous Payment Date, (ii) the PAA Issued Note Paying Agent Fee with respect to such Payment Date and any unpaid PAA Issued Note Paying Agent Fee accrued with respect to a previous Payment Date, (iii) the Senior Collateral Management Fee and all expenses of the Collateral Manager payable by the Issuer pursuant to the Collateral Management Agreement with respect to such Payment Date and any unpaid Senior Collateral Management Fee and unpaid expenses of the Collateral Manager accrued with respect to a previous Payment Date, (iv) the Trustee Expenses and other expenses (including other Administrative Expenses) of the Co-Issuer (including the fees to be paid to the Cayman Islands Stock Exchange), (v) taxes payable by
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the Co-Issuers, if any, (vi) the Underlying Trust Expenses and (vii) all other expenses of the Co-Issuers (including, without limitation, Administrative Expenses) payable on such Payment Date pursuant to Sections 11.1(a)(1) and 11.1(b)(1) (in each case to the extent not included in clauses (i) through (vi) above).
Aggregate Outstanding Amount means, when used with respect to any of the Rated Notes (other than the Class A-R Notes) at any time, the aggregate principal amount of such Rated Notes Outstanding at such time and, with respect to the Class A-R Notes, the Average Drawn Class A-R Note Portion of the Class A-R Notes with respect to the related Interest Period; provided, that with respect to any action, consent, vote or waiver by any Class or Classes of Noteholders, the Aggregate Outstanding Amount of the Class A-R Notes shall include any unfunded Class A-R Commitments (except as provided in the foregoing sentence and as otherwise provided herein, the Aggregate Outstanding Amount of the Notes at any time shall not include any unfunded Class A-R Commitments). Except as otherwise provided herein, (i) the Aggregate Outstanding Amount of any Class C Notes at any time shall include the Class C Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class C Notes at such time, (ii) the Aggregate Outstanding Amount of any Class D Notes at any time shall include the Class D Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class D Notes at such time, (iii) the Aggregate Outstanding Amount of any Class E Notes at any time shall include the Class E Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class E Notes at such time, (iv) the Aggregate Outstanding Amount of any Class F Notes at any time shall include the Class F Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class F Notes at such time, (v) the Aggregate Outstanding Amount of any Class G Notes at any time shall include the Class G Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class G Notes at such time, (vi) the Aggregate Outstanding Amount of any Class H Notes at any time shall include the Class H Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class H Notes at such time, (vii) the Aggregate Outstanding Amount of any Class J Notes at any time shall include the Class J Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class J Notes at such time and (viii) the Aggregate Outstanding Amount of any Class K Notes at any time shall include the Class K Cumulative Applicable Periodic Interest Shortfall Amount with respect to such Class K Notes at such time.
Applicable Periodic Interest Rate means, for any Interest Period, (i) with respect to the Class A-1 Notes, the applicable Class A-1 Note Interest Rate, (ii) with respect to the Class A-R Notes, the applicable Class A-R Note Interest Rate, (iii) with respect to the Class A-2 Notes, the applicable Class A-2 Note Interest Rate, (iv) with respect to the Class B Notes, the applicable Class B Note Interest Rate, (v) with respect to the Class C Notes, the applicable Class C Note Interest Rate, (vi) with respect to the Class D Notes, the applicable Class D Note Interest Rate, (vii) with respect to the Class E Notes, the applicable Class E Note Interest Rate, (viii) with respect to the Class F Notes, the applicable Class F Note Interest Rate, (ix) with respect to the Class G Notes, the applicable Class G Note Interest Rate, (x) with respect to the Class H Notes, the applicable Class H Note Interest Rate, (xi) with respect to the Class J Notes, the applicable Class J Note Interest Rate and (xii) with respect to the Class K Notes, the applicable Class K Note Interest Rate.
Applicable Recovery Rate means, with respect to any Collateral Interest on any Measurement Date, the lesser of the Xxxxx’x Recovery Rate, the Fitch Recovery Rate and the S&P’s Recovery Rate applicable to such Collateral Interest on such date.
Articles means the Amended and Restated Memorandum and Articles of Association of the Issuer, filed under the Companies Law (2004 Revision) of the Cayman Islands, as modified and supplemented and in effect from time to time.
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Asset-Backed Securities are debt securities that entitle the holders thereof to receive payments that depend primarily on the cash flow from (i) a specified pool of financial assets, either fixed or revolving, that by their terms convert into cash within a finite time period, together with rights or other assets designed to assure the servicing or timely distribution of proceeds to holders of such securities (including, for the avoidance of doubt, leases) or (ii) real estate mortgages, either fixed or revolving, together with rights or other assets designed to assure the servicing or timely distribution of proceeds to the holders of such securities.
Asset Transfer Agreement means either Asset Transfer Agreement, dated as of March 17, 2006, as the same may be amended or supplemented from time to time, among the related Seller, the Depositor and NorthStar Realty Finance Corp.
Assumed Reinvestment Rate means, with respect to any Account or fund securing the Indenture Issued Notes, the greater of (i) LIBOR minus 1.0% and (ii) zero.
Auction has the meaning specified in Section 9.2.
Auction Call Redemption has the meaning specified in Section 9.1(c).
Auction Date has the meaning specified in Section 9.2; provided that, for the purposes of Section 5.5, “Auction Date” means the date upon which an Auction of the Collateral Interests is conducted in connection with an Event of Default.
Auction Procedures has the meaning specified in Section 9.2.
Auction Purchase Agreement has the meaning specified in Schedule E.
Authenticating Agent means, with respect to the Indenture Issued Notes or any Class of the Indenture Issued Notes, the Person designated by the Trustee, if any, to authenticate such Indenture Issued Notes on behalf of the Trustee pursuant to Section 6.4.
Authorized Officer means (i) with respect to the Issuer, any Officer of the Issuer who is authorized to act for the Issuer in matters relating to, and binding upon, the Issuer or any duly appointed attorney-in-fact of the Issuer, (ii) with respect to the Co-Issuer, any Officer who is authorized to act for the Co-Issuer in matters relating to, and binding upon, the Co-Issuer, (iii) with respect to the Collateral Manager, any officer of the Collateral Manager who is authorized to act for the Collateral Manager in matters relating to, and binding upon, the Collateral Manager, (iv) with respect to the Trustee or any other bank or trust company acting as trustee of an express trust or as custodian, a Trust Officer, (v) with respect to the PAA Issued Note Paying Agent, any officer who is authorized to act for the PAA Issued Note Paying Agent in matters relating to, and binding upon, the PAA Issued Note Paying Agent and (vi) with respect to the Advancing Agent, any Officer of the Advancing Agent who is authorized to act for the Advancing Agent in matters relating to, and binding upon, the Advancing Agent. Each party may receive and accept a certification of the authority of any other party as conclusive evidence of the authority of any person to act, and such certification may be considered as in full force and effect until receipt by such other party of written notice to the contrary.
Available Aggregate Class A-R Undrawn Amount means, as of any date, the lesser of (i)(A) the Aggregate Class A-R Undrawn Amount, less (B) the Total Unfunded Future Advance Amount, plus (C) the amount on deposit in the Earn-Out Asset Account and (ii) the Aggregate Class A-R Undrawn Amount.
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Available Funds means, with respect to any Payment Date, the amount of any positive balance of Cash or Eligible Investments in the Collection Account as of the Calculation Date relating to such Payment Date and, with respect to any other date, such amount as of that date.
Average Drawn Class A-R Note Portion means, with respect to any Payment Date or Class A-R Prepayment Date, the average daily Aggregate Outstanding Amount of the Class A-R Notes during the related Interest Period.
Average Life means, on any Calculation Date with respect to any Collateral Interest, the quotient obtained by the Collateral Manager by dividing (i) the sum of the products of (a) the number of years (rounded to the nearest one tenth thereof) from such Calculation Date to the respective dates of each successive distribution of principal of such Collateral Interest (assuming that (1) no Collateral Interests default or are sold and (2) any optional redemption of the Collateral Interests occurs in accordance with their respective terms) and (b) the respective amounts of principal of such scheduled distributions by (ii) the sum of all successive scheduled distributions of principal on such Collateral Interest.
Balance means at any time, with respect to Cash or Eligible Investments in any Account at such time, the aggregate of the (i) current balance of Cash, demand deposits, time deposits, certificates of deposit and federal funds; (ii) principal amount of interest-bearing corporate and government securities, money market accounts and repurchase obligations; and (iii) purchase price (but not greater than the face amount) of non-interest-bearing government and corporate securities and commercial paper.
Bank means Xxxxx Fargo Bank, National Association, a national banking association organized under the laws of the United States, in its individual capacity and not as Trustee.
Bankruptcy Code means the U.S. Bankruptcy Code, Title 11 of the United States Code, as amended or where the context requires, the applicable insolvency provisions of the laws of the Cayman Islands.
Beneficial Owner means, with respect to any Global Note, each Person that appears on the records of a Clearing Agency (other than each such Clearing Agency to the extent that it is an accountholder with the other Clearing Agency for the purpose of operating the “bridge” between them) as entitled to a particular amount of Indenture Issued Notes by reason of an interest in a Global Note (for all purposes other than with respect to the payment of principal of and interest on the Indenture Issued Notes, the right to which will be vested, as against the Issuer and the Trustee, solely in the Person in whose name the Global Note is registered in the Note Register (in the case of the Rated Notes) or the PAA Issued Note Register (in the case of the Class Notes or the Income Notes)); provided that the Trustee and the PAA Issued Note Paying Agent may conclusively rely upon the certificate of a Clearing Agency as to the identity of such Persons holding an interest in a Global Note.
Benefit Plan Investor means (i) an “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to Title I of ERISA, including without limitation governmental plans, foreign plans and church plans, (ii) a “plan” (as defined in Section 4975(e)(1) of the Code), whether or not subject to Section 4975 of the Code, including, without limitation, individual retirement accounts and Xxxxx plans or (iii) an entity whose underlying assets include plan assets by reason of such an employee benefit plan’s or plan’s investment in such entity, including, without limitation, as applicable, an insurance company general account.
Xxxx of Sale means that certain Xxxx of Sale, dated as of March 17, 2006, as the same may be amended or supplemented from time to time, between the Depositor and the Issuer.
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Board of Directors means, with respect to the Issuer, the directors of the Issuer duly appointed in accordance with the Articles.
Board Resolution means, with respect to the Issuer, a resolution of the Board of Directors of the Issuer.
Business Day means any day that is not a Saturday, Sunday or other day on which commercial banking institutions in New York, New York, Minneapolis, Minnesota, Columbia, Maryland or any other cities in which the Corporate Trust Office of the Trustee or the Advancing Agent is located are authorized or obligated by law or executive order to be closed; provided that, if any action is required of the Issuer (or of the Administrator on its behalf), solely for purposes of determining when such action of the Issuer is required, days on which commercial banking institutions in the Cayman Islands are authorized or obligated by law or executive order to be closed will also be considered in determining whether such day is a “Business Day.”
Buy/Sell Interest means a Collateral Interest for which one of the participants has exercised its right to purchase its corresponding participant’s interest, or sell its interest to such corresponding participant for the same price, in accordance with the related Underlying Instrument
Calculation Date means, with respect to any Payment Date, the last day of the related Due Period.
Call Period has the meaning specified in Section 9.1(a) hereof.
Cash means such funds denominated with currency of the United States as at the time shall be legal tender for payment of all public and private debts, including funds credited to a deposit account or a Securities Account.
Certificate of Authentication has the meaning specified in Section 2.3(f).
Certificated Class A-G Note has the meaning specified in Section 2.1(c).
Certificated Class H Note has the meaning specified in Section 2.1(d).
Certificated Class H Note Transfer Certificate has the meaning specified in Section 2.4(c)(1).
Certificated Class J Note has the meaning specified in Section 2.1(d).
Certificated Class J Note Transfer Certificate has the meaning specified in Section 2.4(c)(1).
Certificated Income Notes means Income Notes issued in the form of physical certificates in definitive, fully registered form.
Certificated Note means any Rated Note or Income Note issued in the form of physical certificates in certificated, fully registered form.
Certificated Security has the meaning specified in Section 8-102(a)(4) of the UCC.
Class means any class of the Notes, consisting of the Class A-1 Notes, Class A-R Notes, Class A-2 Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes, Class K Notes and Income Notes.
Class A Notes means the Class A-1 Notes, Class A-R Notes and Class A-2 Notes.
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Class A Senior Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class A Senior Notes in full by their Stated Maturity Dates and the timely payment of interest on such Class A Senior Notes.
Class A Senior Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class A Senior Note Scenario Default Rate from the Class A Senior Note Break-Even Default Rate.
Class A Senior Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class A Senior Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class A Senior Notes means the Class A-1 Notes and the Class A-R Notes.
Class A Senior Pro Rata Allocation means, with respect to any Payment Date, the allocation based on the Aggregate Outstanding Amount of the Class A-1 Notes and the aggregate principal amount of the Class A-R Commitments as of the related Measurement Date, and in the case of a Redemption of the Notes in full or the acceleration of the Notes following an Event of Default, the allocation based on the Aggregate Outstanding Amount of the Class A-1 Notes and the aggregate principal amount of the Class A-R Commitments as of the related Calculation Date.
Class A/B Coverage Tests means the Interest Coverage Test and the Principal Coverage Test applied with respect to the Class A Notes and Class B Notes, taken together.
Class A-1 Note Interest Rate means LIBOR plus 0.330%.
Class A-1 Notes means the U.S.$174,800,000 aggregate principal amount of Class A-1 Floating Rate Notes due 2041.
Class A-2 Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class A-2 Notes in full by their Stated Maturity Date and the timely payment of interest on such Class A-2 Notes.
Class A-2 Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class A-2 Note Scenario Default Rate from the Class A-2 Note Break-Even Default Rate.
Class A-2 Note Interest Rate means LIBOR plus 0.380%.
Class A-2 Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class A-2 Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class A-2 Notes means the U.S.$27,225,000 aggregate principal amount of Class A-2 Floating Rate Notes due 2041.
Class A-R Breakage Costs means, with respect to any Due Period, the amount of “breakage costs” as set forth in a certificate of a Class A-R Noteholder delivered to the Issuer and the Trustee on or prior to the
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related Calculation Date, if any, incurred by Class A-R Noteholders as a result of (a) a prepayment of amounts under the Class A-R Notes on a day other than a Payment Date and calculated as provided in the Class A-R Note Purchase Agreement or (b) a failure by the Issuer to effect a Class A-R Draw on the scheduled date therefor after having submitted a request for a Class A-R Draw to the Class A-R Note Agent in accordance with the provisions of the Class A-R Note Purchase Agreement.
Class A-R Commitment means, the maximum aggregate outstanding principal amount of advances (whether at the time funded or unfunded) that the Holder of such Class A-R Note (or the related Liquidity Provider) is obligated to make to the Issuer from time to time under the Class A-R Note Purchase Agreement.
Class A-R Commitment Fee means, in respect of the Class A-R Noteholders and an Interest Period, the fee payable to such Class A-R Noteholder in arrears, on each Payment Date, being the amount accrued in respect of that Interest Period at a rate per annum equal to 0.16% (calculated on the average daily Aggregate Class A-R Undrawn Amount during such Interest Period on the basis of a 360-day year and the actual number of days elapsed).
Class A-R Defaulted Interest Amount means, with respect to the Class A-R Notes as of each Payment Date, the accrued and unpaid amount due to Holders of the Class A-R Notes on account of any shortfalls in the payment of the related Periodic Interest with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful).
Class A-R Draw means an advance by a Holder of a Class A-R Note made in accordance with Section 17.1(a) hereof.
Class A-R Draw Date has the meaning specified in Section 17.1(a) hereof.
Class A-R Eligible Investments has the meaning specified in Section 17.5(f) hereof.
Class A-R Holder Collateral Account means the Securities Account designated the “Class A-R Holder Collateral Account” and established in the name of the Trustee pursuant to Section 17.5.
Class A-R Increased Costs means, with respect to any Payment Date, the amount as set forth in a certificate of a Class A-R Noteholder delivered to the Issuer and the Trustee on or prior to the Calculation Date of the related Payment Date, necessary to compensate such Noteholder or any Funding Entity for (a) any increase in cost to a Funding Entity of making or maintaining any loan or asset purchase under the Class A-R Note Purchase Agreement or such Liquidity Facility (or maintaining its obligation to make any such loan or asset purchase) resulting from a change in law applicable to such Funding Entity, (b) any reduction in any amount received or receivable by a Funding Entity under the Class A-R Note Purchase Agreement or such Liquidity Facility resulting from a change in law applicable to such Funding Entity or (c) any reduction in the rate of return on the capital of a Funding Entity or its parent/holding company resulting from a change in law applicable to such Funding Entity or parent/holding company to a level below that which such Funding Entity or parent/holding company could have achieved but for such change in law. The Class A-R Note Agent, the Issuer, the Trustee and the Collateral Manager shall in each instance be entitled to rely conclusively (in the absence of manifest error) on any such certificate and all calculations and data therein (and the Class A-R Note Agent, the Issuer, the Trustee and the Collateral Manager shall have no duty or obligation to investigate, verify or recalculate any information or conclusion set forth therein).
Class A-R Interest Allocation Percentage means, for each Interest Period and with respect to each Holder of Class A-R Notes, a fraction, expressed as a percentage, (i) the numerator of which is the
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Average Drawn Class A-R Note Portion of such Holder and (ii) the denominator of which is the Average Drawn Class A-R Note Portion of all of the Class A-R Noteholders.
Class A-R Note Agent means Xxxxx Fargo Bank, National Association, and any successors or assigns.
Class A-R Note Agent Fee means $10,000 per annum.
Class A-R Note Draw Date has the meaning specified in Section 17.1(a) hereof.
Class A-R Note Interest Rate means LIBOR plus 0.340%.
Class A-R Note Purchase Agreement means the agreement to be dated March 17, 2006, entered into among the Issuer, the Co-Issuer, the Class A-R Note Agent and the Holders from time to time of the Class A-R Notes, as amended, supplemented or otherwise modified from time to time in accordance with its terms.
Class A-R Note Rating Criteria means the criteria set forth below, which if satisfied with respect to any Holder of Class A-R Notes (or prospective transferee) at the time such Class A-R Notes are purchased (or transferred), will make such Holder (or prospective transferee) eligible to purchase (or receive) such Class A-R Notes, will be satisfied on any date with respect to any Holder of Class A-R Notes (or prospective transferee) if:
(i) either (x) the short-term debt, deposit or similar obligations of such Class A-R Noteholder (or prospective transferee) are rated “P-1” by Moody’s and at least “A-1” by S&P or (y) if such short-term debt, deposit or similar obligations of such Class A-R Noteholder (or prospective transferee) are not rated by Moody’s or S&P, the long-term debt, deposit or similar obligations of such Class A-R Noteholder (or prospective transferee) are rated “Aa3” by Moody’s and/or at least “A+” by S&P, as applicable;
(ii) the obligations of such Class A-R Noteholder (or prospective transferee) under the Class A-R Note Purchase Agreement are guaranteed (pursuant to a guarantee which complies with the then-current S&P criteria regarding guarantees) by an entity meeting the Class A-R Rating Criteria set forth in (i) above; or
(iii) such Class A-R Noteholder (or prospective transferee) is then entitled under a Liquidity Facility to borrow from, or sell an interest in assets to a Liquidity Provider so long as:
(1) either (x) the short-term debt, deposit or similar obligations of each such Liquidity Provider are on such date rated “P-1” by Moody’s, at least “F1” by Fitch and at least “A-1” by S&P or (y) if such short-term debt, deposit or similar obligations of each such Liquidity Provider are not rated by Moody’s, Fitch or S&P, the long-term debt, deposit or similar obligations of each such Liquidity Provider are rated “Aa3” by Moody’s, at least “A+” by Fitch and/or at least “A+” by S&P, as applicable; and
(2) the aggregate amount of commitments to make loans or purchase interests in assets under such Liquidity Facility are held by Liquidity Providers whose either (x) short-term debt, deposit or similar obligations are on such date rated “P-1” by Moody’s, at least “F1” by Fitch and at least “A-1” by S&P or (y) if such short-term debt, deposit or similar obligations are not rated by Moody’s, Fitch or S&P, the long-term debt, deposit or similar obligations are on such date rated “Aa3” by Moody’s, at least “A+” by Fitch and/or at least “A+” by S&P, as applicable, and such amounts are not less than the
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Class A R Commitment in respect of the Class A R Notes held by such Class A R Noteholder (or prospective transferee).
Class A-R Notes means the up to U.S.$70,000,000 aggregate principal amount of Class A-R Revolving Floating Rate Notes due 2041.
Class A-R Prepayment means any payment of principal of the Class A-R Notes prior to the Stated Maturity Date of the Class A-R Notes.
Class A-R Prepayment Date means the date of any Class A-R Prepayment.
Class A-R Proportion is equal to the percentage based on the ratio of (x) the initial aggregate principal amount of the Class A-R Notes (assuming for purposes of this calculation that the Class A-R Commitments are fully drawn) to (y) the initial aggregate principal amount of the Class A-1 Notes.
Class B Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class B Notes in full by their Stated Maturity Dates and the timely payment of interest on such Class B Notes.
Class B Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class B Note Scenario Default Rate from the Class B Note Break-Even Default Rate.
Class B Note Interest Rate means LIBOR plus 0.440%.
Class B Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class B Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class B Notes means the U.S.$21,825,000 aggregate principal amount of Class B Floating Rate Notes Due 2041.
Class C Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class C Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes or Class B Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class C Notes.
Class C Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class C Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates, pursuant to the Priority of Payments, to reduce such sum.
Class C Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class C Notes in full by their Stated Maturity Dates and the timely payment of interest on such Class C Notes.
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Class C Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class C Note Scenario Default Rate from the Class C Note Break-Even Default Rate.
Class C Note Interest Rate means LIBOR plus 0.740%.
Class C Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class C Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class C Notes means the U.S.$12,825,000 aggregate principal amount of Class C Floating Rate Deferrable Interest Notes Due 2041.
Class C/D Coverage Tests means the Interest Coverage Test and the Principal Coverage Test applied with respect to the Class C Notes and the Class D Notes taken together.
Class D Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class D Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes, Class B Notes or Class C Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class D Notes.
Class D Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class D Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates, pursuant to the Priority of Payments to reduce such sum.
Class D Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class D Notes in full by their Stated Maturity Dates and the timely payment of interest on such Class D Notes.
Class D Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class D Note Scenario Default Rate from the Class D Note Break-Even Default Rate.
Class D Note Interest Rate means LIBOR plus 0.940%.
Class D Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class D Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class D Notes means the U.S.$13,950,000 aggregate principal amount of Class D Floating Rate Deferrable Interest Notes Due 2041.
Class E Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class E Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes, Class B Notes, Class C Notes or Class D Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class E Notes.
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Class E Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class E Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates, pursuant to the Priority of Payments, to reduce such sum.
Class E Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class E Notes in full by their Stated Maturity Dates and the timely payment of interest on such Class E Notes.
Class E Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class E Note Scenario Default Rate from the Class E Note Break-Even Default Rate.
Class E Note Interest Rate means LIBOR plus 1.650%.
Class E Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class E Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class E Notes means the U.S.$10,125,000 aggregate principal amount of Class E Floating Rate Deferrable Interest Notes Due 2041.
Class E/F/G Coverage Tests means the Interest Coverage Test and the Principal Coverage Test applied to the Class E Notes, Class F Notes and Class G Notes, taken together.
Class F Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class F Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes, Class B Notes, Class C Notes, Class D Notes or Class E Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class F Notes.
Class F Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class F Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates, pursuant to the Priority of Payments, to reduce such sum.
Class F Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class F Notes in full by their Stated Maturity Dates and the timely payment of interest on such Class F Notes.
Class F Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class F Note Scenario Default Rate from the Class F Note Break-Even Default Rate.
Class F Note Interest Rate means LIBOR plus 1.850%.
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Class F Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class F Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class F Notes means the U.S.$7,650,000 aggregate principal amount of Class F Floating Rate Deferrable Interest Notes Due 2041.
Class G Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class G Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes or Class F Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class F Notes.
Class G Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class G Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates, pursuant to the Priority of Payments, to reduce such sum.
Class G Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class G Notes in full by their Stated Maturity Dates and the timely payment of interest on such Class G Notes.
Class G Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class G Note Scenario Default Rate from the Class G Note Break-Even Default Rate.
Class G Note Interest Rate means LIBOR plus 3.000%.
Class G Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class G Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class G Notes means the U.S.$9,900,000 aggregate principal amount of Class G Floating Rate Deferrable Interest Notes Due 2041.
Class H Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class H Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes or Class G Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class H Notes.
Class H Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class H Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates pursuant to the Priority of Payments to reduce such sum.
Class H Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after
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giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class H Notes in full by their Stated Maturity Date and the ultimate payment of interest on such Class H Notes.
Class H Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class H Note Scenario Default Rate from the Class H Note Break-Even Default Rate.
Class H Note Interest Rate means LIBOR plus 4.250%.
Class H Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class H Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class H Note Tax Transfer Certificate has the meaning specified in Section 2.4(c)(3).
Class H Notes means the U.S.$6,075,000 aggregate principal amount of Class H Floating Rate Deferrable Interest Notes due 2041.
Class J Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class J Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes or Class H Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class J Notes.
Class J Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class J Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates pursuant to the Priority of Payments to reduce such sum.
Class J Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class J Notes in full by their Stated Maturity Date and the ultimate payment of interest on such Class J Notes.
Class J Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class J Note Scenario Default Rate from the Class J Note Break-Even Default Rate.
Class J Note Interest Rate means LIBOR plus 5.500%.
Class J Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class J Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class J Note Tax Transfer Certificate has the meaning specified in Section 2.4(c)(3).
Class J Notes means the U.S.$18,000,000 aggregate principal amount of Class J Floating Rate Deferrable Interest Notes due 2041.
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Class K Applicable Periodic Interest Shortfall Amount means, with respect to any Interest Period, the amount of unpaid interest for such Interest Period that will be added to the principal amount of the Class K Notes and paid thereafter in accordance with the Priority of Payments in the event that any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes or Class J Notes are Outstanding and funds are not available in accordance with the Priority of Payments on any Payment Date to pay the full amount of Periodic Interest on the Class K Notes.
Class K Cumulative Applicable Periodic Interest Shortfall Amount means, with respect to any date of determination, the sum of all Class K Applicable Periodic Interest Shortfall Amounts with respect to all Payment Dates preceding such date of determination, less any amounts applied on all preceding Payment Dates pursuant to the Priority of Payments to reduce such sum.
Class K Note Break-Even Default Rate means the maximum percentage of defaults that the portfolio of Collateral Interests can sustain, as determined by S&P by application of the S&P CDO Monitor, after giving effect to S&P’s assumptions on recoveries, defaults and timing and to the Priority of Payments such that sufficient funds will remain for the payment of principal of the Class K Notes in full by their Stated Maturity Date and the ultimate payment of interest on such Class K Notes.
Class K Note Default Differential means, with respect to any Calculation Date, the rate obtained by subtracting the Class K Note Scenario Default Rate from the Class K Note Break-Even Default Rate.
Class K Note Interest Rate means LIBOR plus 8.000%.
Class K Note Scenario Default Rate means an estimate of the cumulative default rate for the portfolio of Collateral Interests consistent with S&P’s rating of the Class K Notes on the Closing Date, determined by S&P by application of the S&P CDO Monitor.
Class K Notes means the U.S.$13,950,000 aggregate principal amount of Class K Floating Rate Deferrable Interest Notes due 2041.
Clearing Agency means DTC, Euroclear or Clearstream.
Clearing Corporation has the meaning specified in Section 8-102(a)(5) of the UCC.
Clearstream means Clearstream Banking, société anonyme.
Closing Date means March 17, 2006.
CMBS means commercial mortgage-backed securities issued pursuant to a transaction in which one or more classes of such securities have been (and are) rated “AAA” or its equivalent by one or more of S&P, Moody’s or Fitch (unless Rating Confirmation is received), which securities are backed by obligations (including certificates of participations in obligations) that are principally secured by mortgages on real property or interests therein having a multifamily or commercial use.
Code means the Internal Revenue Code of 1986, as amended.
Co-Issuer means N-Star REL CDO VI LLC, a limited liability company organized under the law of the State of Delaware, unless a successor Person shall have become the Co-Issuer pursuant to the applicable provisions of this Indenture, and thereafter Co-Issuer shall mean such successor Person.
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Co-Issuers means the Issuer and Co-Issuer.
Collateral has the meaning specified in the Granting Clauses.
Collateral Administration Agreement means the Collateral Administration Agreement, dated as of March 17, 2006, by and among the Issuer, the Collateral Manager and the Collateral Administrator, as the same may be amended and modified from time to time in accordance with its terms.
Collateral Administrator means Xxxxx Fargo Bank, National Association, solely in its capacity as Collateral Administrator under the Collateral Administration Agreement, unless a successor Person shall have become the Collateral Administrator pursuant to the applicable provisions of Collateral Administration Agreement, in which case Collateral Administrator shall mean such successor Person.
Collateral Interest means an item of Collateral which satisfies the Eligibility Criteria specified in Section 12.2.
Collateral Interest Collections means, with respect to any Due Period and the related Payment Date, without duplication, the sum of (i) all cash payments of interest with respect to any Collateral Interests and Eligible Investments included in the Collateral ((A) including any Sale Proceeds of a Collateral Interest representing unpaid interest accrued thereon to the date of the sale thereof to the extent not treated as Collateral Principal Collections at the option of the Collateral Manager, but (B) excluding all funds received on an Impaired Interest (including any unpaid interest) and any unpaid interest accrued on a Deferred Interest XXX Xxxx or a Written Down Interest to the date of sale) which are received during the related Due Period (excluding any Purchased Accrued Interest), (ii) all payments on Eligible Investments purchased with Collateral Interest Collections, (iii) payments received or scheduled to be received from a Hedge Counterparty under any Hedge Agreement on the related Payment Date, excluding any payments received from a Hedge Counterparty upon reduction of the notional amount and any termination payments (provided that so long as the Notes are Outstanding, any termination payments received from a Hedge Counterparty will be used to enter into a substitute Hedge Agreement to the extent required to maintain the then-current rating of the Notes by each Rating Agency), (iv) all amendment and waiver fees, all late payment fees and all other fees and commissions received during the related Due Period (other than fees and commissions received in connection with the sale, restructuring, workout or default of Collateral Interests or in connection with Impaired Interests or Written Down Interests) (provided, further, that Collateral Interest Collections shall not include any other proceeds related to any Retained Rights), (v) the Principal Balance of any Eligible Investments purchased with Collateral Interest Collections, (vi) all interest accrued on the Closing Date on Collateral Interests included in the Collateral, (vii) any amounts on deposit in the Interest Reserve Account, (viii) at the option of the Collateral Manager, any amount on deposit in the Expense Reserve Account in excess of U.S.$25,000, (ix) commitment fees on unfunded amounts and other similar fees (in each case, net of applicable withholding taxes) actually received by the Issuer during the related Due Period in respect of any Earn-Out Assets, (x) any Uninvested Proceeds remaining on deposit in the Uninvested Proceeds Account on the Effective Date, provided that a Rating Confirmation Failure has not occurred and (xi) all proceeds from the foregoing; provided, however, that Collateral Interest Collections shall not include the funds and other property (including, without limitation, the paid-up share capital of the Issuer) with respect to the Income Notes and the bank account in which such funds and the proceeds thereof are held); provided, further, that Collateral Interest Collections shall not include principal of any Collateral Interest representing capitalized interest after the date of purchase thereof by the Issuer.
Collateral Interest Principal Balance means, prior to the Effective Date, U.S.$450,000,000, and thereafter, the aggregate Principal Balance of the sum of (i) Collateral Interests included in the Collateral (including any Collateral Interests that have become Impaired Interests or Written Down Interests),
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(ii) Eligible Investments, in each case, purchased with the proceeds of the issuance of the Notes or thereafter with Collateral Principal Collections, (iii) Eligible Investments held in the Earn-Out Asset Account (without duplication) and (iv) the Aggregate Class A-R Undrawn Amount (without duplication).
Collateral Management Agreement means the Collateral Management Agreement, dated as of the Closing Date, as the same may be amended or supplemented from time to time, between the Issuer and the Collateral Manager.
Collateral Management Fee means the Senior Collateral Management Fee and the Subordinate Collateral Management Fee.
Collateral Manager means NS Advisors, LLC, a Delaware limited liability company, unless a successor Person shall have become Collateral Manager pursuant to the applicable provisions of the Collateral Management Agreement, in which case Collateral Manager shall mean such successor Person.
Collateral Principal Collections means, with respect to any Due Period and the related Payment Date, all amounts received by the Issuer during such Due Period that do not constitute Collateral Interest Collections (including all distributions on Preferred Equity Securities attributable to the return of capital by their governing documents) (provided, further, that Collateral Principal Collections shall not include any other proceeds related to any Retained Rights); provided, however, that Collateral Principal Collections shall include principal of any Collateral Interest representing capitalized interest after the date of purchase thereof by the Issuer.
Collateral Principal Collections Sub-Account has the meaning specified in Section 10.5(a)(1) hereof.
Collateral Principal Payments means, with respect to any Due Period and the related Payment Date, Collateral Principal Collections other than Sale Proceeds and any amounts received in respect of Eligible Investments.
Collateral Quality Tests will be satisfied if, as of any Measurement Date, the Collateral Interests comply, in the aggregate, with all of the requirements set forth below (collectively, the Collateral Quality Tests):
(1) the aggregate Principal Balance of all Collateral Interests that are CMBS (other than Rake Bonds) does not exceed the greater of (A) 15% of the Collateral Interest Principal Balance and (B) $67,500,000;
(2) the aggregate Principal Balance of all Collateral Interests that are Tenant Lease Loan Interests with an S&P Rating of below “BBB” does not exceed the greater of (A) 7.5% of the Collateral Interest Principal Balance and (B) $33,750,000;
(3) the aggregate Principal Balance of all Collateral Interests that are REIT Debt Securities with an S&P Rating below “BBB” does not exceed the greater of (A) 7.5% of the Collateral Interest Principal Balance and (B) $33,750,000;
(4) the aggregate Principal Balance of all Collateral Interests that are Real Estate CDO Securities does not exceed the greater of (A) 15% of the Collateral Interest Principal Balance and (B) $67,500,000;
(5) the Moody’s Maximum Weighted Average Rating Factor Test is satisfied;
(6) (i) the Weighted Average Fixed Rate Coupon as of such date equals or exceeds 6.00% and (ii) the Weighted Average Spread as of such date equals or exceeds 3.00%;
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(7) the Weighted Average Life Test is satisfied;
(8) the maximum property concentration limits for Collateral Interests (on a look-through basis), other than Real Estate CDO Securities and REIT Debt Securities are as follows:
(i) the aggregate Principal Balance of such Collateral Interests which relate to Mortgaged Properties which are office properties may not exceed the greater of (A) 65% of the Collateral Interest Principal Balance and (B) $292,500,000;
(ii) the aggregate Principal Balance of such Collateral Interests which relate to Mortgaged Properties which are each of retail, multifamily, industrial and hospitality properties may not exceed the greater of (A) 45% of the Collateral Interest Principal Balance and (B) $202,500,000;
(iii) the aggregate Principal Balance of such Collateral Interests which relate to Mortgaged Properties which are condominium conversion properties may not exceed the greater of (A) 20% of the Collateral Interest Principal Balance and (B) $90,000,000;
(iv) the aggregate Principal Balance of such Collateral Interests which relate to Mortgaged Properties which are self-storage properties may not exceed the greater of (A) 15% of the Collateral Interest Principal Balance and (B) $67,500,000;
(v) the aggregate Principal Balance of such Collateral Interests which relate to Mortgaged Properties which are healthcare properties may not exceed the greater of (A) 5% of the Collateral Interest Principal Balance and (B) $22,500,000; and
(vi) the aggregate Principal Balance of such Collateral Interests which relate to Mortgaged Properties which in the aggregate are any property type other than those specified in clauses (i) through (v) above may not exceed the greater of (A) 10% of the Collateral Interest Principal Balance and (B) $45,000,000;
(9) the aggregate Principal Balance of all Collateral Interests (on a look-through basis), other than Real Estate CDO Securities and REIT Debt Securities, backed or otherwise invested in Mortgaged Properties located in any single U.S. state does not exceed the greater of (A) 25% of the Collateral Interest Principal Balance and (B) $112,500,000, except that (i) up to the greater of (A) 60% of the Collateral Interest Principal Balance and (B) $270,000,000 may consist of Collateral Interests backed or otherwise invested in Mortgaged Properties located in California, (ii) up to the greater of (A) 50% of the Collateral Interest Principal Balance and (B) $225,000,000 may consist of Collateral Interests backed or otherwise invested in Mortgaged Properties located in New York, (iii) up to the greater of (A) 40% of the Collateral Interest Principal Balance and (B) $180,000,000 may consist of Collateral Interests backed or otherwise invested in Mortgaged Properties located in each of Texas and Florida;
(10) the Xxxxxxxxxx Score of the Collateral Interests is at least 22;
(11) the aggregate Principal Balance of all Collateral Interests that represent obligations of any single obligor or group of affiliated obligors does not exceed the greater of (A) 13% of the Collateral Interest Principal Balance and (B) $58,500,000;
(12) the aggregate Principal Balance of all Collateral Interests that consist of CMBS issued in any single calendar year does not exceed the greater of (A) 75% of the Collateral Interest Principal Balance and (B) $337,500,000
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(13) the aggregate Principal Balance of all Fixed Rate Collateral Interests does not exceed the greater of (A) 5% of the Collateral Interest Principal Balance and (B) $22,500,000; provided that no more than the greater of (A) 40% of the Collateral Interests and (B) $180,000,000 shall consist of Fixed Rate Collateral Interests if (i) the Issuer enters into corresponding Deemed Floating Asset Xxxxxx or (ii) Rating Confirmation is obtained with respect to an additional Fixed Rate Collateral Interest acquired without a corresponding Deemed Floating Asset Hedge;
(14) the aggregate Principal Balance of all Collateral Interests that provide for the payment of interest less frequently than quarterly does not exceed the greater of (A) 15% of the Collateral Interest Principal Balance and (B) $67,500,000;
(15) the aggregate Principal Balance of all Collateral Interests that are CMBS and Real Estate CDO Securities that have a stated maturity later than the Stated Maturity Date does not exceed the greater of (A) 5% of the Collateral Interest Principal Balance and (B) $22,500,000; provided that such 5% limitation may be increased after the Closing Date if Rating Confirmation has been obtained with respect thereto;
(16) the aggregate Principal Balance of all Collateral Interests that are CMBS that have a stated maturity later than the Stated Maturity Date does not exceed the greater of 5% of the Collateral Interest Principal Balance (B) $22,500,000;
(17) the aggregate Principal Balance of all Collateral Interests that are Real Estate CDO Securities that have a stated maturity later than the Stated Maturity Date does not exceed the greater of 3% of the Collateral Interest Principal Balance (B) $13,500,000;
(18) the S&P CDO Monitor Test is satisfied;
(19) the S&P Minimum Average Recovery Rate Test is satisfied;
(20) the aggregate Principal Balance of all Collateral Interests that are Undeveloped Real Estate Collateral Interests does not exceed the greater of (A) 15% of the Collateral Interest Principal Balance and (B) $67,500,000;
(21) the Moody’s Weighted Average Initial Maturity Test is satisfied;
(22) the Moody’s Weighted Average Extended Maturity Test is satisfied;
(23) the Fitch Loan Diversity Index Test is satisfied;
(24) the Fitch Poolwide Expected Loss Test is satisfied; and
(25) the Moody’s Minimum Average Recovery Rate Test is satisfied.
At all times, the dollar amount limitation set forth in any individual Collateral Quality Test will be disregarded for the purposes of the Reinvestment Criteria, but each such dollar amount limitation will be taken into account solely for purposes of any reports to be prepared pursuant to this Indenture.
Collateral Sub-Account means any sub-account established within a Collection Account.
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Collection Account means the Securities Account designated the “Collection Account” and established in the name of the Trustee pursuant to Section 10.5, including the Collateral Principal Collections Sub-Account.
Collections means, with respect to any Payment Date, the sum of (i) the Collateral Interest Collections collected during the applicable Due Period and (ii) the Collateral Principal Collections collected during the applicable Due Period.
Commercial Mortgage Loans means commercial mortgage loans whether such commercial mortgage loans are Collateral Interests or underlie or comprise the other types of Collateral Interests (as the context may require).
Commission means the United States Securities and Exchange Commission.
Commitment Termination Time means the date on which any of the following first occurs: (i) the date on which the Future Advance Amounts are reduced to zero and the Collateral Manager has notified the Trustee in writing that it will not cause the Issuer to acquire any further Earn-Out Assets; (ii) the date on which the aggregate principal amount of the Class A-1 Notes and the Class A-R Notes have been paid in full; (iii) the Mandatory Class A-R Draw Date; or (iv) the Redemption Date.
Controlling Class means the Class A Senior Notes voting as a single Class, so long as any Class A Senior Notes are Outstanding, then the Class A-2 Notes, so long as any Class A-2 Notes are Outstanding, then the Class B Notes, so long as any Class B Notes are Outstanding, then the Class C Notes voting as a single Class, so long as any Class C Notes are Outstanding, then the Class D Notes, so long as any Class D Notes are Outstanding, then the Class E Notes, so long as any Class E Notes are Outstanding, then the Class F Notes, so long as any Class F Notes are Outstanding, then the Class G Notes, so long as any Class G Notes are Outstanding, then the Class H Notes, so long as any Class H Notes are Outstanding, then the Class J Notes, so long as any Class J Notes are Outstanding, and then the Class K Notes, so long as any Class K Notes are Outstanding, in each case, based on the aggregate principal amount thereof.
Controlling Person any person (other than a Benefit Plan Investor) that has discretionary authority or control with respect to the assets of the Issuer, a person who provides investment advice for a fee (direct or indirect) with respect to the assets of the Issuer, or any “affiliate” (within the meaning of 29 C.F.R. Section 2510.3-101(f)(3)) of any such person.
Corporate Services Agreement means that certain Corporate Services Agreement, dated as of March 17, 2006, as the same may be amended or supplemented from time to time, between the Issuer and the Administrator.
Corporate Trust Office means the designated corporate trust office of the Trustee, currently located at: (i) for note transfer purposes, Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: CDO Trust Services — N-Star REL CDO VI and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000. Attention: CDO Trust Services — N-Star REL CDO VI, telephone number 000-000-0000, fax number 000-000-0000, or such other address as the Trustee may designate from time to time by notice to the Rated Noteholders, the Income Noteholders, the Collateral Manager, each Hedge Counterparty and the Co-Issuers or the principal corporate trust office of any successor Trustee.
Coverage Tests means the Class A/B Coverage Tests, the Class C/D Coverage Tests and the Class E/F/G Coverage Tests.
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Credit Lease Loans means mortgage loans secured by mortgages on commercial real estate properties that are subject to a lease to a single tenant.
Credit Risk Interest means any Collateral Interest which, in the Collateral Manager’s reasonable business judgment, has a significant risk of declining in credit quality or over time may become an Impaired Interest.
Cumulative Applicable Periodic Interest Shortfall Amount means the Class C Cumulative Applicable Periodic Interest Shortfall Amount, Class D Cumulative Applicable Periodic Interest Shortfall Amount, Class E Cumulative Applicable Periodic Interest Shortfall Amount, Class F Cumulative Applicable Periodic Interest Shortfall Amount, Class G Cumulative Applicable Periodic Interest Shortfall Amount, Class H Cumulative Applicable Periodic Interest Shortfall Amount, Class J Cumulative Applicable Periodic Interest Shortfall Amount and Class K Cumulative Applicable Periodic Interest Shortfall Amount.
Cure Advance means, amounts advanced by a Holder of Income Notes pursuant to the Paying Agency Agreement to permit the Issuer to exercise its right to cure payment defaults with respect to any Senior Loan related to a Collateral Interest in accordance with the applicable Underlying Instrument.
Current Pay Future Advance Amount means as of any Calculation Date, an amount equal to the Total Unfunded Future Advance Amounts related to the Earn-Out Assets held by the Issuer that are currently due and payable, or which the applicable servicer has notified the Collateral Manager and the Trustee in writing that it believes will be payable within one month of the related Payment Date, and which the Collateral Manager has notified the Trustee in writing that the Issuer will fund such Future Advance Amounts.
Current Portfolio means the portfolio (measured by Principal Balance) of (a) the Pledged Collateral Interests and the proceeds of the disposition thereof held as Cash and (b) Eligible Investments purchased with proceeds of the disposition of Pledged Collateral Interests, existing immediately prior to the sale, maturity or other disposition of a Pledged Collateral Interest or immediately prior to the acquisition of a Pledged Collateral Interest, as the case may be.
Custodian has the meaning specified in Section 3.3(a).
Deemed Floating Asset Hedge means, with respect to a Fixed Rate Collateral Interest, an interest rate swap having (i) a notional schedule equal to the Principal Balance as it is reduced by expected amortization of such Fixed Rate Collateral Interest over time and (ii) payment dates, with respect to termination payments only, identical to the Payment Dates of the Issuer under this Indenture; provided that, (x) at the time of entry into the Deemed Floating Asset Hedge, (i) the expected principal payments on the Fixed Rate Collateral Interest comprising a Deemed Floating Rate Collateral Interest will not extend beyond 10 years after the effective date of such Deemed Floating Asset Hedge and (ii) the scheduled notional amount of such Deemed Floating Asset Hedge at any time is equal to the expected principal amount of the related Fixed Rate Collateral Interest (as calculated at such time), (y) the Rating Agencies and the Trustee are notified prior to the Issuer’s entry into a Deemed Floating Asset Hedge, and each will be provided with the identity of the proposed hedge counterparty and copies of the hedge documentation and notional schedule and (z) such Deemed Floating Asset Hedge is priced at then-current market rates; provided, however, with respect to Agency MBS Securities, Deemed Floating Asset Xxxxxx may also include put agreements or other investments that require the related Agency MBS Securities to be purchased at par plus accrued interest, as provided therein. In the event any Deemed Floating Asset Hedge is not a Form-Approved Hedge Agreement, the Collateral Manager will provide prior written notice to S&P and Fitch of the Issuer’s entry into such Deemed Floating Asset Hedge and
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will obtain Rating Confirmation from S&P with respect to the entry of the Issuer into such Deemed Floating Asset Hedge.
Deemed Floating Rate Agency MBS Security means a fixed-rate Agency MBS Security, the interest rate of which is hedged into a floating rate Agency MBS Security using a Deemed Floating Asset Hedge; provided that, at the time of entry into the related Deemed Floating Asset Hedge, the Average Life of such Deemed Floating Rate Agency MBS Security would not increase or decrease by more than one year from its expected average life if it were to prepay at either 50% or 150% of its pricing speed.
Deemed Floating Rate Collateral Interest means a Fixed Rate Collateral Interest the interest rate of which is hedged into a Floating Rate Collateral Interest using a Deemed Floating Asset Hedge; provided that, at the time of entry into the related Deemed Floating Asset Hedge, the Average Life of such Deemed Floating Rate Collateral Interest would not increase or decrease by more than one year from its expected average life if it were to prepay at either 50% or 150% of its pricing speed.
Deemed Floating Spread means the difference between the stated rate at which interest accrues on each Fixed Rate Collateral Interest that comprises a Deemed Floating Rate Collateral Interest (excluding all Impaired Interests and Deferred Interest PIK Bonds) and the fixed rate that the Issuer agrees to pay to the Hedge Counterparty on the Deemed Floating Asset Hedge at the time such swap is executed.
Default means any Event of Default or any occurrence that, with notice or the lapse of time or both, would become an Event of Default.
Defaulting Party has the meaning given to such term in the standard form 1992 ISDA Master Agreement (Multicurrency —Cross Border).
Defaulted Interest means any interest due and payable in respect of any Class A Note or any Class B Note or, if no Class A Notes or Class B Notes are Outstanding, in respect of any Class C Note or, if no Class C Notes are Outstanding, in respect of any Class D Note, or if no Class D Notes are Outstanding, in respect of any Class E Note, or if no Class E Notes are Outstanding, in respect of any Class F Note, or if no Class F Notes are Outstanding, in respect of any Class G Note, or if no Class G Notes are Outstanding, in respect of any Class H Note, or if no Class H Notes are Outstanding, in respect of any Class J Note, or if no Class J Notes are Outstanding, in respect of any Class K Note and any interest on such Defaulted Interest that (in each case) is not punctually paid or duly provided for on the applicable Payment Date (including the applicable Stated Maturity Date) of the applicable Rated Note.
Deferred Interest XXX Xxxx means a XXX Xxxx with respect to which interest has been deferred or capitalized or does not pay interest when scheduled (other than an Impaired Interest) for each consecutive payment date occurring over a period of (a) the lesser of (i) six months or (ii) three consecutive payment dates (if such Deferred Interest XXX Xxxx is rated (or privately rated for purposes of the issuance of the Notes) below “Baa3” by Moody’s or “BBB-” by S&P or Fitch) or (b) the lesser of (i) one year or (ii) six consecutive payment dates (if such Deferred Interest XXX Xxxx is rated (or privately rated for purposes of the issuance of the Notes) “Baa3” or higher by Moody’s, and “BBB-” or higher by S&P and Fitch), but only until such time as payment of interest on such XXX Xxxx has resumed and all capitalized and deferred interest and any interest thereon has been paid in cash in accordance with the terms of the Underlying Instruments.
Deferred Interest XXX Xxxx Amount means, with respect to each Deferred Interest XXX Xxxx in the Collateral, the lesser of (i) the product of the Principal Balance of such Deferred Interest XXX Xxxx and the Applicable Recovery Rate of such Deferred Interest XXX Xxxx and (ii) the product of the Principal Balance of such Deferred Interest XXX Xxxx and the Market Value of such Deferred Interest XXX Xxxx.
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Depositary means, with respect to the Indenture Issued Notes issued in the form of one or more Global Notes, the Person designated as Depositary pursuant to Section 2.2(e), or any successor thereto, appointed pursuant to the applicable provisions of this Indenture.
Depositary Participant means a broker, dealer, bank or other financial institution or other Person for whom from time to time the Depositary effects book-entry transfers and pledges of notes deposited with the Depositary.
Depositor means N-Star REL CDO Depositor Corp. and any successors or assigns, in its capacity as depositor under the Master Trust Agreement.
Discretionary Sale has the meaning specified in Section 12.1 (a)(7).
Distribution means any payment of principal, interest or fee or any dividend or premium payment made on, or any other distribution in respect of, an obligation or security.
Dollar or U.S.$ means currency of the United States as at the time shall be legal tender for all debts, public and private.
DTC means The Depository Trust Company, a New York corporation, and its nominees and their respective successors.
Due Date means each date on which a Distribution is due on a Pledged Security.
Due Period means, with respect to each Payment Date, the period beginning on the day following the last day of the preceding Due Period relating to the preceding Payment Date (or, in the case of the Due Period that is applicable to the first Payment Date, beginning on the Closing Date) and ending at the close of business on the fourth (4th) Business Day preceding such Payment Date.
Earn-Out Asset means, a Collateral Interest that (a) requires the Issuer to make one or more future advances to the obligor under the Underlying Instruments relating thereto, subject to satisfaction of conditions precedent therein, (b) specifies a maximum amount that can be borrowed on one or more fixed borrowing dates and (c) does not permit the re-borrowing of any amount previously repaid by the obligor thereof; provided, however, that any such Earn-Out Asset will be an Earn-Out Asset only until all commitments by the Issuer to make advances to the obligor thereof expire or are terminated or reduced to zero.
Earn-Out Asset Account means the Securities Account designated the “Earn-Out Asset Account” and established in the name of the Trustee pursuant to Section 10.8.
Effective Date means the date that is the earliest of (i) the 270th day following the Closing Date, (ii) the date on which the Issuer has purchased, with amounts on deposit in the Uninvested Proceeds Account, Collateral Interests having an aggregate Principal Balance (calculated on the respective purchase date for each such Collateral Interest) equal to U.S.$450,000,000 (which amount includes all Future Funding Obligations with respect to Earn-Out Assets) or (iii) such earlier date (if any) that is designated by the Collateral Manager by notice to the Trustee pursuant to this Indenture; provided that the Collateral Manager has received Rating Confirmation within 30 Business Days after the Effective Date; provided, further, that in the event that such day does not fall on a Business Day, the Effective Date shall be the next succeeding Business Day.
Eligibility Criteria has the meaning specified in Section 12.2.
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Eligible Investments means any U.S. Dollar-denominated investment that, at the time it is delivered to the Trustee, is one or more of the following obligations or securities, including, without limitation, those investments for which the Trustee or an Affiliate of the Trustee provides services:
(i) cash;
(ii) direct Registered obligations of, and Registered obligations the timely payment of principal of and interest on which is fully and expressly guaranteed by, the United States of America, or any agency or instrumentality of the United States of America the obligations of which are backed by the full faith and credit of the United States of America;
(iii) demand and time deposits in, interest bearing trust accounts and certificates of deposit of, bankers’ acceptances issued by, or federal funds sold by any depository institution or trust company (including the Trustee) incorporated under the laws of the United States of America or any state thereof and subject to the supervision and examination by federal and/or state banking authorities so long as the commercial paper and/or debt obligations of such depository institution or trust company (or, in the case of the principal depository institution in a holding company system, the commercial paper or debt obligations of such holding company) at the time of such investment or contractual commitment providing for such investment have a credit rating of:
(a) in the case of long-term debt obligations, not less than “Aa2” by Moody’s, “AA” by Fitch and “AAA” by S&P; or
(b) in the case of commercial paper and short-term debt obligations including time deposits, P-1 by Moody’s, “F1+” by Fitch and “A-1” by S&P (provided that, in the case of commercial paper and short-term debt obligations with a maturity of longer than 91 days, the issuer thereof must also have at the time of such investment a long-term credit rating of not less than “AA+” by S&P and a short- and long-term credit rating of not less than “F 1+” and “AA”, respectively, by Fitch);
(iv) Registered securities other than mortgage-backed securities and interest-only securities bearing interest or sold at a discount issued by any corporation under the laws of the United States of America or any state thereof that have a credit rating of “Aa2” by Moody’s, “AA” by Fitch and “AA+” by S&P at the time of such investment or contractual commitment providing for such investment;
(v) unleveraged repurchase obligations (if treated as debt for tax purposes by the issuer) with respect to any security described in clause (ii) above, entered into with a depository institution or trust company (acting as principal) described in clause (iii) or entered into with broker-dealers registered with the Commission (acting as principal) whose short-term debt has a credit rating of “P-1” by Moody’s, “F1+” by Fitch and “A-1+” by S&P at the time of such investment in the case of any repurchase obligation for a security having a maturity not more than 183 days from the date of its issuance or whose long-term debt has a credit rating of at least “Aa2” by Moody’s and “AA+” by S&P at the time of such investment in the case of any repurchase obligation for a security having a maturity more than 183 days from the date of its issuance;
(vi) commercial paper or other short-term obligations having at the time of such investment a credit rating of “P-1” by Moody’s, “F1+” by Fitch and “A-1+” by S&P that are registered and are either bearing interest or are sold at a discount from the face amount thereof and that have a maturity of not more than 183 days from its date of issuance; provided that in the case of commercial paper with a maturity of longer than 91 days, the issuer of such commercial paper (or, in the case of a
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principal depository institution in a holding company system, the holding company of such system), if rated by the Rating Agencies, must have at the time of such investment a long-term credit rating of at least “Aa2” by Moody’s and “AA+” by S&P;
(vii) money market funds with respect to any investments described in clauses (ii) through (vi) above having, at the time of such investment, a credit rating of not less than “AAA” by Moody’s, the highest rating possible by Fitch (if such funds are rated by Fitch) and “AAA/AAAm/AAAm-G” by S&P (if such funds are rated by S&P), respectively (including those for which the Trustee is investment manager or advisor), provided that such fund or vehicle is formed and has its principal office outside the United States;
(viii) prior to the Effective Date, Agency MBS Securities, and on or after the Effective Date, Deemed Floating Rate Agency MBS Securities; and
(ix) any other investments for which Rating Confirmation is received;
provided that (a) Eligible Investments purchased with funds in the Collection Account will be held until maturity except as otherwise specifically provided herein and will include only such obligations or securities as mature no later than the Business Day prior to the Payment Date next succeeding the date of investment in such obligations or securities, unless such Eligible Investments are investments of the type described in clause (i) or (iii) above, in which event such Eligible Investments may mature on such Payment Date and (b) none of the foregoing obligations or securities will constitute Eligible Investments if all, or substantially all, of the remaining amounts payable thereunder will consist of interest and not principal payments, if such security is purchased at a price in excess of 100% of par, if such security is subject to substantial non-credit related risk, as determined by the Collateral Manager in its judgment, if any income from or proceeds of disposition of the obligation or security is or will be subject to deduction or withholding for or on account of any withholding or similar tax or, from the time, if any, that the Issuer is no longer a Qualified REIT Subsidiary, the acquisition (including the manner of acquisition), ownership, enforcement or disposition of the obligation or security will subject the Issuer to net income tax in any jurisdiction outside its jurisdiction of incorporation.
Eligible SPV Jurisdiction means Bahamas, Bermuda, the Cayman Islands, the Channel Islands, the Netherlands Antilles, Luxembourg or any other similar jurisdiction (so long as Rating Confirmation is obtained in connection with the inclusion of such other jurisdiction) generally imposing either no or nominal taxes on the income of companies organized under the laws of such jurisdiction.
Emerging Market Issuer means a sovereign or non-sovereign issuer located in a country that is in Latin America, Asia, Africa, Eastern Europe or the Caribbean or in a country the dollar-denominated sovereign debt obligations of which are rated lower than “Aa2” by Moody’s and lower than “AA” by S&P; provided that an issuer of Asset-Backed Securities located in any Eligible SPV Jurisdiction shall not be an Emerging Market Issuer for purposes hereof if the underlying collateral of such Asset-Backed Securities consists solely of obligations of obligors located in the United States and Qualifying Foreign Obligors.
Entitlement Holder has the meaning specified in Section 8-102(a)(7) of the UCC.
Entitlement Order has the meaning specified in Section 8-102(a)(8) of the UCC.
Equity Interest means any security that does not entitle the holder thereof to receive periodic payments of interest and one or more installments of principal acquired by the Issuer as a result of the exercise or conversion of Collateral Interests, in conjunction with the purchase of Collateral Interests or in exchange
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for a Collateral Interest; provided that the term “Equity Interest” will not include any Preferred Equity Security or any asset-backed security structured as a certificate or other form of beneficial interest.
ERISA means the U.S. Employee Retirement Income Security Act of 1974, as amended.
ERISA Restriction Certificate means the ERISA Restriction Certificate substantially in the form set forth in Exhibit C-4 hereto.
Euroclear means Euroclear Bank S.A/N.V., as operator of the Euroclear system.
Event of Default has the meaning specified in Section 5.1.
Excepted Property means the U.S.$1,000 of capital contributed to the Issuer in respect of the Issuer’s Ordinary Shares in accordance with the Articles and U.S.$1,000 representing a profit fee to the Issuer.
Exchange Act means the United States Securities Exchange Act of 1934, as amended.
Expense Reserve Account means the Securities Account designated the “Expense Reserve Account” and established in the name of the Trustee pursuant to Section 10.6.
Extended Maturity Date means, with respect to any Collateral Interest, the maturity date of such Collateral Interest, assuming the exercise of all extension options (if any) that are exercisable at the option of the related borrower under the terms of such Collateral Interest.
Extended Weighted Average Maturity means, as of any Measurement Date with respect to the Collateral Interests (other than Impaired Interests), the number obtained by (i) summing the products obtained by multiplying (a) the remaining term to maturity (in years, rounded to the nearest one tenth thereof, and based on the Extended Maturity Date) of each Collateral Interest (other than Impaired Interests) by (b) the outstanding Principal Balance at such time of such Collateral Interest and (ii) dividing the sum by the aggregate Principal Balance at such time of all Collateral Interests (other than Impaired Interests).
Fee Basis Amount means an amount equal, for any Payment Date, to the average of the aggregate Collateral Interest Principal Balance (including the aggregate Principal Balance of Impaired Interests) on the first day of the related Due Period and the aggregate Collateral Interest Principal Balance (including the aggregate Principal Balance of Impaired Interests) on the last day of such Due Period.
Fitch means Fitch Ratings and any successor or successors thereto.
Fitch Loan Diversity Index Score means the amount determined by the Collateral Manager on any Measurement Date, by the sum of the series of products obtained for each Collateral Interest, by squaring the quotient of (x) the Principal Balance on such Measurement Date of each such Collateral Interest and (y) the aggregate Principal Balance of all Collateral Interests on such Measurement Date, multiplied by 10,000. In the event that cash has been received in respect of principal proceeds since the immediately preceding Measurement Date but has not been reinvested in additional Collateral Interests as of the current Measurement Date, the aggregate amount then held in cash shall be divided into one or more “Cash Security Exposures.” Each Cash Security Exposure will be sized in an amount equal to the result obtained by averaging the Principal Balance of all Collateral Interests on such Measurement Date; provided that if the cash position as of such Measurement Date is less than such average, or if there is cash remaining in an amount less than such average, the Cash Security Exposure, or the additional Cash Security Exposure, as applicable, represented thereby will be sized in the actual amount of such cash position. The Fitch Loan Diversity Index Score will then mean the amount determined by the Collateral
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Manager on any Measurement Date, by the sum of the series of products obtained for each Collateral Interest, by squaring the quotient of (x) the Principal Balance on such Measurement Date of each such Collateral Interest and each Cash Security Exposure and (y) the aggregate Principal Balance of all Collateral Interests and all Cash Security Exposures on such Measurement Date, multiplied by 10,000.
Fitch Loan Diversity Index Test means a test that will be satisfied if on any Measurement Date the Fitch Loan Diversity Index Score for the Collateral Interests is less than 455.
Fitch Poolwide Expected Loss means the output generated using Fitch’s modified CMBS multi-borrower model (as applied to all Collateral Interests that are Commercial Mortgage Loans, Subordinate Mortgage Loan Interests, Mezzanine Loans, Participation Interests and Preferred Equity Securities).
Fitch Poolwide Expected Loss Test means a test that will be satisfied on any Calculation Date if the Fitch Poolwide Expected Loss of the Collateral Interests is equal to or less than 44.125%.
Fitch Rating of any Collateral Interest will be determined as follows:
(i) if such Collateral Interest is rated by Fitch, the Fitch Rating shall be such rating;
(ii) if such Collateral Interest is not rated by Fitch and a rating is published by both S&P and Moody’s, the Xxxxx Rating shall be the lower of such ratings; and if a rating is published by only one of S&P and Moody’s, the Fitch Rating shall be that published rating by S&P or Moody’s, as the case may be; and
(iii) if the Fitch Rating cannot be assigned in accordance with clauses (i) and (ii) above, the Issuer (or the Collateral Manager on behalf of the Issuer) shall apply to Fitch for a credit assessment which thereafter will be the Fitch Rating.
provided that (x) if such Collateral Interest has been put on rating watch negative for possible downgrade by any Rating Agency, then the rating used to determine the Fitch Rating under either of clauses (i) or (ii) above shall be one rating subcategory below such rating by that Rating Agency, and (y) if such Collateral Interest has been put on rating watch positive for possible upgrade by any Rating Agency, then the rating used to determine the Fitch Rating under either of clauses (i) or (ii) above shall be one rating subcategory above such rating by that Rating Agency, and (z) notwithstanding the rating definition described above, Fitch reserves the right to issue a rating estimate for any Collateral Interest at any time which may differ from the one determined pursuant to this definition and such rating estimate shall be the Fitch Rating of such Collateral Interest.
Fitch Recovery Rate means, (i) with respect to any Collateral Interest that is a Commercial Mortgage Loan on any Measurement Date, the Market Value thereof and (ii) with respect to any Collateral Interest that is a CMBS or a Real Estate CDO Security on any Measurement Date, an amount equal to the percentage corresponding to the domicile, original rating, seniority, and tranche thickness of such Collateral Interest, as applicable, as currently set forth in “Global Rating Criteria for Collateralised Debt Obligations” available at xxx.xxxxxxxxxxxx.xxx. Fitch may, from time to time, modify or replace this criteria and Fitch may apply the current criteria which may have modified or replaced this report.
Financial Asset has the meaning specified in Section 8-102(a)(9) of the UCC.
Financing Statement means a financing statement relating to the Collateral naming the Issuer as debtor and the Trustee on behalf of the Secured Parties as secured party.
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Fixed Rate Collateral Interest means any Collateral Interest which bears a fixed rate of interest.
Floating Rate Collateral Interest means any Collateral Interest that bears interest based upon a floating rate index.
Floating Rate Notes means, collectively, the Class A-1 Notes, Class A-R Notes, Class A-2 Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes.
Form-Approved Hedge Agreement means a Hedge Agreement relating to a specific Hedge Counterparty with respect to which (a) the related Collateral Interest could be purchased by the Issuer without any required action by the Rating Agencies and (b) the documentation of which conforms in all material respects to a form for which Rating Confirmation was previously obtained (as certified to the Trustee by the Collateral Manager) for use of such form by the Issuer; provided that (i) such Form-Approved Hedge Agreement shall not provide for any upfront payments to be made to any Hedge Counterparty, (ii) any revised Form-Approved Hedge Agreement with respect to a particular Hedge Counterparty shall be approved by each of the Rating Agencies at least 10 days prior to the initial use thereof as evidenced by Rating Confirmation, (iii) any Rating Agency may withdraw its consent to the use of a particular Form-Approved Hedge Agreement by written notice to the Trustee, the Collateral Manager and the relevant Hedge Counterparty (provided that such withdrawal of consent shall not affect any existing Hedge Agreement entered into with such Hedge Counterparty) and (iv) the Issuer (or the Collateral Manager on its behalf) shall deliver to the Trustee and each Rating Agency a copy of each Form-Approved Hedge Agreement specifying the Hedge Counterparty to which it relates upon receipt of Rating Confirmation with respect thereto, and the Trustee’s records (when taken together with any correspondence received from the Rating Agencies pursuant to clause (ii)) shall be conclusive evidence of such form.
Funding Entity means, with respect to any Class A-R Noteholder, any Liquidity Provider party to a Liquidity Facility entered into by such Holder in connection with the Class A-R Note Purchase Agreement or a guarantor of such Liquidity Provider.
Future Advance means, with respect to any Earn-Out Asset, the requirement of the Issuer to make one or more future advances to the obligor under the Underlying Instruments relating thereto, subject to satisfaction of conditions precedent specified therein.
Future Advance Amount means, with respect to any Earn-Out Asset, the amount of money required to be funded to the borrower pursuant to the terms of the Earn-Out Asset after the initial funding of the Earn-Out Asset.
Future Funding Obligation means, with respect to any Earn-Out Asset, the obligation to make one or more Future Advances retained by the Issuer.
GAAP has the meaning specified in Section 6.3(k).
Global Notes means the Rule 144A Global Notes and the Regulation S Global Notes.
Grant means to grant, bargain, sell, warrant, alienate, remise, demise, release, convey, assign, transfer, mortgage, pledge, create and grant a security interest in and right of set-off against, deposit, set over and confirm. A Grant of the Pledged Securities, or of any other instrument, shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate continuing right to claim for, collect, receive and receipt for principal, interest and fee payments in
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respect of the Pledged Securities or such other instruments, and all other amounts payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Hedge Agreement means the interest rate protection agreement, as amended from time to time, together with any replacement hedge agreement on substantially identical terms (or that otherwise satisfies the conditions of Section 16.1), entered into pursuant to Section 16.1 or a Deemed Floating Asset Hedge. The Hedge Agreement shall provide that any amount payable to the Hedge Counterparty thereunder shall be subject to the Priority of Payments and that any amount payable upon the early termination or liquidation thereof shall be payable only on a Payment Date in accordance with the Priority of Payments.
Hedge Counterparty means (a) any hedge counterparty (or any permitted assignee or successor) under a Hedge Agreement that satisfies the Hedge Counterparty Ratings Requirement and (b) any substitute or additional parties therefore appointed in accordance with Section 16.1.
Hedge Counterparty Collateral Account means each Securities Account designated the “Hedge Counterparty Collateral Account” and established in the name of the Trustee pursuant to Section 16.1(d).
Hedge Counterparty Ratings Requirement means, with respect to any Hedge Ratings Determining Party: (a) either (x) the short-term rating of such Hedge Ratings Determining Party is not lower than “A-1” by Standard & Poor’s or (y) if such Hedge Ratings Determining Party does not have a short-term rating from Standard & Poor’s, the long-term rating of such Hedge Ratings Determining Party by Standard & Poor’s is not lower than “A+”, (b) (x) a rating on the short-term unsecured, unsubordinated debt obligations of the Hedge Ratings Determining Party of “P-1” by Moody’s and a rating on the long-term unsecured, unsubordinated debt obligations of the Hedge Ratings Determining Party of at least “A1” by Moody’s or (y) if there is no short-term rating by Moody’s, a rating on the long-term unsecured, unsubordinated debt obligations of the Hedge Ratings Determining Party of at least “Aa3” by Moody’s; provided, that any rating shall be reduced by one subcategory to the extent it is on credit watch with negative implications by Moody’s and (c) the short-term credit rating of such Hedge Counterparty is at least “F1” by Fitch and the long-term credit rating of such Hedge Counterparty is at least “A” by Fitch, provided that, with respect to clause (c), if the credit rating falls below either such Fitch rating, then the Hedge Counterparty shall within 30 days, at its sole option and expense, either (x) cause an entity whose credit ratings equal or exceed the above criteria to issue in favor of the Issuer a guaranty acceptable in form and substance to the Issuer and Fitch; (y) cause an entity with a credit rating that equals or exceeds the above criteria to enter a replacement Hedge Agreement; or (z) shall post collateral to the Issuer, acceptable to Fitch, as confirmed in writing by Fitch. If the credit rating of the then current Hedge Counterparty should fall below “F2” (short-term) or “BBB+” (long-term) by Fitch, then the Hedge Counterparty shall within 30 days, at its sole expense cause an entity with a credit rating that equals or exceeds the above criteria (“F1” and “A”) to enter a replacement Hedge Agreement.
Hedge Payment Amount means, with respect to any Hedge Agreement and any Payment Date, the amount, if any, then payable by the Issuer to such Hedge Counterparty, including any amounts so payable in respect of a termination of any Hedge Agreement.
Hedge Ratings Determining Party means (a) unless clause (b) applies with respect to the Hedge Agreement, the Hedge Counterparty or any transferee thereof or (b) any Affiliate of the Hedge Counterparty or any transferee thereof that unconditionally and absolutely guarantees (with the form of such guarantee meeting S&P’s then-current published criteria with respect to guarantees) the obligations of the Hedge Counterparty or such transferee, as the case may be, under the Hedge Agreement. For the
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purpose of this definition, no direct or indirect recourse against one or more shareholders of the Hedge Counterparty or any such transferee (or against any Person in control of, or controlled by, or under common control with, any such shareholder) shall be deemed to constitute a guarantee, security or support of the obligations of the Hedge Counterparty or any such transferee.
Hedge Receipt Amount means, with respect to any Hedge Agreement and any Payment Date, the amount, if any, then payable to the Issuer by the related Hedge Counterparty, including any amounts so payable in respect of a termination of any Hedge Agreement.
Xxxxxxxxxx Index means an index calculated by the Collateral Manager by dividing (i) one by (ii) the sum of the series of products obtained for each Collateral Interest, by squaring the quotient of (x) the principal balance on such Calculation Date of each such Collateral Interest and (y) the aggregate Principal Balance of all Collateral Interests on such Calculation Date. For purposes of calculating the Xxxxxxxxxx Index, all Collateral Interests from a single issue of CMBS shall be treated as a single Collateral Interest and each $12,000,000 increment of Cash in any Account shall be treated as a single Collateral Interest.
Xxxxxxxxxx Score means a measurement of the diversity of a pool of loans of unequal size calculated in accordance with the Xxxxxxxxxx Index.
Highest Auction Price means, in connection with a Redemption, the bid or bids for the Collateral Interests resulting in the highest auction price of one or more Subpools of Collateral Interests.
Holder or Noteholder means (i) with respect to any Rated Note, any Rated Noteholder, (ii) with respect to any Income Note, any Income Noteholder and (iii) with respect to any Indenture Issued Note, any Indenture Issued Noteholder, as the context may require.
Holder Sub-Account has the meaning specified in Section 17.5(a) hereof.
Impaired Interest means any Collateral Interest or any other security included in the Collateral:
(i) with respect to a Preferred Equity Security, (1) with respect to which there has occurred and is continuing a payment default (after giving effect to any applicable grace period but without giving effect to any waiver); provided, however, that notwithstanding the foregoing, a Preferred Equity Security shall not be deemed to be an Impaired Interest as a result of (A) the related issuer’s failure to pay dividends or distributions on the initial due date therefor, if the Collateral Manager or the Issuer consents to extend the due date when such dividend or distribution is due and payable, and such dividend or distribution is paid on or before such extended due date (provided that such dividend or distribution is paid not more than 60 days (or if the due date for such dividend or distribution was previously so extended, not more than 30 days) after the initial date that it was due), or (B) the failure of the issuer or affiliate of the issuer of the Preferred Equity Security to redeem or purchase such Preferred Equity Security on the date when such redemption or purchase is required pursuant to the terms of the agreement setting forth the rights of the holder of that Preferred Equity Security (after giving effect to all extensions of such redemption or purchase date that the issuer or affiliate of the issuer of the Preferred Equity Security had the right to elect and did elect under the terms of the agreement setting forth the rights of the holder of that Preferred Equity Security), if the Collateral Manager or the Issuer consents to extend such redemption or purchase date, provided that such consent does not extend the redemption or purchase date by more than two years after the redemption or purchase date required under such agreement (that is, the original redemption or purchase date under such agreement as extended by all extensions of such date that the issuer or affiliate of the issuer of the Preferred Equity Security had the right to elect and did elect under the terms of such agreement)
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and the amount required to be paid in connection with such redemption or purchase is paid on or before such ext ended redemption or purchase date, or (2) with respect to which there is known to the Issuer or the Collateral Manager a default (other than any payment default) which default entitles the holders thereof to accelerate the maturity of all or a portion of the principal amount of such obligation and such holders have actually accelerated such obligation; provided, however, in each case, if such default is cured or waived then such asset shall no longer be an Impaired Interest or (3) with respect to which there is known to the Collateral Manager (A) any bankruptcy, insolvency or receivership proceeding has been initiated in connection with the issuer of such Collateral Interest, or (B) there has been proposed or effected any distressed exchange or other debt restructuring where the issuer of such Collateral Interest has offered the debt holders a new security or package of securities that either (x) amounts to a diminished financial obligation or (y) has the purpose of helping the issuer to avoid default, or (4) that has been rated “CC”, “D” or “SD” or below by S&P or “CC” or below from Fitch or (5) there is known to the Collateral Manager that the issuer thereof is in default (after giving effect to any applicable grace period or waiver) as to payment of principal and/or interest on another obligation (and such default has not been cured or waived) which is senior or pari passu in right of payment to such Collateral Interest, except that a Collateral Interest will not constitute an “Impaired Interest” under this clause (5) if each of the Rating Agencies has confirmed in writing that such event shall not result in the reduction, qualification or withdrawal of any rating of the Notes;
(ii) with respect to a Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan, if a foreclosure or default (whether or not declared) with respect such Commercial Mortgage Loan (in the case of a Commercial Mortgage Loan) or otherwise in the case of the related Commercial Mortgage Loan has occurred and is continuing for sixty days; provided, however, that notwithstanding the foregoing, a Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan shall not be deemed to be an Impaired Interest as a result of (1) the related borrower’s failure to pay interest on such Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or on the related commercial mortgage loan on the initial due date therefor, if the related lender or holder of such Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or the related commercial mortgage loan consents to extend the due date when such interest is due and payable, and such interest is paid on or before such extended due date (provided that such interest is paid not more than 60 days (or if the due date for such interest was previously so extended, not more than 30 days) after the initial date that it was due), or (2) the related borrower’s failure to pay principal on such Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or the related commercial mortgage loan on the original maturity date thereof (as defined below), if the related lender or holder of such Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or the related commercial mortgage loan consents to extend such maturity date (so long as the Maturity Extension Requirements are met) and such principal is paid on or before such extended maturity date, or (3) the occurrence of any default other than a payment default with respect to such Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or the related commercial mortgage loan, unless and until the earlier of (A) declaration of default and acceleration of the maturity of the Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan by the lender or holder thereof and (B) the continuance of such default uncured for 60 days after such default became known to the Issuer or the Collateral Manager or, upon receipt of Rating
33
Confirmation, such longer period as the Collateral Manager determines. As used herein, the term “original maturity date” means the maturity date of a Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or the related commercial mortgage loan as extended by all extensions thereof which the related borrower had the right to elect and did elect under the terms of the instruments and agreements relating to such Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or the related commercial mortgage loan, but before taking into account any additional extensions thereof that are consented to by the lender or holder of such Commercial Mortgage Loan, Subordinate Mortgage Loan Interest, Mezzanine Loan, Participation Interest, Credit Lease Loan or Tenant Lease Loan or the related commercial mortgage loan; and
(iii) with respect to a CMBS, Real Estate CDO Security or REIT Debt Security (1) as to which there has occurred and is continuing a principal payment default (after giving effect to any applicable grace period or waiver) or (2) as to which there is known to the Issuer or the Collateral Manager a default (other than any payment default) which default entitles the holders thereof to accelerate the maturity of all or a portion of the principal amount of such obligation and such holders have actually accelerated such obligation; provided, however, in the case of clause (1) or (2), if such default is cured or waived then such asset shall no longer be an Impaired Interest or (3) as to which there is known to the Collateral Manager (A) any bankruptcy, insolvency or receivership proceeding has been initiated in connection with the issuer of such CMBS, Real Estate CDO Security or REIT Debt Security, or (B) there has been proposed or effected any distressed exchange or other debt re-structuring where the issuer of such CMBS, Real Estate CDO Security or REIT Debt Security has offered the debt holders a new security or package of securities that either (x) amounts to a diminished financial obligation or (y) has the purpose of helping the issuer to avoid default, or (4) that has been rated “CC”, “D” or “SD” or below by S&P, “Ca” or “C” by Moody’s or “CC” or below from Fitch, or with respect to REIT Debt Securities, the issuer of which has a credit rating of “D” or “SD” or as to which S&P has withdrawn its rating after being rated “CC”, “D” or “SD”; or (5) as to which there is known to the Collateral Manager that the issuer thereof is in default (after giving effect to any applicable grace period or waiver) as to payment of principal and/or interest on another obligation (and such default has not been cured or waived) which is senior or pari passu in right of payment to such CMBS, Real Estate CDO Security or REIT Debt Security; provided, however, upon receipt of Rating Confirmation for such CMBS, Real Estate CDO Security or REIT Debt Security, the Collateral Manager may choose not to treat such a CMBS, Real Estate CDO Security or REIT Debt Security as an “Impaired Interest” under this clause (iii) or (B) as to which there has been a failure to pay interest in whole or in part for the lesser of (x) one year or (y) six consecutive payment periods (if such CMBS, Real Estate CDO Security or REIT Debt Security is rated (or privately rated for purposes of the issuance of the Notes) “BBB-” or higher by S&P or Fitch, or “Baa3” or higher by Moody’s) even if by its terms it provides for the deferral and capitalization of interest thereon;
provided that, for the avoidance of doubt, any Collateral Interest which has sustained a write down of principal balance in accordance with its terms will not necessarily be considered an Impaired Interest solely due to such write-down.
For purposes of calculating the Interest Coverage Ratio and Principal Coverage Ratio, an appraisal reduction of a Collateral Interest will be assumed to result in an implied reduction of principal balance for such Collateral Interest only if such appraisal reduction is intended to reduce the interest payable on such Collateral Interest and only in proportion to such interest reduction. For purposes of the Interest Coverage Ratio and Principal Coverage Ratio, any Collateral Interest that has sustained an implied reduction of principal balance due to an appraisal reduction will not be considered an Impaired Interest
34
solely due to such implied reduction. The Collateral Manager will notify the Trustee of any appraisal reductions of Collateral Interests if the Collateral Manager has actual knowledge thereof.
For purposes of this definition of “Impaired Interest,” the Maturity Extension Requirements will be satisfied with respect to any extension if the maturity date is extended in the case of Commercial Mortgage Loans, Subordinate Mortgage Loan Interests, Mezzanine Loans, Participation Interests, Credit Lease Loans and Tenant Lease Loans, to a new maturity date that is (A) not more than two years after the original maturity date and (B) not less than 10 years prior to the Stated Maturity Date; provided, however, that notwithstanding the foregoing requirements, “Maturity Extension Requirements” will be deemed satisfied with respect to any extensions as to which Rating Confirmation has been received.
Impaired Interests Amount means the sum, with respect to each Impaired Interest in the Collateral, of the lesser of (i) the product of (A) the Principal Balance of such Impaired Interest and (B) the Applicable Recovery Rate of such Impaired Interest and (ii) the product of (A) the Principal Balance of such Impaired Interest and (B) the Market Value of such Impaired Interest.
Income Note Distribution Account means the account designated the “Income Note Distribution Account” and established by the PAA Issued Note Paying Agent in the name of the PAA Issued Note Paying Agent for the benefit of the Issuer pursuant to the Paying Agency Agreement.
Income Note Excess Funds means all remaining Collateral Interest Collections and Collateral Principal Collections as set forth in Section 11.1 (a)(33) and 11.1 (b)(28).
Income Noteholder means, with respect to any Income Note, the Person in whose name such Income Note is registered in the Income Note Register.
Income Notes means the U.S.$63,675,000 Income Notes Due 2041.
Income Notes Stated Amount means U.S.$63,675,000
Indenture means this instrument and, if from time to time supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, as so supplemented or amended.
Indenture Issued Notes means, collectively, the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes and Class J Notes.
Indenture Issued Noteholder means, with respect to any Indenture Issued Note, the Person in whose name such Note is registered; provided that Beneficial Owners or Agent Members will have no rights under this Indenture with respect to Global Notes, and the Indenture Issued Noteholder may be treated by the Issuer and the Trustee (and any agent of any of the foregoing) as the owner of such Global Notes for all purposes whatsoever.
Independent means, as to any Person, any other Person (including, in the case of an accountant, or lawyer, a firm of accountants or lawyers and any member thereof) who (i) does not have and is not committed to acquire any material direct or any material indirect financial interest in such Person or in any Affiliate of such Person, (ii) is not connected with such Person as an Officer, employee, promoter, underwriter, voting trustee, partner, director or Person performing similar functions and (iii) if required to deliver an opinion or certificate to the Trustee pursuant to this Indenture, states in such opinion or certificate that the signer has read this definition and that the signer is Independent within the meaning hereof. “Independent” when used with respect to any accountant may include an accountant who audits
35
the books of such Person if in addition to satisfying the criteria set forth above the accountant is independent with respect to such Person within the meaning of Rule 101 of the Code of Ethics of the American Institute of Certified Public Accountants.
Initial Hedge Counterparty means Wachovia Bank, National Association.
Initial Maturity Date means, with respect to any Collateral Interest, the maturity date of such Collateral Interest without giving effect to any extension options available under the terms of such Collateral Interest.
Initial Payment Date means the Payment Date occurring in June 2006.
Initial Purchaser means Wachovia Capital Markets, LLC as initial purchaser of the Class A-1 Notes, Class A-2 Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes.
Initial Weighted Average Maturity means, as of any Measurement Date with respect to the Collateral Interests (other than Impaired Interests), the number obtained by (i) summing the products obtained by multiplying (a) the remaining term to maturity (in years, rounded to the nearest one tenth thereof, and based on the Initial Maturity Date) of each Collateral Interest (other than Impaired Interests) by (b) the outstanding Principal Balance of such Collateral Interest and (ii) dividing the sum by the aggregate Principal Balance at such time of all Collateral Interests (other than Impaired Interests).
Instrument has the meaning specified in Section 9-102(a)(47) of the UCC.
Interest Advance has the meaning specified in Section 10.17.
Interest Coverage Amount means, as of any Measurement Date, an amount equal to (i) the amount received or scheduled to be received as Collateral Interest Collections during the related Due Period, less (ii) the amounts scheduled to be paid on the related Payment Date pursuant to Section 11.1 (a)(1) through (3) and, for purposes of calculating the Interest Coverage Ratios, any amounts scheduled to be paid to the Interest Reserve Account on the related Payment Date pursuant to Section 11.1(a)(7); provided that (a) following the date on which a Collateral Interest becomes an Impaired Interest, scheduled Collateral Interest Collections shall not include any amount scheduled to be received on Impaired Interests or any amount scheduled to be received on securities that are currently deferring interest until (1) such amounts are actually received in Cash or (2) the cumulative aggregate amounts actually received on an Impaired Interest exceed the Principal Balance of such Impaired Interest, (b) the expected interest income on Floating Rate Collateral Interests and Eligible Investments shall be calculated using the then-current interest rate applicable thereto and (c) with respect to any Written Down Interest, the Interest Coverage Amount shall exclude any interest accrued on any Written Down Amount.
Interest Coverage Ratio means, on any Measurement Date for any Class of Notes, the ratio (expressed as a percentage) of (x) to (y), where (x) is equal to the Interest Coverage Amount as of such Measurement Date and where (y) is (1) in the case of the Class A/B Coverage Test, the sum of the Class A-R Commitment Fee and the Periodic Interest for the Class A Notes and Class B Notes for the Payment Date immediately following such Measurement Date (plus any Defaulted Interest and interest thereon), (2) in the case of the Class C/D Coverage Test, the amount determined by the foregoing clause (1) plus the sum of the Periodic Interest for the Class C Notes and Class D Notes for the Payment Date immediately following such Measurement Date (plus any Defaulted Interest and interest thereon) or (3) in the case of the Class E/F/G Coverage Test, the amount determined by the foregoing clause (2) plus the sum of the Periodic Interest for the Class E Notes, Class F Notes and Class G Notes for the Payment Date
36
immediately following such Measurement Date (plus any Defaulted Interest and interest thereon); provided, however, that the Interest Coverage Amount above shall be calculated after giving effect to any scheduled payment to the Interest Reserve Account for the Payment Date immediately following such Measurement Date.
Interest Coverage Test means, for any Class of Notes Outstanding, a test that is satisfied as of any Measurement Date when the applicable Interest Coverage Ratio is equal to or greater than the applicable Required Coverage Rates.
Interest Only Security means any security that by its terms provides for periodic payments of interest and does not provide for the repayment of a stated principal amount.
Interest Period means (i) with respect to the Notes other than the Class A-R Notes, (a) with respect to the Initial Payment Date, the period from and including the Closing Date to but excluding the Initial Payment Date and (b) thereafter with respect to each Payment Date, the period beginning on the first day following the end of the preceding Interest Period and ending on (and including) the day before the next Payment Date and (ii) with respect to the Class A-R Notes and any Class A-R Draw, (a) initially the period from and including the date of any Class A-R Draw to but excluding the earlier of (1) the first Payment Date immediately following such Class A-R Draw and (2) the Class A-R Prepayment Date in respect of such Class A-R Draw and (b) thereafter, each period from and including the immediately preceding Payment Date to but excluding the earlier of (1) the immediately succeeding Payment Date and (2) the Class A-R Prepayment Date
Interest Reserve Account means the account established by the Trustee, held in the name of the Trustee for the benefit and on behalf of the Secured Parties and into which the Trustee will deposit, on each Payment Date, the Interest Reserve Amount, if any, in accordance with the Priority of Payments.
Interest Reserve Amount means, as of any Calculation Date, the aggregate amount of Semi-Annual Pay Security Interest Reserve Amounts.
Interim Payment Date means a Business Day which is not a Payment Date on which the Class A-R Notes may be prepaid (in whole or in part) in accordance with Section 17.3 hereof.
Investment Advisers Act means the United States Investment Advisers Act of 1940, as amended.
Investment Company Act means the U.S. Investment Company Act of 1940, as amended, and the rules thereunder.
Investment Guidelines Event means the earlier of (i) the date the Issuer or the Collateral Manager has actual knowledge of (A) the Owner REIT’s intent to no longer qualify as a REIT or (B) other event that would cause the circumstances described in the following clause (ii) of this definition and (ii) the date on which the Collateral Manager has actual knowledge that the Issuer has ceased to be disregarded as an entity separate from the Owner REIT for U.S. federal income tax purposes.
Issue means Collateral Interests issued by the same issuer secured by the same collateral pool.
Issuer means N-Star REL CDO VI Ltd., an exempted company incorporated and existing under the law of the Cayman Islands, unless a successor Person shall have become the Issuer pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor Person.
37
Issuer Order and Issuer Request mean, respectively, a written order or a written request, which may be in the form of a standing order or request in each case dated and signed in the name of the Issuer (or, as expressly provided herein, the Collateral Manager on its behalf) by an Authorized Officer of the Issuer (or, as expressly provided herein, the Collateral Manager) and (if appropriate) the Co-Issuer, as the context may require or permit.
LIBOR means, with respect to each Interest Period (other than the first Interest Period), a floating rate equal to the London interbank offered rate for three-month U.S. Dollar deposits determined in the manner described in Schedule B. LIBOR for the first Interest Period is 4.91182%.
LIBOR Calculation Date has the meaning specified in Schedule B.
Liquidity Facility means a liquidity loan agreement, credit facility and/or purchase agreement providing for the several commitments of the Liquidity Providers party thereto in the aggregate to make loans to, or acquire interests in the assets of, a Holder of Class A-R Notes in an aggregate principal amount at any one time outstanding at least equal to the Class A-R Commitments of such Holder.
Liquidity Provider means a bank or other institution or entity that a Holder of a Class A-R Note (or prospective transferee) is entitled under a Liquidity Facility to borrow from, or sell an interest in assets to.
Listed Bidders has the meaning specified in Schedule E.
London Banking Day has the meaning specified in Schedule B.
Majority means (a) with respect to any Class or Classes of Rated Notes, the Holders of more than 50% of the Aggregate Outstanding Amount of the Rated Notes of such Class or Classes of Rated Notes, as the case may be and (b) with respect to Income Notes, the Holders of more than 50% Income Notes Stated Amount.
Mandatory Class A-R Draw Date means the earliest to occur of (i) the last day of the Reinvestment Period, (ii) the date of an acceleration of the Notes following the occurrence and continuance of an Event of Default and (iii) the occurrence and continuance of an Event of Default specified in Section 5.1(d), (f) or (g).
Margin Stock means “margin stock” as defined under Regulation U issued by the Board of Governors of the Federal Reserve System.
Market Value means, on any date of determination, the average of three or more bid-side prices expressed as a percentage of the par amount, obtained from independent, nationally recognized financial institutions in the relevant market for one or more Collateral Interests, each unaffiliated with each other and the Collateral Manager, as certified by the Collateral Manager (to the extent that such bid-side prices may be obtained by the Collateral Manager using its commercially reasonable efforts and commercially reasonable business judgment). If three or more bid-side prices cannot be so obtained, then the Market Value on such date of determination will be the lower of two bid-side prices, if two bid-side prices are obtained in the manner described above, and the sole bid-side price if only one bid-side price is obtained in the manner described above. If no bids can be obtained in the manner described above, the Market Value will be the price, expressed as a percentage of the par amount, determined by the Collateral Manager in its commercially reasonable judgment.
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Master Trust Agreement means that certain Master Trust Agreement, dated as of March 17, 2006, as the same may be amended or supplemented from time to time, between the Depositor and the Underlying Trustee.
Maximum Class A-R Commitment means U.S.$70,000,000.
Measurement Date means any of the following: (a) the Effective Date; (b) any date after the Effective Date upon which the Issuer disposes or acquires (which date of acquisition shall be deemed to be the date on which the Issuer enters into commitments to acquire such Collateral Interest) any Collateral Interest; (c) each Calculation Date; (d) the last Business Day of each March, June, September and December; and (e) with reasonable notice to the Issuer, the Collateral Manager and the Trustee, any other Business Day that any Rating Agency or Holders of more than 50% of the aggregate principal amount of any Class of Rated Notes requests to be a “Measurement Date”; provided that if any such date would otherwise fall on a day that is not a Business Day, the relevant Measurement Date will be the next succeeding day that is a Business Day.
Mezzanine Loans means mezzanine loans secured by ownership interests in entities owning commercial properties.
Moneyline Telerate Page 3750 means the display page so designated on Moneyline Telerate Service (or such other page as may replace that page on that service, or such other service as may be nominated as the information vendor, for the purposes of displaying rates comparable to LIBOR).
Monitoring Fee means, with respect to each Payment Date, an amount equal to 0.10% per annum of the Fee Basis Amount payable to the Collateral Manager pursuant to the Collateral Management Agreement.
Moody’s means Xxxxx’x Investors Service, Inc. and any successor or successors thereto.
Moody’s Estimated Rating has the meanings specified in Section 12.2(c).
Moody’s Maximum Weighted Average Rating Factor Test means a test that will be satisfied on any Measurement Date if the Moody’s Tranched Weighted Average Rating Factor of the Collateral Interests is equal to or less than 5600.
Moody’s Minimum Average Recovery Rate means, as of any date or determination, a rate expressed as a percentage equal to the number obtained by (i) summing the products obtained by multiplying the Principal Balance of each Collateral Interest by its Moody’s Recovery Rate and (ii) dividing such sum by the Collateral Interest Principal Balance less cash and Eligible Investments representing Collateral Principal Collections and (iii) rounding up to the first decimal place.
Moody’s Minimum Average Recovery Rate Test means a test that will be satisfied as of any Measurement Date if the Moody’s Minimum Average Recovery Rate is greater than or equal to 20%.
Moody’s Post-Acquisition Compliance Test means the test that is satisfied if the Moody’s Maximum Weighted Average Rating Factor Test, calculated incorporating any provided Moody’s Estimated Rating, is satisfied, or, if the Moody’s Maximum Weighted Average Rating Factor Test was not satisfied prior to the purchase of the related Substitute Collateral Interest, the Moody’s Maximum Weighted Average Rating Factor Test will be maintained or improved immediately following such purchase.
Moody’s Post-Acquisition Compliance Test Failure has the meanings specified in Section 12.2(c).
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Xxxxx’x Rating means, with respect to any Collateral Interest:
(i) if such Collateral Interest is rated by Moody’s, such rating;
(ii) if such Collateral Interest is not rated by Moody’s, then the Xxxxx’x Rating of such Collateral Interest shall be deemed to be the rating thereof as may be assigned by Moody’s upon the request of the Issuer or the Collateral Administrator, provided that the Collateral Administrator may, consistent with Moody’s published criteria for underwriting and tranching of commercial real estate loans, use its estimated tranched ratings for Collateral Interests representing up to 20% of the Collateral Interest Principal Balance represented by Commercial Mortgage Loans, Subordinate Mortgage Loan Interests, Preferred Equity Securities, and Mezzanine Loans; provided that the Collateral Manager shall submit such Collateral Interests to the Collateral Administrator for a Moody’s estimated rating within 30 days of acquisition;
(iii) with respect to the CMBS that are CMBS conduit securities (i.e., CMBS representing interests in a pool of commercial mortgage loans), if such Collateral Interest is not rated by Moody’s, and no other security or obligation of the issuer or the obligor is rated by Moody’s and neither the Issuer nor the Collateral Administrator obtains a Xxxxx’x Rating for such Collateral Interest pursuant to clause (ii) above, then the Xxxxx’x Rating of such Collateral Interest may be determined using any one of the following methods:
(a) if such Collateral Interest is rated by both S&P and Fitch or if such Collateral Interest is only rated by either S&P or Fitch but Moody’s has rated other classes in the same transaction then the Xxxxx’x Rating will be 2 subcategories lower than the lowest Moody’s equivalent rating then outstanding on the Collateral Interest; or
(b) if such Collateral Interest is only rated by one other Rating Agency, then the Issuer or the Collateral Administrator on behalf of the Issuer may request that Moody’s assign a rating for such Collateral Interest, which shall be such Collateral Interest’s Xxxxx’x Rating.
(iv) with respect to the Collateral Interests that are REIT Debt Securities or other corporate debt securities, if such Collateral Interest is not rated by Moody’s, and no other security or obligation of the issuer or the obligor is rated by Moody’s and neither the Issuer nor the Collateral Administrator obtains a Xxxxx’x Rating for such Collateral Interest pursuant to clause (ii) above, then the Xxxxx’x Rating of such Collateral Interest may be determined using any one of the following methods:
(a) if such Collateral Interest is rated at least “BBB” by S&P, then the Xxxxx’x Rating of such Collateral Interest will be one subcategory below the Moody’s equivalent of the rating assigned by S&P; or
(b) if such Collateral Interest is rated “BB+” or below by S&P, then the Xxxxx’x Rating of such Collateral Interest will be two subcategories below the Moody’s equivalent of the rating assigned by S&P.
Notwithstanding the foregoing, Collateral Interests representing no more that 20% of the Collateral Interest Principal Balance may be rated pursuant to clauses (iii) and (iv) above and no single Collateral Interest Principal Balance that represents more than 5% of the Collateral Interest Principal Balance can be rated pursuant to clause (iii) or (iv) above.
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Xxxxx’x Rating Factor means with respect to any Collateral Interest, the number set forth in the table below opposite the Xxxxx’x Rating of such Collateral Interest.
Xxxxx’x Rating |
|
Xxxxx’x Rating Factor |
|
Xxxxx’x Rating |
|
Xxxxx’x Rating Factor |
|
Aaa |
|
1 |
|
Ba1 |
|
940 |
|
Aa1 |
|
10 |
|
Ba2 |
|
1,350 |
|
Aa2 |
|
20 |
|
Ba3 |
|
1,766 |
|
Aa3 |
|
40 |
|
B1 |
|
2,220 |
|
A1 |
|
70 |
|
B2 |
|
2,720 |
|
A2 |
|
120 |
|
B3 |
|
3,490 |
|
A3 |
|
180 |
|
Caa1 |
|
4,770 |
|
Baa1 |
|
260 |
|
Caa2 |
|
6,500 |
|
Baa2 |
|
360 |
|
Caa3 |
|
8,070 |
|
Baa3 |
|
610 |
|
Ca or lower |
|
10,000 |
|
Moody’s Recovery Rate means, with respect to a Collateral Interest on any Measurement Date, an amount equal to the percentage for such Collateral Interest set forth in the Moody’s Recovery Rate Matrix attached as Schedule C hereto) in (x) the applicable table and (y) the row in such table opposite the Xxxxx’x Rating (determined in accordance with procedures prescribed by Moody’s for such Collateral Interest on the date of its purchase by the Issuer or, in the case of an Impaired Interest, the Xxxxx’x Rating immediately prior to default).
Moody’s Special Amortization Pro Rata Condition means a condition that will be satisfied with respect to any Payment Date if either (i) (A) the Collateral Quality Tests (other than the Moody’s Weighted Average Initial Maturity Test, the Moody’s Weighted Average Extended Maturity Test, the Weighted Average Fixed Rate Coupon, the Weighted Average Spread Test, the Weighted Average Life Test, the Fitch Poolwide Expected Loss Test, the Fitch Loan Diversity Index Test and the S&P CDO Monitor Test) and each of the Coverage Tests are satisfied as of the related Calculation Date and (B) the aggregate balance of the Collateral Interests as of the related Calculation Date is greater than an amount equal to 50% of the aggregate Principal Balance of the Collateral Interests on the Effective Date or (ii) Rating Confirmation has been provided by Moody’s.
Moody’s Tranched Weighted Average Rating Factor means, on any Measurement Date the number obtained by dividing (i) the sum of the series of products obtained for any Collateral Interest that by multiplying (a) the tranched principal balance on such Measurement Date of each such Collateral Interest by (b) its respective Xxxxx’x Rating Factor on such Measurement Date by (ii) the aggregate tranched principal balance on such Measurement Date of all Collateral Interests and rounding the result up to the nearest whole number.
Moody’s Weighted Average Extended Maturity Test means a test that will be satisfied on any Measurement Date if the Extended Weighted Average Maturity of the Collateral Interests as of such Measurement Date is five years or less.
Moody’s Weighted Average Initial Maturity Test means a test that will be satisfied on any Measurement Date if the Initial Weighted Average Maturity of the Collateral Interest as of such Measurement Date is four years or less.
Mortgaged Property means the multifamily or commercial property or properties securing the Commercial Mortgage Loans.
41
Nonrecoverable Advance means any Interest Advance previously made or proposed to be made which, in the judgment of the Advancing Agent or the Trustee, as applicable, will not be ultimately recoverable from subsequent payments or collections with respect to the Collateral Interests. Any determination of recoverability by the Advancing Agent or the Trustee, as applicable, shall be subject to the standard set forth in Section 10.17.
NorthStar Subsidiary shall have the meaning ascribed to such term in the S&P Letter.
Note Paying Agent means any Person authorized by the Issuer to pay the principal of or interest on any Indenture Issued Notes on behalf of the Issuer as specified in Section 7.2.
Note Payment Sequence means the application of Collections to pay principal of the Rated Notes in the following order, in each case until paid in full: (i) Class A Senior Notes, pro rata, (ii) Class A-2 Notes, (iii) Class B Notes, (iv) Class C Notes, (v) Class D Notes, (vi) Class E Notes, (vii) Class F Notes, (viii) Class G Notes, (ix) Class H Notes, (x) Class J Notes and (xi) Class K Notes.
Note Register and Note Registrar have the respective meanings specified in Section 2.4(a).
Note Transfer Agent has the meaning specified in Section 2.4(a).
Note Valuation Report has the meaning specified in Section 10.11(a).
Notes means, collectively, the Rated Notes and the Income Notes.
Offer means, with respect to any security, (a) any offer by the issuer of such security or by any other Person made to all of the holders of such security to purchase or otherwise acquire such security (other than pursuant to any redemption in accordance with the terms of the related Underlying Instruments) or to convert or exchange such security into or for Cash, securities or any other type of consideration or (b) any solicitation by the issuer of such security or any other Person to amend, modify or waive any provision of such security or any related Underlying Instrument.
Offered Notes means, collectively, the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes.
Offering means the offering of the Rated Notes (other than the Class H Notes, Class J Notes and Class K Notes) under the Offering Circular.
Offering Circular means the Offering Circular, prepared and delivered on or prior to the Closing Date in connection with the offer and sale of the Offered Notes, as amended or supplemented from time to time.
Officer means, (a) with respect to the Issuer and any corporation, the Chairman of the Board of Directors (or, with respect to the Issuer, any director), the President, any Vice President, the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer of such entity; (b) with respect to any bank or trust company acting as trustee of an express trust or as custodian, any Trust Officer; and (c) with respect to the Co-Issuer, a manager of such entity.
Opinion of Counsel means a written opinion addressed to the Trustee, each Hedge Counterparty and each Rating Agency (each, a Recipient), in form and substance reasonably satisfactory to each Recipient, of an attorney at law admitted to practice before the highest court of any state of the United States or the District of Columbia (or the Cayman Islands, in the case of an opinion relating to the laws of the Cayman Islands), which attorney may, except as otherwise expressly provided in this Indenture, be inside or
42
outside counsel for the Issuer or the Co-Issuer, as the case may be, and which attorney shall be reasonably satisfactory to the Trustee. Whenever an Opinion of Counsel is required hereunder, such Opinion of Counsel may rely on opinions of other counsel who are so admitted and so satisfactory which opinions of other counsel shall accompany such Opinion of Counsel and shall either be addressed to each Recipient or shall state that each Recipient shall be entitled to rely thereon.
Optional Redemption has the meaning specified in Section 9.1(a).
Ordinary Shares means the 1,000 ordinary shares, par value U.S.$1.00 per share issued by the Issuer.
Outstanding means with respect to the Notes as of any Measurement Date, any and all Notes theretofore authenticated and delivered under this Indenture and the Paying Agency Agreement other than Notes cancelled, redeemed, exchanged or replaced in accordance with the terms of this Indenture or the Paying Agency Agreement, as applicable; provided that in determining whether the Holders of the requisite percentage of Notes have given any direction, notice, consent, approval or objection, (A) any Notes held or beneficially owned by the Collateral Manager or any of its Affiliates or by an account or fund for which the Collateral Manager or any of its Affiliates acts as the investment advisor with discretionary authority will be disregarded with respect to any vote or consent relating to the removal, termination, substitution or replacement of the Collateral Manager or the assignment by the Collateral Manager of its rights and obligations under the Collateral Management Agreement, except for any assignments or transfers by the Collateral Manager of its rights and obligations to Affiliates of the Collateral Manager, subject to any applicable requirements under the Investment Advisers Act and (B) the Class A-R Notes will be assumed to be fully drawn.
Owner REIT means an entity which qualifies as a REIT for U.S. federal income tax purposes and which owns, directly or indirectly, through one or more Qualified REIT Subsidiaries thereof or one or more entities disregarded as entities separate from such REIT or its Qualified REIT Subsidiaries, 100% of the Class H Notes, the Class J Notes, the Class K Notes, the Income Notes and the Ordinary Shares (other than any Class H Notes, Class J Notes or Class K Notes with respect to which the Issuer has received an Opinion of Counsel rendered by nationally recognized U.S. tax counsel experienced in such matters to the effect that the Class H Notes, Class J Notes or Class K Notes, as applicable, will be treated as indebtedness for U.S. federal income tax purposes).
PAA Issued Note Paying Agent means Xxxxx Fargo Bank, National Association, and any successors or assigns in its capacity as PAA Issued Note Paying Agent under the Paying Agency Agreement.
PAA Issued Note Paying Agent Expenses means, with respect to any Payment Date, an amount equal to the sum of all expenses or indemnities incurred by, or otherwise owing to, the PAA Issued Note Paying Agent during the preceding Due Period in accordance with the Paying Agency Agreement.
PAA Issued Note Paying Agent Fee means, with respect to any Payment Date, for so long as any Class K Notes or Income Notes remain Outstanding, the fee payable to the PAA Issued Note Paying Agent in an aggregate amount equal to U.S.$10,000 per annum.
PAA Issued Note Register means, with respect to the Income Notes and Class K Notes, the note register maintained by the PAA Issued Note Registrar.
PAA Issued Note Registrar means Xxxxx Fargo Bank, National Association, and any successors or assigns in its capacity as PAA Issued Note Registrar under the Paying Agency Agreement.
PAA Issued Notes means, together, the Class K Notes and Income Notes.
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Participation Interests means pari passu participation interests in commercial mortgage loans, Subordinate Mortgage Loan Interests and Mezzanine Loans.
Paying Agency Agreement means that certain Paying Agency Agreement, dated as of March 17, 2006, as the same may be amended or supplemented from time to time, between the Issuer and the PAA Issued Note Paying Agent.
Paying Agents means, together, the Note Paying Agent and the PAA Issued Note Paying Agent.
Payment Account means the Securities Account designated the “Payment Account” and established in the name of the Trustee pursuant to Section 10.9.
Payment Date means June 16, 2006, and, thereafter, quarterly on each September 16, December 16, March 16 and June 16, or if such day is not a Business Day, the next succeeding Business Day, commencing in June 2006 and ending on the applicable Stated Maturity Date (or in the case of the Class A-R Notes, the related repayment date, if sooner).
Periodic Interest means the amount of interest payable in respect of each Class of Floating Rate Notes, calculated with respect to each such Class for the relevant Interest Period by multiplying the Applicable Periodic Interest Rate by the Aggregate Outstanding Amount of the related Class at the close of business on the day immediately preceding the relevant Payment Date (and in the case of the Class A-R Notes, each Class A-R Prepayment Date), multiplying the resulting figure by the actual number of days in such Interest Period, dividing by 360 and rounding the resulting figure to the nearest U.S.$0.01 (U.S.$0.005 being rounded upwards).
Permitted NS Purchaser means (i) NorthStar OS VI, LLC or (ii) NS Advisors, LLC or any “affiliate” thereof within the meaning of Rule 405 under the Securities Act that is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act.
Person means any individual, corporation, partnership, limited liability partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization or government or any agency or political subdivision thereof or any similar entity.
XXX Xxxx means any security that, pursuant to the terms of the related Underlying Instruments, permits the payment of interest thereon to be deferred or capitalized as additional principal thereof or not pay interest when scheduled (but without being an Impaired Interest) or that issues identical securities in lieu of payments of interest in Cash.
Plan Asset Regulation means the U.S. Department of Labor regulation at 29 C.F.R. Section 2510.3-101.
Placement Agent means Wachovia Capital Markets, LLC in its capacity as placement agent of the Class A-R Notes.
Pledged Collateral Interest means as of any date of determination, any Collateral Interest that has been Granted to the Trustee and has not been released from the lien of this Indenture pursuant to Section 10.12.
Pledged Securities means on any date of determination, (a) the Collateral Interests, Equity Interests and the Eligible Investments that have been Granted to the Trustee and (b) all non-Cash proceeds thereof, in each case, to the extent not released from the lien of this Indenture pursuant hereto.
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Preferred Equity Security means a security, providing for regular payments of dividends or other distributions, representing an equity interest in an entity (including, without limitation, a partnership or a limited liability company) that is a borrower under a mortgage loan secured by commercial properties (or in an entity operating or controlling, directly or through affiliates, such commercial properties), which is generally senior with respect to the payments of dividends and other distributions, redemption rights and rights upon liquidation to such entity’s common equity.
Principal Balance means, with respect to any Collateral Interest or Eligible Investment, as of any date of determination, the outstanding principal amount of such Collateral Interest or Eligible Investment; provided that the Principal Balance of (i) any Collateral Interest which permits the deferral or capitalization of interest will not include any outstanding balance of the deferred and/or capitalized interest except in the case of Earn-Out Assets that provide for a Future Advance Amount with respect to debt service, if the amount has been capitalized prior to the acquisition by the Issuer and provided the amount did not exceed the amount available for debt service or other Future Advance Amounts, (ii) any Equity Interest will be zero, (iii) any putable Collateral Interest which matures after the Stated Maturity Date will be the lower of the put price and the outstanding principal amount, (iv) any Collateral Interest or Eligible Investment in which the Trustee does not have a first priority perfected security interest shall be deemed to be zero, (v) the Principal Balance of an Earn-Out Asset will be the outstanding principal balance of such Earn-Out Asset, plus any Future Funding Obligations that have not been irrevocably reduced with respect to such Earn-Out Asset and (vi) any Preferred Equity Security will be equal to the component of the liquidation price that is not attributable to the return of capital by its governing documents; provided, further, that for purposes of calculating the Principal Coverage Amount, an appraisal reduction of a Collateral Interest will be assumed to result in an implied reduction of Principal Balance for such Collateral Interest only if such appraisal reduction is intended to reduce the interest payable on such Collateral Interest and only in proportion to such interest reduction.
Principal Coverage Amount means, on any Measurement Date, an amount equal to (i) the aggregate Principal Balance of all Collateral Interests (other than Impaired Interests, Written Down Interests and Deferred Interest PIK Bonds) included in the Collateral on such date, plus (ii) the aggregate Principal Balance of the Eligible Investments in the Collateral Account on such date that represent Collateral Principal Collections, plus (iii) the Impaired Interests Amount, plus (iv) with respect to Written Down Interests, the Reduced Principal Balance, plus (v) the Deferred Interest XXX Xxxx Amount, plus (vi) the Aggregate Class A-R Undrawn Amount (without duplication). For purposes of calculating the Principal Coverage Amount, any Collateral Interest that has sustained an implied reduction of Principal Balance due to an appraisal reduction will not be considered an Impaired Interest solely due to such implied reduction.
Principal Coverage Ratio means, on any Measurement Date for any Class of Notes, the ratio (expressed as a percentage) based on the ratio of (x) to (y), where (x) is the Principal Coverage Amount as of such Measurement Date and (y) is (1) in the case of the Class A/B Coverage Test, the sum of the aggregate principal amount of the then Outstanding Class A Notes and Class B Notes (assuming for purposes of the calculation that the Class A-R Commitments are fully drawn) as of such Measurement Date, (2) in the case of the Class C/D Coverage Test, the amount determined by the foregoing clause (1) plus the sum of the aggregate principal amount (including any Cumulative Applicable Periodic Interest Shortfall Amount and any interest accrued on such amount) then Outstanding of the Class C Notes and Class D Notes as of such Measurement Date or (3) in the case of the Class E/F/G Coverage Test, the amount determined by the foregoing clause (2) plus the sum of the aggregate principal amount (including any Cumulative Applicable Periodic Interest Shortfall Amount and any interest accrued on such amount) then Outstanding of the Class E Notes, Class F Notes and Class G Notes as of such Measurement Date.
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Principal Coverage Test means, for any Class of Notes Outstanding, a test satisfied on any Measurement Date if the applicable Principal Coverage Ratio as of such Measurement Date is equal to or greater than the applicable Required Coverage Ratio.
Priority of Payments means, collectively, the priority of payments specified in Section 11.1(a), (b) and (c) or upon an Event of Default, the priority of payments in connection therewith.
Pro Rata Principal Coverage Ratio means, as of any Measurement Date, the ratio (expressed as a percentage) based on the ratio of (x) to (y), where (x) is the Principal Coverage Amount as of such Measurement Date and (y) is the sum of the aggregate principal amount then Outstanding of the Class A Notes and Class B Notes (assuming for purposes of the calculation that the Class A-R Commitments are fully drawn) as of such Measurement Date.
Pro Rata Principal Coverage Test will be met as of any Measurement Date if the Pro Rata Principal Coverage Ratio as of such Measurement Date is equal to or greater than or equal to 139.35%.
Proceeding means any suit in equity, action at law or other judicial or administrative proceeding.
Proposed Portfolio means the portfolio (measured by Principal Balance) of (a) the Pledged Collateral Interests and the proceeds of disposition thereof held as Cash, (b) Uninvested Proceeds held as Cash and (c) Eligible Investments purchased with Uninvested Proceeds or the proceeds of disposition of Pledged Collateral Interests resulting from the sale, maturity or other disposition of a Pledged Collateral Interest or a proposed purchase of a Collateral Interest, as the case may be.
Purchase and Placement Agreement means the agreement, dated as of the Closing Date, among the Co-Issuers, the Initial Purchaser and the Placement Agent relating to the purchase and placement of the Offered Notes.
Purchased Accrued Interest means all payments of interest received, or amounts collected that are attributable to interest received on Collateral Interests and Eligible Investments, to the extent such payments or amounts constitute accrued interest purchased with Collateral Principal Collections except for interest accrued on Collateral Interests prior to the Closing Date.
Qualified Bidder List means a list of not less than three Persons that are Independent from one another and the Issuer prepared by the Collateral Manager and delivered to the Trustee prior to an Auction, as may be amended and supplemented by the Collateral Manager from time to time upon written notice to the Trustee; provided that (i) the Qualified Bidder List may include the Collateral Manager as a Qualified Bidder if it is Independent from the other Persons on such list and (ii) any such notice referred to above shall only be effective on any Auction Date if it was received by the Trustee at least two Business Days prior to such Auction Date.
Qualified Bidders means the Persons whose names appear from time to time on the Qualified Bidder List.
Qualified Institutional Buyer has the meaning given in Rule 144A under the Securities Act.
Qualified Institutional Lender means a qualified institutional lender of the type typically permitted to acquire subordinate interests in commercial mortgage loans (all or a portion of which will be included in a CMBS transaction) pursuant to the documents creating such interests.
Qualified Purchaser means (i) a “qualified purchaser” as defined in Section 2(a)(51) of the Investment Company Act and the rules thereunder, (ii) a “knowledgeable employee” with respect to the Issuer as
46
defined in rule 3c-5 under the Investment Company Act or (iii) a company beneficially owned exclusively by one or more “qualified purchasers” and/or “knowledgeable employees” with respect to the Issuer.
Qualified REIT Subsidiary means a “Qualified REIT Subsidiary” within the meaning of Section 856(i)(2) of the Code.
Qualifying Foreign Obligor means a corporation, partnership or other entity organized or incorporated under the law of any of Australia, Canada, France, Germany, Ireland, Italy, New Zealand, Sweden, Switzerland or the United Kingdom, so long as the unguaranteed, unsecured and otherwise unsupported long-term Dollar sovereign debt obligations of such country are rated “Aa2” or better by Moody’s and “AA” or better by S&P.
Rake Bond means a CMBS backed solely by a single promissory note secured by a mortgaged property, which promissory note is subordinate in right of payment to one or more separate promissory notes secured by the same mortgaged property.
Ramp-Up Period means the period commencing on the Closing Date and ending on the Effective Date.
Rated Note Calculation Agent has the meaning specified in Section 7.15.
Rated Notes means, collectively, the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes.
Rated Noteholder means, with respect to any Rated Note, the Person in whose name such Note is registered; provided that Beneficial Owners or Agent Members will have no rights under this Indenture with respect to Global Notes, and the Rated Noteholder may be treated by the Issuer and the Trustee (and any agent of any of the foregoing) as the owner of such Global Notes for all purposes whatsoever.
Rating means, as the context requires, an S&P Rating, Fitch Rating or a Xxxxx’x Rating.
Rating Agency means each of (i) Moody’s, for so long as any of the Outstanding Rated Notes are rated by Moody’s (including any private or confidential rating), (ii) Fitch, for so long as any of the Outstanding Rated Notes are rated by Fitch (including any private or confidential rating), and (iii) S&P, for so long as any of the Outstanding Rated Notes are rated by S&P (including any private or confidential rating) or, with respect to Pledged Securities generally, if at any time Xxxxx’x, Fitch or S&P ceases to provide rating services, any other nationally recognized investment rating agency selected by the Issuer (upon consultation with the Collateral Manager) and reasonably satisfactory to a Majority of each Class of Rated Notes. In the event that at any time Moody’s ceases to be a Rating Agency, references to rating categories of Moody’s in this Indenture shall be deemed instead to be references to the equivalent categories of such other rating agency as of the most recent date on which such other rating agency and Moody’s published ratings for the type of security in respect of which such alternative rating agency is used. In the event that at any time S&P ceases to be a Rating Agency, references to rating categories of S&P in this Indenture shall be deemed instead to be references to the equivalent categories of such other rating agency as of the most recent date on which such other rating agency and S&P published ratings for the type of security in respect of which such alternative rating agency is used.
Rating Confirmation means, with respect to any specified action or determination, for so long as any of the Rated Notes are Outstanding and rated by Xxxxx’x, Fitch or S&P, the receipt of written confirmation by each Rating Agency rating any Rated Notes, that such specified action or determination will not result in the reduction or withdrawal or other adverse action with respect to their then-current ratings on the Rated Notes (including any private or confidential rating) unless Rating Confirmation is specified herein
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to be required by only Xxxxx’x, Fitch or S&P, in which case such Rating Confirmation will be sufficient. For the purposes of this definition, “Rating Agencies” will be deemed to not include Fitch unless the proposed action or matter relates to the issuance of additional notes, or any amendment or modification, or any proposed amendment or modification, to any Transaction Document, and in any such case notification will be made to Fitch within 30 days following such amendment or modification.
Rating Confirmation Failure has the meaning specified in Section 7.18(e).
Real Estate CDO Securities means securities that entitle the holders thereof to receive payments that depend on the cash flow from or the credit exposure to a portfolio consisting primarily of (i) REIT Debt Securities, (ii) commercial mortgage backed securities, (iii) commercial mortgage loans or interests therein or (iv) a combination of the foregoing; provided that such dependence may in addition be conditioned upon rights or additional assets designed to assure the servicing or timely distribution of proceeds to holders of the Real Estate CDO Securities such as a financial guaranty insurance policy.
Record Date means the date on which the Holders of Rated Notes entitled to (i) vote with respect to any matters under this Indenture are determined, such date being the 15th day (whether or not a Business Day) prior to the date the Trustee delivers notice with respect to such vote and (ii) receive a payment in respect of principal or interest on the succeeding Payment Date or Redemption Date are determined, such date as to any Payment Date or Redemption Date with respect to any Global Note being the first day (whether or not a Business Day) prior to such Payment Date or Redemption Date and with respect to any Certificated Note being the fifteenth day (whether or not a Business Day) prior to such Payment Date or Redemption Date.
Redemption means an Optional Redemption, an Auction Call Redemption or a Tax Redemption.
Redemption Date means the Payment Date upon which the Rated Notes are redeemed pursuant to an Optional Redemption, an Auction Call Redemption or a Tax Redemption.
Redemption Date Statement has the meaning specified in Section 10.11(b).
Redemption Price means, (i) with respect to each Class of Rated Notes, (a) their then-outstanding aggregate principal amount plus (b) accrued interest thereon to the date of redemption to the extent not already paid (including, without limitation, any Cumulative Applicable Periodic Interest Shortfall Amount together with interest thereon) plus (c) unreimbursed Interest Advances plus (d) with respect to the Class A-R Notes, any accrued and unpaid Class A-R Increased Costs and Class A-R Commitment Fee and (ii) if the Income Notes are redeemed, the “Redemption Price” for the Income Notes, means an amount equal to the aggregate of any residual amounts distributable on the Income Notes in respect of such redemption pursuant to Section 11.1(a) and (b).
Reduced Principal Balance means, with respect to each Written Down Interest, the original Principal Balance of such Written Down Interest minus the Written Down Amount as notified by or on behalf of the related issuer or trustee to the holders of such Written Down Interest (including appraisal reductions on CMBS).
Reference Banks has the meaning specified in Schedule B.
Registered means in registered form for U.S. federal income tax purposes and issued after July 18, 1984; provided that a certificate of interest in a trust that is treated as a grantor trust for U.S. federal income tax purposes will not be treated as Registered unless each of the obligations or securities held by the trust was issued after that date.
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Registered Form has the meaning specified in Section 8-102(a)(13) of the UCC.
Regulation S means Regulation S under the Securities Act.
Regulation S Certificated Note has the meaning specified in Section 2.4(b)(1)(vi).
Regulation S Global Note has the meaning specified in Section 2.1(a).
Regulation S Note has the meaning specified in Section 2.1(a).
Regulation S Transfer Certificate has the meaning specified in Section 2.4(b)(1)(iii).
Regulation U means Regulation U of the Board of Governors of the Federal Reserve System, 12 C.F.R. § 221, or any successor regulation.
Reimbursement Rate means a per annum rate equal to the “prime rate” as published in the “Money Rates” section of the Wall Street Journal, as such “prime rate” may change from time to time.
Reinvestment Asset Information has the meaning specific in Section 12.2(c).
Reinvestment Criteria means, with respect to any reinvestment of Collateral Principal Payments, Sale Proceeds, Class A-R Draws and amounts on deposit in the Earn-Out Asset Account, the following criteria:
(i) the Collateral Quality Tests are satisfied, or, if any Collateral Quality Test was not satisfied immediately prior to such investments, the extent of compliance with such Collateral Quality Test will be maintained or improved immediately following such reinvestment;
(ii) after the Effective Date, the Coverage Tests are satisfied, or, if any Coverage Test was not satisfied immediately prior to such investments, such Coverage Test will be maintained or improved following such reinvestment; and
(iii) no Event of Default has occurred and is continuing.
Reinvestment Period means the period beginning on the Closing Date and ending on and including the Payment Date in June 2011.
REIT means a “real estate investment trust” as defined in Section 856 of the Code.
REIT Debt Securities means securities issued by a real estate investment trust (as defined in Section 856 of the Code or any successor provision) whose assets consist (except for rights or other assets designed to assure the servicing or timely distribution of proceeds to holders of such securities) of a portfolio of real property interests.
Relevant Jurisdiction means, as to any obligor on any Collateral Interest, any jurisdiction (a) in which the obligor is incorporated, organized, managed and controlled or considered to have its seat, (b) where an office through which the obligor is acting for purposes of the relevant Collateral Interest is located, (c) in which the obligor executes Underlying Instruments or (d) in relation to any payment, from or through which such payment is made.
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Repository means the internet-based password protected electronic repository of transaction documents relating to privately offered and sold collateralized debt obligation securities located at xxx.xxxxxxxxxx.xxx and maintained by the Bond Market Association.
Required Coverage Ratio means, with respect to the specified Classes of Notes and the related Interest Coverage Test or Principal Coverage Test, as the case may be, as of any Calculation Date, the applicable percentage indicated below opposite such specified Classes:
Class |
|
Principal Coverage Test |
|
Interest Coverage Test |
|
Class A/B |
|
140.10 |
% |
189.20 |
% |
Class C/D |
|
132.40 |
% |
179.50 |
% |
Class E/F/G |
|
124.20 |
% |
164.20 |
% |
Requisite Noteholders means the Holders of 662/3% or more of the then Aggregate Outstanding Amount of the Controlling Class.
Reserved Matters has the meaning specified in Section 8.2.
Retained Rights means with respect to each initial Collateral Interest (i) that is a Subordinate Mortgage Loan Interest, Mezzanine Loan or Preferred Equity Security, any right of the holder thereof to cure payment or other mortgage loan defaults by the borrower of the related Commercial Mortgage Loan or to exercise any purchase option with respect to the related Senior Loan, each in accordance with the applicable Underlying Instrument and (ii) that is a Subordinate Mortgage Loan Interest, Mezzanine Loan, Commercial Mortgage Loan, Participation Interest, Credit Lease Loan, Tenant Lease Loan Interest or Preferred Equity Security, any right of the holder thereof to receive any exit fees, extension fees or prepayment premiums.
Rule 144A means Rule 144A under the Securities Act.
Rule 144A Certificated Note has the meaning specified in Section 2.4(b)(1)(vi).
Rule 144A Global Note has the meaning specified in Section 2.1(b).
Rule 144A Information means such information as is specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).
Rule 144A Note has the meaning specified in Section 2.1(b).
Rule 144A Transfer Certificate has the meaning specified in Section 2.4(b)(1)(ii).
S&P or Standard & Poor’s means Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., and any successor or successors thereto.
S&P CDO Monitor means the dynamic, analytical computer model provided by S&P to the Collateral Manager and the Trustee (together with such instructions and assumptions as are necessary to run such model) on or prior to the Effective Date used to determine the credit risk of a portfolio of Collateral Interests, as may be modified by S&P from time to time.
S&P CDO Monitor Test means the test which is satisfied, as of any Calculation Date, if each of the Class A Senior Note Default Differential, the Class A-2 Note Default Differential, the Class B Note Default Differential, the Class C Note Default Differential, the Class D Note Default Differential, the
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Class E Note Default Differential, the Class F Note Default Differential, the Class G Note Default Differential, the Class H Note Default Differential, the Class J Note Default Differential and the Class K Note Default Differential of the Current Portfolio or the Proposed Portfolio, as applicable, is positive. The S&P CDO Monitor Test will be considered to be improved if the Class A Senior Note Default Differential of the Proposed Portfolio is greater than the Class A Senior Note Default Differential of the Current Portfolio, the Class A-2 Note Default Differential of the Proposed Portfolio is greater than the Class A-2 Note Default Differential of the Current Portfolio, the Class B Note Default Differential of the Proposed Portfolio is greater than the Class B Note Default Differential of the Current Portfolio, the Class C Note Default Differential of the Proposed Portfolio is greater than the Class C Note Default Differential of the Current Portfolio, the Class D Note Default Differential of the Proposed Portfolio is greater than the Class D Note Default Differential of the Current Portfolio, the Class E Note Default Differential of the Proposed Portfolio is greater than the Class E Note Default Differential of the Current Portfolio, the Class F Note Default Differential of the Proposed Portfolio is greater than the Class F Note Default Differential of the Current Portfolio, the Class G Note Default Differential of the Proposed Portfolio is greater than the Class G Note Default Differential of the Current Portfolio, the Class H Note Default Differential of the Proposed Portfolio is greater than the Class H Note Default Differential of the Current Portfolio, the Class J Note Default Differential of the Proposed Portfolio is greater than the Class J Note Default Differential of the Current Portfolio, and the Class K Note Default Differential of the Proposed Portfolio is greater than the Class K Note Default Differential of the Current Portfolio.
S&P Industry Classification Group means any of the S&P industrial classification groups as set forth on Schedule H and any additional classification groups established by S&P with respect to the Collateral Interests and provided, in each case, by the Collateral Manager or S&P to the Trustee.
S&P Letter means that certain letter dated as of March 17, 2006, from S&P to NorthStar Realty Finance Corp.
S&P Minimum Average Recovery Rate means, as of any date or determination, a rate expressed as a percentage equal to the number obtained by (i) summing the products obtained by multiplying the Principal Balance of each Collateral Interest by its S&P Recovery Rate and (ii) dividing such sum by the Collateral Interest Principal Balance less cash and Eligible Investments representing Collateral Principal Collections and (iii) rounding up to the first decimal place.
S&P Minimum Average Recovery Rate Test means a test that will be satisfied as of any Measurement Date if the S&P Minimum Average Recovery Rate is greater than or equal to (i) 35.48% with respect to the Class A Senior Notes, (ii) 35.48% with respect to the Class A-2 Notes, (iii) 35.48% with respect to the Class B Notes, (iv) 35.48% with respect to the Class C Notes, (v) 35.48% with respect to the Class D Notes, (vi) 36.57% with respect to the Class E Notes, (vii) 36.57% with respect to the Class F Notes, (viii) 36.57% with respect to the Class G Notes, (ix) 35.30% with respect to the Class H Notes, (x) 35.30% with respect to the Class J Notes and (xi) 35.66% with respect to the Class K Notes.
S&P’s Preferred Format means an electronic spreadsheet file to be provided to S&P, which file shall include the following information, if available (to the extent such information is not confidential) with respect to each Collateral Interest: (a) the name and country of domicile of the issuer thereof and the particular issue held by the Issuer, (b) the CUSIP or other applicable identification number associated with such Collateral Interest, (c) the par value of such Collateral Interest, (d) the type of issue (including, by way of example, whether such Collateral Interest is a bond, loan or asset-backed security), using such abbreviations as may be selected by the Trustee, (e) a description of the index or other applicable benchmark upon which the interest payable on such Collateral Interest is based (including, by way of example, fixed rate, step-up rate, zero coupon and LIBOR), (f) the coupon (in the case of a Collateral Interest which bears interest at a fixed rate) or the spread over the applicable index (in the case of a
51
Collateral Interest which bears interest at a floating rate), (g) the S&P Industry Classification Group for such Collateral Interest, (h) the Stated Maturity Date of such Collateral Interest, (i) the S&P Rating of such Collateral Interest or the issuer thereof, as applicable, (j) the priority category assigned by S&P to such Collateral Interest, if available and (k) such other information as the Trustee may determine to include in such file.
S&P Rating means a rating of any Collateral Interest determined as follows:
(a) if S&P has assigned a rating to such Collateral Interest either publicly or privately (in the case of a private rating, with the written consent of the issuer of such Collateral Interest for use of such private rating and delivery of a copy of such consent to S&P), the S&P Rating shall be the rating assigned thereto by S&P; provided that, solely for purposes of determining compliance with the S&P CDO Monitor Test, if such Collateral Interest is placed on a watch list for possible upgrade or downgrade by S&P, the S&P Rating applicable to such Collateral Interest shall be one rating subcategory above or below, respectively, the S&P Rating applicable to such Collateral Interest immediately prior to such Collateral Interest being placed on such watch list;
(b) if such Collateral Interest is not rated by S&P but the Issuer or the Collateral Manager on behalf of the Issuer has requested that S&P assign a rating to such Collateral Interest, the S&P Rating shall be the rating so assigned by S&P; provided that pending receipt from S&P of such rating, if such Collateral Interest is not eligible for notching in accordance with a Schedule G hereto, such Collateral Interest shall have a S&P Rating of “CCC-”, otherwise such S&P Rating shall be the rating assigned according to Schedule F hereto until such time as S&P shall have assigned a rating thereto; or
(c) if any Collateral Interest is a Collateral Interest that has not been assigned a rating by S&P and is not a Collateral Interest listed in Schedule G hereto, as identified by the Collateral Manager, refer to Schedule F hereto to determine the S&P Rating; provided that (i) if any Collateral Interest shall, at the time of its purchase by the Issuer, be listed for a possible upgrade or downgrade on either Moody’s or S&P’s then current credit rating watch list, then the S&P Rating of such Collateral Interest shall be one subcategory above or below, respectively, the rating then assigned to such item in accordance with Schedule F hereto; (ii) for purposes of determining compliance with S&P CDO Monitor Test, if the rating assigned to such Collateral Interest pursuant to this subparagraph (c) is placed on a watch list for possible upgrade or downgrade by any Rating Agency, the S&P Rating applicable to such Collateral Interest shall be one rating subcategory above or below, respectively, the S&P Rating applicable to such Collateral Interest immediately prior to such Collateral Interest being placed on such watch list and (iii) the aggregate Principal Balance that may be given a rating based on this subparagraph (iii) may not exceed 20% of the aggregate Principal Balance of all Collateral Interests; provided that if any Collateral Interest has not been assigned a rating by S&P and is a type of Collateral Interest not listed on Schedule G hereto, subsequent to the Closing Date, (A) the acquisition of any such Collateral Interest will require an estimate or shadow rating from S&P prior to the acquisition by the Issuer of such Collateral Interest or (B) the Collateral Administrator may use the tranched ratings determined in accordance with Schedule I for Collateral Interests represented by Commercial Mortgage Loans, Subordinate Mortgage Loan Interests, Preferred Equity Securities and Mezzanine Loans representing up to 20% of the Collateral Interests Principal Balance;
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notwithstanding the foregoing, if any Collateral Interest shall, at the time of its purchase by the Issuer, be listed for a possible upgrade or downgrade on the then current S&P credit rating watch list, then the S&P Rating of such Collateral Interest shall be one subcategory above or below, respectively, the rating then assigned to such item by S&P, as applicable; provided that if such Collateral Interest is removed from such list at any time, it shall be deemed to have its then-current actual rating by S&P.
S&P Recovery Rate means, with respect to a Collateral Interest on any Calculation Date, an amount equal to the percentage for such Collateral Interest set forth in the S&P Recovery Rate Matrix attached as a Schedule D (determined in accordance with procedures prescribed by S&P for such Collateral Interest on such Calculation Date or, in the case of Impaired Interests, the S&P Rating immediately prior to default).
S&P Special Amortization Pro Rata Condition means a condition that will be satisfied with respect to any Payment Date if either (i) (A) the aggregate Principal Balance of the Collateral Interests as of the related Calculation Date is greater than an amount equal to 50% of the aggregate Principal Balance of the Collateral Interests on the Effective Date and each of the Coverage Tests was satisfied as of the related Calculation Date and (B) (1) the Pro Rata Principal Coverage Test has been satisfied on the related and each prior Calculation Date, or (2) if the Pro Rata Principal Coverage Test has failed to be satisfied on any previous Calculation Date, subsequent to such failure, (x) the Pro Rata Principal Coverage Ratio as of the related Calculation Date equals or exceeds the Pro Rata Principal Coverage Ratio in existence on the Effective Date or (y) the Pro Rata Principal Coverage Test is satisfied as of the related Calculation Date without applying Collateral Principal Collections on any previous Payment Date or (ii) the Rating Confirmation has been provided by S&P.
Sale has the meaning specified in Section 5.17(a).
Sale Proceeds means all proceeds (including accrued interest) received with respect to Collateral Interests and Equity Interests as a result of sales of such Collateral Interests and Equity Interests pursuant to this Indenture, net of any reasonable amounts expended by the Collateral Manager or the Trustee in their good faith determination in connection with such sale or disposition.
Schedule of Collateral Interests means the list of Collateral Interests securing the Indenture Issued Notes that is attached as Schedule A.
Scheduled Distribution means, with respect to any Pledged Security, for each Due Date, the scheduled payment in Cash of principal and/or interest and/or fees due on such Due Date with respect to such Pledged Security, determined in accordance with the assumptions specified in Section 1.2.
Second Currency has the meaning specified in Section 14.13.
Secured Parties means the Trustee, for the benefit of the Rated Noteholders (other than the Class K Noteholders), each Hedge Counterparty and the Collateral Manager.
Securities Account has the meaning specified in Section 8-501(a) of the UCC.
Securities Act means the U.S. Securities Act of 1933, as amended.
Securities Intermediary has the meaning specified in Section 8-102(a)(14) of the UCC.
Security has the meaning specified in Section 8-102(a)(15) of the UCC.
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Seller or Sellers means individually or together, NRFC WA Holdings, LLC and NRFC WA Holdings II, LLC and their successors or assigns, in their capacity as sellers under the Asset Transfer Agreements or any other seller of Collateral Interests acquired by the Issuer or the Underlying Trustee after the Closing Date.
Semi-Annual Pay Security means a security that provides for periodic payments of interest in Cash semi-annually.
Semi-Annual Pay Security Interest Reserve Amount means, with respect to each Collateral Interest that is a Semi-Annual Pay Security, as of any Calculation Date, the amount equal to (i) the amount of interest paid by the obligor on the most recent payment date (or if no payment date has occurred, the estimated interest payment due on the first payment date) with respect to such Semi-Annual Pay Security multiplied by (ii) (A) the number of months until the next payment date with respect to such Semi-Annual Pay Security minus one (rounded up to the nearest whole number) divided by (B) two; provided that for any Semi-Annual Pay Security with respect to which no scheduled interest payments remain, the Semi-Annual Pay Security Interest Reserve Amount shall be zero.
Senior Collateral Management Fee means with respect to each Payment Date, a senior fee equal to the sum of (a) the Monitoring Fee and (b) the Senior Structuring Fee payable to the Collateral Manager pursuant to the Collateral Management Agreement; provided that the Senior Collateral Management Fee will be payable on each Payment Date only to the extent of funds available for such purpose in accordance with the Priority of Payments. Any unpaid Senior Collateral Management Fee will be deferred and paid on the next succeeding Payment Date to the extent funds are available for such purpose. Any unpaid Senior Collateral Management Fee that is deferred due to the operation of the Priority of Payments will not accrue interest. Any Senior Collateral Management Fee accrued but not paid prior to the resignation or removal of the Collateral Manager shall continue to be payable to the Collateral Manager on the Payment Date immediately following the effectiveness of such resignation or removal.
Senior Interests means the interests in a Commercial Mortgage Loan which rank senior in priority to the Subordinate Mortgage Loan Interests in the same Commercial Mortgage Loan.
Senior Loans means the debt in a Commercial Mortgage Loan which rank senior in priority to the Subordinate Mortgage Loan Interests in the same Commercial Mortgage Loan.
Senior Notes means, with respect any Class of Notes (other than the Class A Senior Notes), the Class or Classes of Notes with a prior alphabetical designation.
Senior Structuring Fee means, with respect to each Payment Date, an amount equal to 0.04875% per annum of the Fee Basis Amount payable to the Collateral Manager pursuant to the Collateral Management Agreement.
Servicers means, Wachovia Bank and/or one or more additional servicers, each servicing as a servicer pursuant to the Servicing Agreement.
Servicing Agreement means a certain Servicing Agreement, dated as of March 17, 2006, as the same may be amended or supplemented from time to time, among the Issuer, and the Servicers, each as a servicer.
Specified Currency has the meaning specified in Section 14.13.
Specified Person has the meaning specified in Section 2.5(a).
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Specified Place has the meaning specified in Section 14.13.
Specified Types means any Trust Certificate, CMBS, Real Estate CDO Security, REIT Debt Security or Collateral Interest related to (x) developed or undeveloped commercial real estate or (y) undeveloped real estate intended to be developed into residential property; provided that no loan shall be secured by an individual residential property.
Stated Maturity Date means the Payment Date occurring in June 2041.
Subordinate Collateral Management Fee means the fee payable to the Collateral Manager at a per annum rate in arrears on each Payment Date pursuant to the Collateral Management Agreement, in an amount (as certified by the Collateral Manager to the Trustee) equal to 0.25% of the Fee Basis Amount for such Payment Date; provided that the Subordinate Collateral Management Fee will be payable on each Payment Date only to the extent of funds available for such purpose in accordance with the Priority of Payments. Any unpaid Subordinate Collateral Management Fee will be deferred and paid on the next succeeding Payment Date to the extent funds are available for such purpose. Any unpaid Subordinate Collateral Management Fee that is deferred due to the operation of the Priority of Payments will not accrue interest. Any Subordinate Collateral Management Fee accrued but not paid prior to the resignation or removal of the Collateral Manager shall continue to be payable to the Collateral Manager on the Payment Date immediately following the effectiveness of such resignation or removal.
Subordinate Mortgage Loan Interests means subordinate interests in commercial mortgage loans (including subordinate participation interests in commercial mortgage loans) and subordinate commercial mortgage loans.
Subpool means each of the groups of the Collateral Interests designated by the Collateral Manager in accordance with the Auction Procedures on which the Listed Bidders may provide a separate bid in an Auction.
Substitute Collateral Interest means a debt obligation meeting the Eligibility Criteria acquired by or on behalf of the Issuer with Collateral Principal Proceeds, Sale Proceeds or Class A-R Draws that are reinvested in accordance with the provisions of this Indenture.
Synthetic Security means any swap transaction, debt security, security issued by a trust or similar vehicle or other investment, the returns on which (as determined by the Collateral Manager) are linked to the credit performance of a reference obligation, but which may provide for a different maturity, payment date, interest rate, credit exposure or other credit or non-credit related characteristics from such reference obligation.
Taxes means any present or future taxes, duties, assessments or governmental charges of whatsoever nature imposed, levied, collected, withheld or assessed by any governmental authority having power to tax.
Tax Event means an event that will occur if (x)(1)(i) any obligor or withholding agent is, or on the next scheduled payment date under any Collateral Interest, will be, required to deduct or withhold from any payment under any Collateral Interest to the Issuer (other than any commitment fee with respect to the unfunded portion of any Earn-Out Assets) for or on account of any tax for whatever reason and such obligor or withholding agent is not required to pay to the Issuer such additional amount as is necessary to ensure that the net amount actually received by the Issuer (free and clear of taxes, whether assessed against such obligor or the Issuer) will equal the full amount that the Issuer would have received had no such deduction or withholding been required, (ii) any jurisdiction imposes net income, profits, or similar
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tax on the Issuer, (iii) the Issuer is required to deduct or withhold from any payment under any Hedge Agreement for or on account of any tax and the Issuer is obligated to make a gross up payment (or otherwise pay additional amounts) to any Hedge Counterparty or (iv) any Hedge Counterparty is required to deduct or withhold from any payment under any Hedge Agreement for or on account of any tax for whatever reason and such Hedge Counterparty is not required to pay to the Issuer such additional amount as is necessary to ensure that the net amount actually received by the Issuer (free and clear of taxes, whether assessed against such obligor or the Issuer) will equal the full amount that the Issuer would have received had no such deduction or withholding been required and (2) the sum of the amount of (i) such a tax or taxes imposed on the Issuer or withheld from payments to the Issuer to the extent the Issuer receives less than the full amount that the Issuer would have received had no such deduction occurred and (ii) such gross up payments required to be made by the Issuer to the extent they exceed the amounts that the Issuer would have been required to pay had no deduction or withholding been required, in the aggregate, equals ten percent (10%) or more of the amount of aggregate interest payments on all of the related Collateral Interests during the related Due Period or (y) the Issuer fails to maintain its status as a Qualified REIT Subsidiary.
Tax Redemption has the meaning specified in Section 9.1(b).
Tax Subsidiary has the meaning specified in Section 7.7(e).
Taxed Collateral Interest means any Collateral Interest (including, without limitation, a Preferred Equity Security) the ownership of which could result in the Issuer being or becoming subject to U.S. tax on a net income basis or being or becoming subject to the U.S. branch profits tax
Taxed Property means any property other than a Collateral Interest but including, without limitation, property acquired or to be acquired in respect of a Collateral Interest, the ownership of which could result in the Issuer being or becoming subject to U.S. tax on a net income basis or being or becoming subject to the U.S. branch profits tax.
Tenant Lease Loan Interests means commercial mortgage-backed securities that entitle the holders thereof to receive payments that depend on the cash flow from a pool of commercial mortgage loans made to finance the acquisition, construction and improvement of properties primarily leased to tenants engaged in a business (or on the cash flow from such leases), the underwriting of which is dependent primarily on the creditworthiness of the related tenants; provided that such dependence may in addition be conditioned upon rights or additional assets designed to assure the servicing or timely distribution of proceeds to holders of the commercial mortgage-backed securities such as a financial guaranty insurance policy.
Total Net Unfunded Future Advance Amount means, as of any date, the excess, if any, of (i) the then outstanding Total Unfunded Future Advance Amount over (ii) the amount then on deposit in the Earn-Out Asset Account.
Total Unfunded Future Advance Amount means for all Earn-Out Assets, the aggregate amount of the Unfunded Future Advance Amounts.
Transaction Documents means this Indenture, the Collateral Management Agreement, the Account Control Agreement, the Corporate Services Agreement, the Collateral Administration Agreement, any Hedge Agreement, the Paying Agency Agreement and the Purchase and Placement Agreement.
Trust Certificate means one or more trust certificates each of which represents an ownership interest in the Underlying Trust created pursuant to the Master Trust Agreement, which are secured by Subordinate
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Mortgage Loan Interests, Mezzanine Loans, Participation Interests, Commercial Mortgage Loans, Credit Lease Loans, Preferred Equity Securities and/or Tenant Lease Loan Interests.
Trust Officer means, when used with respect to the Trustee, any Officer within the Corporate Trust Office working on the transaction described in this Indenture and (or any successor group of the Trustee) authorized to act for and on behalf of the Trustee, including any vice president, assistant vice president or other Officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such Officers, respectively, or to whom any corporate trust matter is referred at the Corporate Trust Office because of such person’s knowledge of and familiarity with the particular subject.
Trustee means Xxxxx Fargo Bank, National Association, and any successors or assigns, in its capacity as trustee under this Indenture.
Trustee Expenses means, with respect to any Payment Date, an amount equal to the sum of all expenses or indemnities incurred by or otherwise owing to the Trustee during the preceding Due Period in accordance with this Indenture, other than the Trustee Fee, including, without limitation, any expenses or indemnities incurred by the Trustee (and the Bank) in any of its capacities (including in its capacity as Collateral Administrator, Calculation Agent, Note Paying Agent, Class A-R Note Agent, PAA Issued Note Paying Agent and Registrar).
Trustee Fee means, with respect to any Payment Date, the fee payable to the Trustee in an aggregate amount equal to 0.0178% per annum of the Collateral Interest Principal Balance as of the first day of the related Due Period; provided that in no event shall, so long as any Class of Rated Notes remains Outstanding, such fee be an annual amount less than U.S.$25,000.
Trustee Interest Advance Fee means, a per annum fee payable to the Trustee in accordance with the Priority of Payments on each Payment Date equal to 0.00125% of the outstanding principal amount of the Class A Notes (assuming for the purposes of this calculation that the Class A-R Notes are fully drawn) and Class B Notes immediately prior to such Payment Date.
UCC means the Uniform Commercial Code as in effect in the State of New York.
Underlying Instrument means the agreement pursuant to which a Pledged Security has been issued or created and each other agreement that governs the terms of or secures the obligations represented by such Pledged Security or of which the holders of such Pledged Security are the beneficiaries.
Underlying Trust means the newly formed trust established pursuant to the Master Trust Agreement.
Underlying Trust Expenses means, all reasonable expenses, disbursements and advances incurred or made by the Underlying Trustee in accordance with any provision of the Master Trust Agreement or in the administration or the enforcement of any provision thereof (including the reasonable compensation, expenses and disbursements of its agents and counsel) including, without limitation, any amounts in respect of indemnification owed to the Underlying Trustee pursuant to Section 6.04 of the Master Trust Agreement, but excluding any overhead or employee expenses of the Underlying Trustee.
Underlying Trustee means Xxxxx Fargo Bank, National Association, in its capacity as underlying trustee pursuant to the Master Trust Agreement, and any successor or successors thereto.
Undeveloped Real Estate Collateral Interest means a Collateral Interest related to undeveloped real estate intended to be developed into residential or commercial property.
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Unfunded Future Advance Amount means, with respect to any Earn-Out Asset and any Calculation Date, any Future Advance Amount not yet funded (by the Issuer or any other entity) pursuant to the terms of the Earn-Out Asset.
Uninvested Proceeds means, at any time, the net proceeds received by the Issuer on the Closing Date from the initial issuance of the Rated Notes and Income Notes, to the extent such proceeds have not theretofore been invested in Collateral Interests.
Uninvested Proceeds Account has the meaning specified in Section 10.4.
United States or U.S. means the United States of America, including the States thereof and the District of Columbia.
Unregistered Securities has the meaning specified in Section 5.17(c).
U.S. Person has the meaning given in Regulation S under the Securities Act.
USA PATRIOT Act means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56 (2001).
Wachovia Bank means Wachovia Bank, National Association and/or its affiliates.
Weighted Average Fixed Rate Coupon means, as of any Measurement Date, the sum (rounded up to the next 0.001%) obtained by (i) multiplying the Principal Balance of each Fixed Rate Collateral Interest (except Collateral Interests that are currently deferring interest) held in the portfolio as of such date by the then-current interest rate, (ii) summing the amounts determined pursuant to clause (i) for all Fixed Rate Collateral Interests held in the portfolio as of such date and (iii) dividing such sum by the aggregate Principal Balance of all Fixed Rate Collateral Interests held in the portfolio as of such date; provided that for purposes of calculating the Weighted Average Fixed Rate Coupon of Collateral Interests that are Impaired Interests, the Written Down Amount with respect to Written Down Interests and Equity Interests will be excluded, except for those Impaired Interests that at the time of such calculation have fully become current on all past due interest and scheduled principal and are paying full current interest in cash pursuant to the terms of their respective Underlying Instrument.
Weighted Average Life means, on any Calculation Date with respect to all Collateral Interests (excluding any Impaired Interests), the number obtained by the Collateral Manager by (i) summing the products obtained by multiplying (a) the Average Life at such time of each Collateral Interest by (b) the outstanding Principal Balance of such Collateral Interest and (ii) dividing such sum by the aggregate Principal Balance at such time of all Collateral Interests.
Weighted Average Life Test means a test that shall be satisfied as of any Measurement Date during any period set forth below if the Weighted Average Life of all Collateral Interests as of such Measurement Date is less than or equal to 7 years.
Weighted Average Spread means, as of any Measurement Date, the sum (rounded up to the next 0.001%) of the number obtained by (i) summing the products obtained by multiplying (A) for each Floating Rate Collateral Interest (other than any Impaired Interest, Written Down Amount with respect to a Written Down Interest or Deferred Interest XXX Xxxx), the stated spread above LIBOR at which interest accrues on such Collateral Interest as of such date and, for each Deemed Floating Rate Collateral Interest (other than any Impaired Interest, Written Down Amount with respect to a Written Down Interest or Deferred Interest XXX Xxxx), the Deemed Floating Spread by (B) the Principal Balance of such Collateral Interest
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as of such date and (ii) dividing such sum by the aggregate Principal Balance of all Floating Rate Collateral Interests and all Deemed Floating Rate Collateral Interests (excluding, in each case, all Impaired Interests, Written Down Amounts with respect to Written Down Interests and Deferred Interest PIK Bonds, except for those Impaired Interests that at the time of such calculation have fully become current on all past due interest and scheduled principal and are paying full current interest in cash pursuant to the terms of their respective Underlying Instrument); provided, that for purposes of calculating the Weighted Average Spread, each Earn-Out Asset will be deemed to be two separate Floating Rate Collateral Interests: (I) one with an outstanding principal balance equal to the funded portion thereof and a stated interest rate spread equal to the funded spread on such Earn-Out Asset and (II) the other with an outstanding principal balance equal to the unfunded portion thereof and an assumed stated interest rate spread equal to the commitment fee of such Earn-Out Asset, less any withholding tax on such commitment fee.
Withholding Tax Interest means a Collateral Interest if:
(i) any payments thereon to the Issuer (other than any commitment fee with respect to the unfunded portion of any Earn-Out Assets) are subject to withholding tax imposed by any jurisdiction (other than U.S. backup withholding tax or other similar withholding tax); and
(ii) under the underlying documentation with respect to such Collateral Interest, the issuer of or counterparty with respect to such Collateral Interest is not required to make “gross-up” payments to the Issuer that cover the full amount of such withholding tax on an after-tax basis.
Written Down Amount means, with respect to each Written Down Interest, the amount by which the original Principal Balance of such Written Down Interest is reduced as notified by or on behalf of the related issuer or trustee to the holders of such Written Down Interest (including appraisal reductions on CMBS).
Written Down Interest means any Collateral Interest as to which the aggregate par amount of such Collateral Interest and all other securities secured by the same pool of collateral that rank pari passu with or senior in priority of payment to such Collateral Interest exceeds the aggregate par amount (including reserved interest or other amounts available for overcollateralization) of all collateral securing such securities (excluding defaulted collateral); provided that the Issuer shall immediately send notice to S&P and Fitch by facsimile and electronic mail upon any Collateral Interest becoming a Written Down Interest.
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1.2. ASSUMPTIONS AS TO COLLATERAL INTERESTS, FEES, ETC.
The provisions set forth in this Section 1.2 shall be applied in connection with all calculations required to be made pursuant to this Indenture with respect to Scheduled Distributions on any Pledged Security, or any payments on any other assets included in the Collateral, and with respect to the income that can be earned on Scheduled Distributions on such Pledged Securities and on any other amounts that may be received for deposit in the Collection Account.
(a) All calculations with respect to Scheduled Distributions on the Pledged Securities securing the Indenture Issued Notes shall be made by the Issuer or the Collateral Administrator on behalf of the Issuer using (in the case of the Collateral Interests) the assumptions that (i) no Pledged Security defaults or is sold, (ii) prepayment of any Pledged Security during any month occurs at a rate equal to the average rate of prepayment during the period of six consecutive months immediately preceding the current month (or, with respect to any Pledged Security that has not been outstanding for at least six consecutive calendar months, at the rate of prepayment assumed at the time of issuance of such Pledged Security), (iii) any clean-up call with respect to a Pledged Security will be exercised when economic to the Person or Persons entitled to exercise such call and (iv) no other optional redemption of any Pledged Security will occur except for those that have actually occurred or as to which irrevocable notice thereof shall have been given.
(b) For purposes of determining compliance with the Interest Coverage Tests, except as otherwise specified in the Interest Coverage Tests, there shall be excluded all payments in respect of Impaired Interests and Deferred Interest PIK Bonds unless the Trustee or Collateral Manager has actual knowledge such payments will be made in Cash and will be received on or before the Due Date therefor and all other scheduled payments (whether of principal, interest, fees or other amounts) including payments to the Issuer under any Hedge Agreement, as to which the Trustee or Collateral Manager has actual knowledge will not be made in Cash or will not be received when due. For purposes of calculating the applicable Interest Coverage Ratio:
(1) the expected interest income on Collateral Interests and Eligible Investments and the expected interest payable on the Rated Notes and amounts, if any, payable under a Hedge Agreement will be calculated using the interest rates applicable thereto on the applicable date of determination;
(2) accrued original issue discount on Eligible Investments will be deemed to be a scheduled interest payment thereon due on the date such original issue discount is scheduled to be paid; and
(3) it will be assumed that no principal payments are made on the Rated Notes during the applicable periods.
(c) For each Due Period, the Scheduled Distribution on any Pledged Security (other than (i) an Impaired Interest, (ii) a Deferred Interest XXX Xxxx or (iii) an Equity Interest, which, in each case except as otherwise provided herein, shall be assumed to have a Scheduled Distribution of zero and with respect to any Written Down Interest, the Interest Coverage Amount shall exclude any interest accrued on any Written Down Amount) shall be the sum of (x) the total amount of payments and collections in respect of such Pledged Security (including the proceeds of the sale of such Pledged Security received during the
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Due Period) that, if paid as scheduled, will be available in the Collection Account at the end of the Due Period for payment on the Rated Notes or other amounts payable pursuant to this Indenture and of certain expenses of the Issuer and the Co-Issuer plus (y) any such amounts received in prior Due Periods that were not disbursed on a previous Payment Date (provided that such sum shall be computed without regard to any amounts excluded from the determination of compliance with the Coverage Tests pursuant to Section 1.2(b)).
(d) Subject to Section 1.2(b), each Scheduled Distribution receivable with respect to a Pledged Security shall be assumed to be received on the applicable Due Date, and each such Scheduled Distribution shall be assumed to be immediately deposited in the Collection Account and, except as otherwise specified, to earn interest at the Assumed Reinvestment Rate. All such funds shall be assumed to continue to earn interest until the date on which they are required to be available in the Collection Account for transfer to the Payment Account and application, in accordance with the terms hereof, to payments of principal of or interest on the Rated Notes or other amounts payable pursuant to this Indenture.
(e) With respect to any Collateral Interest as to which any interest or other payment thereon is subject to withholding tax of any Relevant Jurisdiction, each Distribution thereon shall, for purposes of the Coverage Tests and each Collateral Quality Test, be deemed to be payable net of such withholding tax unless the issuer thereof or obligor thereon is required to make additional payments sufficient on an after tax basis to cover any withholding tax imposed on payments to the Issuer with respect thereto (including in respect of any such additional payment). On any date of determination, the amount of any Scheduled Distribution due on any future date shall be assumed to be made net of any such uncompensated withholding tax based upon withholding tax rates in effect on such date of determination.
(f) For purpose of determining compliance with the Interest Coverage Tests, it will be assumed that any amount required to be paid for taxes, filing and registration fees on the Payment Date immediately following the relevant Due Period shall be equal to the aggregate amount for which the Trustee has received an invoice or demand for payment on or prior to the relevant Measurement Date.
(g) Any reference in the definition of “Trustee Fee,” “Senior Collateral Management Fee” or “Subordinate Collateral Management Fee” in Section 1.1(a) to an amount calculated with respect to a period at a per annum rate shall be computed on the basis of a 360 day year of four 90-day periods.
(h) Unless otherwise specified, test calculations that evaluate to a percentage will be rounded to the nearest one-hundredth, and test calculations that evaluate to a number or decimal will be rounded to the nearest one hundredth.
(i) Unless otherwise specified, all calculations required to be made and all reports which are to be prepared pursuant to this Indenture with respect to the Collateral Interests, shall be made on the basis of the date on which the Issuer makes a commitment to acquire or to sell an asset, as applicable (the trade date), not the settlement date for such sale.
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(j) For the purpose of determining fees constituting Administrative Expenses payable under the Priority of Payments hereunder, periods longer or shorter than a 90 day period shall be prorated based on the number of days in such period.
(k) With respect to any Collateral Interest that is a Preferred Equity Security, (i) payments of interest shall mean payments of dividends or other distributions not attributable to the return of capital by the related Underlying Instruments and (ii) payments of principal shall mean distributions attributable to the return of capital by the Underlying Instruments.
1.3. RULES OF CONSTRUCTION
Unless the context otherwise clearly requires:
(a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined;
(b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms;
(c) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;
(d) the word “will” shall be construed to have the same meaning and effect as the word “shall”;
(e) any definition of or reference to any agreement, statute, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein);
(f) any reference herein to any Person, or to any Person in a specified capacity, shall be construed to include such Person’s successors and assigns or such Person’s successors in such capacity, as the case may be; and
(g) all references in this instrument to designated “Sections,” “clauses” and other subdivisions are to the designated Sections, clauses and other subdivisions of this instrument as originally executed, and the words “herein,” “hereof,” hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Section, clause or other subdivision.
ARTICLE II
THE INDENTURE ISSUED NOTES
2.1. FORMS GENERALLY
(a) The Class A Notes (other than the Class A-R Notes), Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes offered and sold in reliance on Regulation S (each, a Regulation S Note) shall be issued in fully Registered form without interest coupons substantially in the form of the note attached as Exhibit A-1 (each, a
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Regulation S Global Note) with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and such legends as may be applicable thereto, which shall be deposited with the Trustee at its Corporate Trust Office in Minneapolis, Minnesota, as custodian for DTC and registered in the name of DTC or a nominee of DTC, duly executed by the Co-Issuers and authenticated by the Trustee or the Authenticating Agent as hereinafter provided. The Aggregate Outstanding Amount of each Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as the case may be.
(b) The Class A Notes (other than the Class A-R Notes), Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes and sold in the United States pursuant to an exemption from the registration requirements of the Securities Act (Rule 144A Notes) shall be issued in fully Registered form without interest coupons substantially in the form of the note attached as Exhibit A-2 (each, a Rule 144A Global Note), with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and such legends as may be applicable thereto, which shall be deposited with the Trustee at its Corporate Trust Office, as custodian for DTC and registered in the name of DTC or a nominee of DTC, duly executed by the Co-Issuers and authenticated by the Trustee or the Authenticating Agent as hereinafter provided. The Aggregate Outstanding Amount of each Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as the case may be.
(c) Regulation S Global Notes and Rule 144A Global Notes may also be exchanged under the limited circumstances set forth in Section 2.4 for notes in definitive fully Registered form without interest coupons (each, a Certificated Class A-G Note), which may be either a Regulation S Certificated Class A-G Note or a Rule 144A Certificated Class A-G Note, with such legends as may be applicable thereto, which shall be duly executed by the Issuer and the Co-Issuer and authenticated by the Trustee or the Authenticating Agent as hereinafter provided.
(d) The Class A-R Notes, the Class H Notes and the Class J Notes offered or sold in the United States or to U.S. Persons pursuant to Rule 144A or another applicable exemption from registration under the Securities Act shall be issued in the form of physical certificates in definitive fully Registered form without interest coupons substantially in the form of the certificated note attached as Exhibit B (each, a Certificated Class A-R Note, or a Certificated Class H Note, or a Certificated Class J Note, and together, the Certificated Notes) with such legends as may be applicable thereto, which shall be duly executed by the Issuer and authenticated by the Trustee or the Authenticating Agent as hereinafter provided.
(e) The Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) in issuing the Indenture Issued Notes may use “CUSIP” or “private placement” numbers (if then generally in use), and, if so, the Trustee will indicate the “CUSIP” or “private placement” numbers of the Indenture Issued Notes in notices of redemption and related materials as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Indenture Issued Notes or as contained in any notice of redemption and related materials.
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2.2. AUTHORIZED AMOUNT; APPLICABLE PERIODIC INTEREST RATE; STATED MATURITY DATE; DENOMINATIONS
(a) The aggregate principal amount of Indenture Issued Notes which may be issued under this Indenture may not exceed U.S.$450,000,000, excluding Indenture Issued Notes issued upon registration of, transfer of, or in exchange for, or in lieu of, other Indenture Issued Notes pursuant to Section 2.4, 2.5 or 8.5.
(b) The Rated Notes shall be divided into twelve Classes having designations, original principal amounts, original Applicable Periodic Interest Rates and Stated Maturity Dates as follows:
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Indenture Issued |
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Original Principal |
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Applicable Periodic |
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Note Stated |
Designation |
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Amount |
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Interest Rate |
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Maturity Date |
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|
|
|
|
|
Class A-1 Notes |
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U.S.$174,800,000 |
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LIBOR + 0.330% |
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June 2041 |
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|
|
|
|
|
|
Class A-R Notes |
|
U.S.$70,000,000 |
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LIBOR + 0.340% |
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June 2041 |
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|
|
|
|
|
|
Class A-2 Notes |
|
U.S.$27,225,000 |
|
LIBOR + 0.380% |
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June 2041 |
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|
|
|
|
|
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Class B Notes |
|
U.S.$21,825,000 |
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LIBOR + 0.440% |
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June 2041 |
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|
|
|
|
|
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Class C Notes |
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U.S.$12,825,000 |
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LIBOR + 0.740% |
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June 2041 |
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|
|
|
|
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Class D Notes |
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U.S.$13,950,000 |
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LIBOR + 0.940% |
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June 2041 |
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Class E Notes |
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U.S.$10,125,000 |
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LIBOR + 1.650% |
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June 2041 |
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|
|
|
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Class F Notes |
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U.S.$7,650,000 |
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LIBOR + 1.850% |
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June 2041 |
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Class G Notes |
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U.S.$9,900,000 |
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LIBOR + 3.000% |
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June 2041 |
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|
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Class H Notes |
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U.S.$6,075,000 |
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LIBOR + 4.250% |
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June 2041 |
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|
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Class J Notes |
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U.S.$18,000,000 |
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LIBOR + 5.500% |
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June 2041 |
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|
|
|
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Class K Notes |
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U.S.$13,950,000 |
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LIBOR + 8.000% |
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June 2041 |
The Indenture Issued Notes will be issuable in minimum denominations of U.S.$500,000 and, in each case, only in integral multiples of U.S.$1,000 in excess of such minimum denominations. After issuance, (x) an Indenture Issued Note may fail to be in compliance with the minimum denomination requirement as a result of the repayment of principal thereon in accordance with the Priority of Payments and (y) the Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes or Class K Notes may fail to be in an amount which is an integral multiple of U.S.$1,000 due to the addition to the principal amount thereof of deferred interest.
(c) Interest shall accrue on the Aggregate Outstanding Amount of each Class of Indenture Issued Notes (determined as of the first day of each Interest Period and after giving effect to any payment of principal occurring on such day) from the Closing Date (or in the case of the Class A-R Notes, from the relevant funding date) and will be payable in arrears on each Payment Date. In addition, interest with respect to any Class A-R Notes may also be paid on any Interim Payment Date in connection with a Class A-R Prepayment.
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Interest on each Class of Indenture Issued Notes and interest on Defaulted Interest will be calculated in accordance with the definition of Periodic Interest.
(d) The Indenture Issued Notes shall be redeemable as provided in Section 9.
(e) The Depositary for the Global Notes shall initially be DTC.
(f) The Indenture Issued Notes shall be numbered, lettered or otherwise distinguished in such manner as may be consistent herewith, determined by the Authorized Officers of the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) executing such Indenture Issued Notes as evidenced by their execution of such Indenture Issued Notes.
2.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING
(a) The Indenture Issued Notes (other than the Class H Notes and the Class J Notes) shall be executed on behalf of the Co-Issuers by an Authorized Officer of each of the Co-Issuers. The Class H Notes and the Class J Notes shall be executed on behalf of the Issuer by an Authorized Officer of the Issuer. The signatures of such Authorized Officers on the Indenture Issued Notes may be manual or facsimile (including in counterparts).
(b) Indenture Issued Notes bearing the manual or facsimile signatures of individuals who were at any time the Authorized Officers of either of the Co-Issuers shall bind such Person, notwithstanding the fact that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Indenture Issued Notes or did not hold such offices at the date of issuance of such Indenture Issued Notes.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Co-Issuers may deliver Indenture Issued Notes (other than the Class H Notes and the Class J Notes) executed by the Co-Issuers and the Issuer may deliver the Class H Notes and the Class J Notes executed by the Issuer, to the Trustee or the Authenticating Agent for authentication, and the Trustee or the Authenticating Agent, upon Issuer Order, shall authenticate and deliver such Indenture Issued Notes as provided in this Indenture and not otherwise.
(d) Each Indenture Issued Note authenticated and delivered by the Trustee or the Authenticating Agent to or upon Issuer Order on the Closing Date shall be dated as of the Closing Date. All other Indenture Issued Notes that are authenticated after the Closing Date for any other purpose under this Indenture shall be dated the date of their authentication.
(e) Indenture Issued Notes issued upon transfer, exchange or replacement of other Indenture Issued Notes shall be issued in authorized denominations reflecting the original aggregate principal amount of the Indenture Issued Notes so transferred, exchanged or replaced, but shall represent only the current Aggregate Outstanding Amount of the Indenture Issued Notes so transferred, exchanged or replaced. In the event that any Indenture Issued Note is divided into more than one Indenture Issued Note in accordance with this Section 2, the original principal amount of such Indenture Issued Note shall be proportionately divided among the Indenture Issued Notes delivered in exchange therefor and shall be deemed to
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be the original aggregate principal amount of such subsequently issued Indenture Issued Notes.
(f) No Indenture Issued Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Indenture Issued Note a certificate of authentication (the Certificate of Authentication), substantially in the form provided for herein, executed by the Trustee or by the Authenticating Agent by the manual signature of one of their Authorized Officers, and such certificate upon any Indenture Issued Note shall be conclusive evidence, and the only evidence, that such Indenture Issued Note has been duly authenticated and delivered hereunder.
2.4. REGISTRATION, TRANSFER AND EXCHANGE OF INDENTURE ISSUED NOTES
(a) Registration of Indenture Issued Notes. The Trustee is hereby appointed as the registrar hereunder (the Note Registrar). The Trustee is hereby appointed as a transfer agent with respect to the Indenture Issued Notes, other than the Class A-R Note, (the Note Transfer Agent), and with respect to the Class A-R Notes, the Class A-R Note Agent (the Class A-R Note Agent). The Note Registrar shall (acting solely for this purpose as agent for the Issuer) keep a register (the Note Register) at the Corporate Trust Office in which, subject to such reasonable regulations as it may prescribe, the Note Registrar shall provide for the registration of Indenture Issued Notes and the registration of transfers of Indenture Issued Notes. Upon any resignation or removal of the Note Registrar, the Issuer (after consultation with the Collateral Manager) shall propose a replacement for approval by the Holders of a Majority of the then Aggregate Outstanding Amount of the Notes. The Co-Issuers may not terminate the appointment of the Note Registrar or any Note Transfer Agent without the consent of each Holder of Indenture Issued Notes.
Subject to this Section 2.4, upon surrender for registration of transfer of any Indenture Issued Notes (other than the Class H Notes and the Class J Notes) at the office or agency of the Co-Issuers (or in the case of the Class H Notes and the Class J Notes, the Issuer) to be maintained as provided in Section 7.2, the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Indenture Issued Notes of any authorized denomination and of a like aggregate principal amount.
At the option of the Holder, Indenture Issued Notes may be exchanged for Indenture Issued Notes of like terms, in any authorized denominations and of like aggregate principal amount, upon surrender of the Indenture Issued Notes to be exchanged at such office or agency. Whenever any Indenture Issued Note is surrendered for exchange, the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) shall execute and the Trustee shall authenticate and deliver the Indenture Issued Notes that the Indenture Issued Noteholder making the exchange is entitled to receive.
All Indenture Issued Notes issued and authenticated upon any registration of transfer or exchange of Indenture Issued Notes shall be the valid obligations of the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes), evidencing the same
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debt, and entitled to the same benefits under this Indenture, as the Indenture Issued Notes surrendered upon such registration of transfer or exchange.
Every Indenture Issued Note presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) and the Note Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of transfer or exchange of Indenture Issued Notes, but the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith and delivery charges, if any, not made by regular mail.
(b) Transfers of Class A Notes (other than the Class A-R Notes), Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes
(1) Subject to Section 2.4(b)(4), exchanges or transfers of beneficial interests in a Global Note may be made only in accordance with the rules and regulations of the Depositary and the transfer restrictions contained in the legend on such Global Note and exchanges or transfers of interests in a Global Note may be made only in accordance with the following:
(i) Subject to Section 2.4(b)(1)(ii) through (vi), transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(ii) The Trustee shall cause the exchange or transfer of any beneficial interest in a Regulation S Global Note for a beneficial interest in a Rule 144A Global Note upon provision to the Trustee and the Co-Issuers of a written certification in the form of Exhibit C-1 (a Rule 144A Transfer Certificate).
(iii) The Trustee shall cause the exchange or transfer of any beneficial interest in a Rule 144A Global Note for a beneficial interest in a Regulation S Global Note upon provision to the Trustee and the Co-Issuers of a written certification substantially in the form of Exhibit C-2 (a Regulation S Transfer Certificate).
(iv) An owner of a beneficial interest in a Regulation S Global Note may transfer such interest in the form of a beneficial interest in such Regulation S Global Note without the provision of written certification; provided that (1) such transfer is made to a Person who is not a U.S. Person in an offshore transaction in reliance on an exemption from the registration requirements of the Securities Act under Regulation S and (2) the transferee, by purchase of such interest in such Regulation S Global Note, will be deemed to have made all representations, warranties and acknowledgements set forth in the Regulation S Transfer Certificate.
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(v) An owner of a beneficial interest in a Rule 144A Global Note may transfer such interest in the form of a beneficial interest in such Rule 144A Global Note without the provision of written certification; provided that the transferee, by purchase of such interest in such Rule 144A Global Note, will be deemed to have made all representations, warranties and acknowledgements set forth in the Rule 144A Transfer Certificate.
(vi) In the event Certificated Class A-G Notes are issued pursuant to Section 2.4(b)(5), the Trustee shall cause the transfer of (i) any beneficial interest in a Global Note for a Certificated A-G Note that is a Regulation S Note (a Regulation S Certificated Note), upon provision to the Trustee and the Issuer of a Regulation S Transfer Certificate or (ii) any beneficial interest in a Global Note for a Certificated A-G Note that is a Rule 144A Note (a Rule 144A Certificated Note), upon provision to the Trustee, the Co-Issuers and the Note Registrar of a Rule 144A Transfer Certificate.
(2) Subject to Section 2.4(b)(4), in the event Certificated Class A-G Notes are issued pursuant to Section 2.4(b)(5), the Trustee shall cause the transfer of (i) any Certificated A-G Note for a beneficial interest in a Regulation S Global Note, upon provision to the Trustee and the Issuer of a Regulation S Transfer Certificate or (ii) any Certificated A-G Note for a beneficial interest in a Rule 144A Global Note, upon provision to the Trustee and the Co-Issuers of a Rule 144A Transfer Certificate.
(3) Upon acceptance for exchange or transfer of a beneficial interest in a Global Note for a Certificated A-G Note, or upon acceptance for exchange or transfer of a Certificated A-G Note for a beneficial interest in a Global Note, each as provided herein, the Trustee shall approve the instruction at the Depositary to adjust the principal amount of such Global Note on its records to evidence the date of such exchange or transfer and the change in the principal amount of such Global Note.
(4) Subject to the restrictions on transfer and exchange set forth in this Section 2.4 and to any additional restrictions on transfer or exchange specified in the Certificated Class A-G Notes, the Holder of any Certificated A-G Note may transfer or exchange the same in whole or in part (in a principal amount equal to the minimum authorized denomination or any larger authorized amount) by surrendering such Certificated A-G Note at the Corporate Trust Office or at the office of any Note Transfer Agent, together with (x) in the case of any transfer, an executed instrument of assignment and (y) in the case of any exchange, a written request for exchange. Following a proper request for transfer or exchange, the Trustee shall (provided it has available in its possession an inventory of Certificated Class A-G Notes), within five Business Days of such request if made at such Corporate Trust Office, or within ten Business Days if made at the office of a Note Transfer Agent (other than the Trustee), authenticate and make available at such Corporate Trust Office or at the office of such Note Transfer Agent, as the case may be, to the transferee (in the case of transfer) or Indenture Issued Noteholder (in the case of exchange) or send by first class mail (at the risk of the transferee in the case of transfer or Indenture Issued Noteholder in the case of exchange) to such address as the transferee or Indenture Issued
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Noteholder, as applicable, may request, a Certificated A-G Note or Notes, as the case may require, for a like aggregate principal amount and in such authorized denomination or denominations as may be requested. The presentation for transfer or exchange of any Certificated Note shall not be valid unless made at the Corporate Trust Office or at the office of a Note Transfer Agent or by a duly authorized attorney-in-fact. Beneficial interests in Global Notes shall be exchangeable for Certificated Class A-G Notes only under the limited circumstances described in Section 2.4(b)(5).
(5) Interests in a Global Note deposited with or on behalf of the Depositary pursuant to Section 2.1 hereunder shall be transferred (A) to the Beneficial Owners thereof in the form of Certificated Class A-G Notes only if such transfer otherwise complies with this Section 2.4 (including Section 2.4(b)(1) and (2) and (1) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for the Indenture Issued Notes, (2) the Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor Depositary is not appointed by the Issuer within 90 days of such notice or (3) as a result of any amendment to or change in the laws or regulations of the Cayman Islands, or of any authority therein or thereof having power to tax, or in the interpretation or administration of such laws or regulations which become effective on or after the Closing Date, the Issuer, the Trustee or any Note Paying Agent becomes aware that it is or will be required to make any deduction or withholding from any payment in respect of the Global Notes which would not be required if the Global Notes were not represented by a global certificate or (B) to the purchaser thereof in the form of one or more Certificated Notes in accordance with the provisions of Section 2.4(b)(1).
(6) If interests in any Global Note are to be transferred to the Beneficial Owners thereof in the form of Certificated Class A-G Notes pursuant to Section 2.4(b)(5), such Global Note shall be surrendered by the Depositary, or its custodian on its behalf, to the Corporate Trust Office or to the Note Transfer Agent located in Minneapolis, Minnesota and the Trustee shall authenticate and deliver without charge, upon such transfer of interests in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations. The Certificated Class A-G Notes transferred pursuant to this Section 2.4 shall be executed, authenticated and delivered only in the denominations specified in Section 2.2(b) and registered in such names as the Depositary shall direct in writing.
(7) For so long as one or more Global Notes are Outstanding:
(i) the Trustee and its directors, officers, employees and agents may deal with the Depositary for all purposes (including the making of distributions on, and the giving of notices with respect to, the Global Notes);
(ii) unless otherwise provided herein and subject to Section 2.4(b)(7)(i) above, the rights of Beneficial Owners shall be exercised only through the Depositary and shall be limited to those established by law and agreements between such Beneficial Owners and the Depositary;
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(iii) for purposes of determining the identity of and principal amount of Indenture Issued Notes beneficially owned by a Beneficial Owner, the records of the Depositary shall be conclusive evidence of such identity and principal amount and the Trustee may conclusively rely on such records when acting hereunder;
(iv) the Depositary will make book-entry transfers among the Depositary Participants of the Depositary and will receive and transmit distributions of principal of and interest on the Global Notes to such Depositary Participants; and
(v) the Depositary Participants of the Depositary shall have no rights under this Indenture under or with respect to any of the Global Notes held on their behalf by the Depositary, and the Depositary may be treated by the Trustee and its agents, employees, officers and directors as the absolute owner of the Global Notes for all purposes whatsoever.
(8) Each holder of a Class A Note, Class B Note, Class C Note, Class D Note, Class E Note, Class F Note and Class G Note (in each case, or an interest therein) shall represent or shall be deemed to represent that either (A) it is not, and it is not acquiring such Note or interest therein on behalf of or with “plan assets” (within the meaning of Plan Asset Regulation) of, any employee benefit plan (within the meaning of Section 3(3) of the ERISA) or plan (within the meaning of Section 4975 of the Code) subject to ERISA or Section 4975 of the Code (or any materially similar applicable law (a Similar Law)), including certain insurance company general accounts (each, a Plan), or (B)(I) such Note is rated investment grade or better as of the date of acquisition, (II) the holder believes that the Note is properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulation and agrees to so treat such Note and (III) the holder’s acquisition, holding and disposition of such Note will not constitute or result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code (or Similar Law).
(c) Transfers of Class A-R Notes, Class H Notes and Class J Notes.
(1) If a holder of a beneficial interest in a Certificated Class A-R Note, Certificated Class H Note or Certificated Class J Note wishes at any time to transfer its interest in such Certificated Note such holder may transfer or cause the transfer of such interest for an equivalent beneficial interest in one or more such Certificated Notes, as provided below. Upon receipt by the Issuer and the Note Registrar of (A) such holder’s Certificated Class A-R Note, Certificated Class H Note or Certificated Class J Note, as applicable, properly endorsed for assignment to the transferee and (B) a certificate in the form of Exhibit C-3 (a Certificated Class A-R Note Transfer Certificate, Certificated Class H Note Transfer Certificate or Certificated Class J Note Transfer Certificate, as applicable) given by the transferee of such beneficial interest, the Note Registrar shall cancel such Certificated Note, record the transfer in the Note Register and authenticate and deliver one or more Certificated Class A-R Notes, Certificated Class H Notes or Certificated Class J Notes, as applicable, bearing the same designation as the related Certificated Notes endorsed for transfer, registered in the names specified in the assignment described in clause (A) above, in principal
70
amounts designated by the transferee (the aggregate of such amounts being the same as the beneficial interest in the related Certificated Notes surrendered by the transferor) and in the minimum denominations and integral multiples in excess thereof. In addition, the Note Registrar shall not register any transfer of any Certificated Class H Notes or Certificated Class J Notes to a proposed transferee that has represented that it is a Benefit Plan Investor or a Controlling Person if the transfer would result in Benefit Plan Investors owning 25% or more of the value of the related Certificated Notes outstanding (as determined without regard to interests held by Controlling Persons, and otherwise contemplated by the applicable regulations under ERISA) immediately after such transfer, based on assurances received from investors. Without limiting the generality of the forgoing, the Note Registrar shall not register any transfer of Certificated Class H Notes or Certificated Class J Notes represented by Regulation S Notes to a proposed transferee of such Certificated Notes that has represented that it is or may become a Benefit Plan Investor or a Controlling Person. Without limiting the generality of the foregoing, a transfer of beneficial interests in a Certificated Class H Note or Certificated Class J Note will not be permitted unless an ERISA Restriction Certificate substantially in the form set forth in Exhibit C-4 is obtained from each transferee of the related Certificated Note, for the benefit of the Issuer, the Trustee and the Initial Purchaser, (i) in the case of a Certificated Class H Note or Certificated Class J Note not represented by a Regulation S Note, regarding whether it is, or is not and will not be, a Benefit Plan Investor or Controlling Person, or (ii) in the case of a Certificated Class H Note or Certificated Class J Note or represented by a Regulation S Note, to the effect that it is not and will not be a Benefit Plan Investor or Controlling Person. Any purported transfer in violation of the foregoing requirements shall be null and void ab initio, and the Note Registrar shall not register any such purported transfer and shall not authenticate and deliver such Certificated Class A-R Notes, Certificated Class H Notes or Certificated Class J Notes, as applicable.
(2) If a holder of a beneficial interest in one or more Certificated Class A-R Notes, Certificated Class H Notes or Certificated Class J Notes wishes at any time to exchange its interest in such related Certificated Notes for an interest in one or more such Certificated Notes of different principal amounts, such holder may exchange or cause the exchange of such interest for an equivalent beneficial interest in the Certificated Class A-R Notes, Certificated Class H Notes or Certificated Class J Notes, as applicable, bearing the same designation as the related Certificated Notes endorsed for exchange as provided below. Upon receipt by the Note Registrar of (A) such holder’s Certificated Class A-R Notes, Certificated Class H Notes or Certificated Class J Notes, as applicable, properly endorsed for such exchange and (B) written instructions from such holder designating the number and principal amounts of the applicable Certificated Notes to be issued (the aggregate principal amounts of such Certificated Notes being the same as the Certificated Notes surrendered for exchange), then the Note Registrar shall cancel such Certificated Notes, record the exchange in the Note Register and authenticate and deliver one or more Certificated Notes bearing the same designation endorsed for exchange, registered in the same names as the related Certificated Notes surrendered by such holder or such different names as are specified in the endorsement described in clause (A) above, in different principal amounts designated by such holder (the Class and the aggregate principal amounts being the same as the beneficial interest in the
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Certificated Class A-R Notes, Certificated Class H Notes or Certificated Class J Notes, as applicable, surrendered by such holder), and the minimum denominations and integral multiples in excess.
(3) Notwithstanding anything to the contrary herein, for so long as any Indenture Issued Notes other than the Class H Notes or the Class J Notes remain outstanding, the Note Registrar shall not register transfer of any Class H Notes or Class J Notes, as applicable, unless (i) the proposed transferee shall have delivered to the Trustee and the Note Registrar an Opinion of Counsel rendered by nationally recognized U.S. tax counsel experienced in such matters to the effect that the Class H Notes or the Class J Notes, as applicable, will be treated as indebtedness for U.S. federal income tax purposes, (ii) the proposed transferee shall have delivered to the Trustee and the Note Registrar a certificate in the form of Exhibit I (a Class H Note Tax Transfer Certificate or a Class J Note Tax Transfer Certificate, as applicable), or (iii) the proposed transferee shall have delivered to the Collateral Manager and the Trustee an Opinion of Counsel described in Section 7(e) of the Collateral Management Agreement; provided, however, that the Class H Notes and Class J Notes may be pledged to secure indebtedness and may be the subject of repurchase agreements treated by the Issuer as secured indebtedness for U.S. federal income tax purposes, and may be transferred following a default under such indebtedness or repurchase transaction without regard to the foregoing limitations (provided that the Issuer gives notice to the Trustee of the occurrence of such event).
(4) Upon the transfer, exchange or replacement of a Class A-R Certificated Note bearing a legend, or upon specific request for removal of the legend on such Class A-R Certificated Note, the Issuer and the Co-Issuer will deliver only Class A-R Certificated Notes that bear the legend, or will refuse to remove the legend, as the case may be, unless there is delivered to the Issuer and Co- Issuer satisfactory evidence, which may include an opinion of counsel, as may reasonably be required by the Issuer and the Co-Issuer that neither the legend nor the restrictions on transfer set forth therein are required to ensure compliance with the provisions of the Securities Act or the Investment Company Act.
(5) Each person who becomes a beneficial owner of the Certificated Class A-R Notes will be required to represent and agree, among other things, as follows:
(i) the owner is one of the following:
(A) (I) a Qualified Purchaser, (II) a Qualified Institutional Buyer, (III) is aware that the sale of the Certificated Class A-R Notes to it is being made in reliance on the exemption from registration provided by Rule 144A under the Securities Act, (IV) is acquiring the Certificated Class A-R Notes for its own account or for one or more accounts, each of which is a Qualified Institutional Buyer who is a Qualified Purchaser, and as to each of which the owner exercises sole investment discretion, and (V) is acquiring the Certificated Class A-R Notes in a minimum principal amount of not less than $500,000 for each such account; or
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(B) (I) is not a U.S. Person, (II) is aware that the sale of the Certificated Class A-R Notes to it is being made in reliance on the exemption from registration provided by Regulation S and (III) understands that the Certificated Class A-R Notes offered in reliance on Regulation S under the Securities Act will bear the legend set forth above;
(ii) and in each case the owner has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of its investment in the Certificated Class A-R Notes and the owner and any accounts for which it is acting are each able to bear the economic risk of the investment.
(d) Denominations; Qualified Purchaser Status. No Person may hold a beneficial interest in any Indenture Issued Note (other than the Class-A-R Notes) except in a denomination authorized for the Indenture Issued Notes of such Class under Section 2.2(b). In addition, no transfer of an Indenture Issued Note (other than the Class-A-R Notes) or any interest therein, may be made to any Person that is a U.S. Person unless such Person is (A) a Qualified Institutional Buyer and (B) a Qualified Purchaser. In addition, no transfer of an Indenture Issued Note (other than the Class-A-R Notes) or any interest therein may be made to any Person that is a U.S. Person unless such Person (A) was not formed for the purpose of investing in either of the Co-Issuers (except when each beneficial owner of the purchaser is a Qualified Purchaser, (B) has received the necessary consent from its beneficial owners if it is a private investment company formed before April 30, 1996, (C) is not a broker-dealer that owns and invests on a discretionary basis less than U.S.$25,000,000 in securities of unaffiliated issuers, (D) is not a pension, profit, sharing or other retirement trust fund or plan in which the partners, beneficiaries or participants, as applicable, may designate the particular investments to be made, and in a transaction that may be effected without loss of any applicable Investment Company Act exemption, (E) will provide notice to any subsequent transferee of the transfer restrictions provided in the legend, (F) will hold and transfer in a principal amount of not less than U.S.$500,000, for it or for each account for which it is acting and (G) will provide the Issuer from time to time such information as it may reasonably request in order to ascertain compliance with the foregoing. Any purported transfer that is not in compliance with this Section 2.4 or the legends on the Indenture Issued Notes will be void ab initio, and will not operate to transfer any rights to the transferee, notwithstanding any instructions to the contrary to the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes), the Trustee or any intermediary. If any purported transfer of Indenture Issued Notes (other than the Class-A-R Notes) or any beneficial interest therein to a purported transferee does not comply with the requirements set forth in this Section 2.4 or the legends on the Indenture Issued Notes, then the purported transferor of such Indenture Issued Notes (other than the Class-A-R Notes) or beneficial interest therein shall be required to cause the purported transferee to surrender the Indenture Issued Notes (other than the Class-A-R Notes) or any beneficial interest therein in return for a refund of the consideration paid therefor by such transferee (together with interest thereon) or to cause the purported transferee to dispose of such Indenture Issued Notes (other than the Class-A-R Notes) or beneficial interest promptly in one or more open market sales to one or more persons each of whom satisfies the requirements of this Section 2.4 and the legends on the Indenture Issued Notes (other than the Class-A-R Notes) and such purported transferor shall take, and shall cause such
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transferee to take, all further action necessary or desirable, in the judgment of the Trustee, to ensure that such Indenture Issued Notes (other than the Class-A-R Notes) or any beneficial interest therein are held by persons in compliance therewith.
(e) Requirement to Sell.
(1) If, notwithstanding the restrictions set forth in this Section 2.4, either of the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) determines that any beneficial owner of a Rule 144A Note (A) is a U.S. Person and (B) is not a Qualified Institutional Buyer and also a Qualified Purchaser, either of the Co-Issuers or the Issuer, as applicable, may require, by notice to such beneficial owner that such beneficial owner sell all of its right, title and interest to such Indenture Issued Note (or interest therein) to a Person that is both (1) a Qualified Institutional Buyer and (2) a Qualified Purchaser, with such sale to be effected within 30 days after notice of such sale requirement is given. If such beneficial owner fails to effect the transfer required within such 30-day period, (x) upon written direction from the Issuer, the Trustee shall, and is hereby irrevocably authorized by such beneficial owner to cause its interest in such Indenture Issued Note to be transferred in a commercially reasonable sale (conducted by the Trustee in accordance with Sections 9-610 and 9-611 of the UCC as applied to securities that are customarily sold on a recognized market or that may decline speedily in value) to a Person that certifies to the Trustee, in connection with such transfer, that such Person is both (1) a Qualified Institutional Buyer and (2) a Qualified Purchaser and (y) pending such transfer, no further payments will be made in respect of such Indenture Issued Note (or beneficial interest therein) held by such beneficial owner.
(2) If, notwithstanding the restrictions set forth in this Section 2.4, either of the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) determines that any beneficial owner of a Regulation S Note is (A) a U.S. Person or (B) a Benefit Plan Investor or a Controlling Person (for the purposes of ERISA), either of the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) may require, by notice to such beneficial owner that such beneficial owner sell all of its right, title and interest to such Indenture Issued Note (or interest therein) to a Person that is not (1) a U.S. Person or (2) a Benefit Plan Investor or a Controlling Person (for the purposes of ERISA), with such sale to be effected within 30 days after notice of such sale requirement is given. If such beneficial owner fails to effect the transfer required within such 30-day period, (x) upon written direction from the Issuer, the Trustee shall, and is hereby irrevocably authorized by such beneficial owner to cause its interest in such Indenture Issued Note to be transferred in a commercially reasonable sale (conducted by the Trustee in accordance with Sections 9-610 and 9-611 of the UCC as applied to securities that are customarily sold on a recognized market or that may decline speedily in value) to a Person that certifies to the Trustee, in connection with such transfer, that such Person is neither (1) a U.S. Person nor (2) a Benefit Plan Investor or a Controlling Person (for the purposes of ERISA) and (y) pending such transfer, no further payments
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will be made in respect of such Indenture Issued Note (or beneficial interest therein) held by such beneficial owner.
(f) Legends. Any Indenture Issued Note issued upon the transfer, exchange or replacement of Indenture Issued Notes shall bear such applicable legend set forth in the relevant Exhibit hereto unless there is delivered to the Trustee, the Note Registrar and the Co Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) such satisfactory evidence, which may include an Opinion of Counsel, as may be reasonably required by any of the Trustee, the Note Registrar and the Co Issuers (in the case of the Indenture Issued Notes other than the Class K Notes) or the Issuer (in the case of the Class K Notes) to the effect that neither such applicable legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A and to ensure that neither of the Co Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes) nor the pool of Collateral becomes an investment company required to be registered under the Investment Company Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Co Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes), shall authenticate and deliver Indenture Issued Notes that do not bear such applicable legend
(g) Expenses; Acknowledgment of Transfer. Transfer, registration and exchange shall be permitted as provided in this Section 2.4 without any charge to the Indenture Issued Noteholder except for a sum sufficient to cover any tax or other governmental charge payable in connection therewith or the expenses of delivery (if any) not made by regular mail and payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith pursuant to Section 2.4(a). Registration of the transfer of a Indenture Issued Note by the Trustee shall be deemed to be the acknowledgment of such transfer on behalf of the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes).
(h) Surrender upon Final Payment. Upon final payment due on the date on which all outstanding unpaid principal of a Indenture Issued Note becomes due and payable as therein or herein provided, whether at the Stated Maturity Date or by declaration of acceleration, call for redemption or otherwise, the Holder thereof shall present and surrender such Indenture Issued Note at the Corporate Trust Office of the Trustee in Minneapolis, Minnesota.
(i) Repurchase and Cancellation of Indenture Issued Notes. The Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) will not purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the Outstanding Indenture Issued Notes except upon the redemption of the Indenture Issued Notes in accordance with the terms of this Indenture and the Indenture Issued Notes. The Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) will promptly cancel all Indenture Issued Notes acquired by them pursuant to any payment, purchase, redemption, prepayment or other acquisition of Indenture Issued Notes pursuant to any
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provision of this Indenture and no Indenture Issued Notes may be issued in substitution or exchange for any such Indenture Issued Notes.
(j) Compliance with Transfer Restrictions. Notwithstanding anything contained herein to the contrary, neither the Trustee nor the Note Registrar shall be responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the Securities Act, applicable state securities laws, the rules of any Depositary, ERISA, the Code or the Investment Company Act; provided that if a certificate is specifically required by the express terms of this Section 2.4 to be delivered to the Trustee or the Note Registrar by a purchaser or transferee of a Indenture Issued Note, the Trustee or the Note Registrar, as the case may be, shall be under a duty to receive and examine the same to determine whether the transfer contemplated thereby substantially complies with the express terms of this Indenture and shall promptly notify the party delivering the same if such transfer does not comply with such terms. To the extent applicable to the Issuer, the Issuer shall impose additional restrictions to comply with the USA PATRIOT Act, and any such transfer restrictions shall be binding on each Holder or Beneficial Owner of a Indenture Issued Note. The Issuer shall notify the Trustee and the Note Registrar of the imposition of any such transfer restrictions.
(k) Physical Indenture Issued Notes. The Issuer will promptly make available to the Trustee without charge a reasonable supply of Certificated Notes in definitive, fully Registered Form, without interest coupons.
2.5. MUTILATED, DEFACED, DESTROYED, LOST OR STOLEN INDENTURE ISSUED NOTES
If (a) any mutilated or defaced Indenture Issued Note is surrendered to a Note Transfer Agent, or if there shall be delivered to either of the Co-Issuers (in the case of Indenture Issued Notes other than Class H Notes and the Class J Notes) or the Issuer (in the case of Class H Notes and the Class J Notes), the Trustee and the Note Transfer Agent (each, a Specified Person) evidence to their reasonable satisfaction of the destruction, loss or theft of any Indenture Issued Note, and (b) there is delivered to the Specified Persons such security or indemnity as may reasonably be required by them to save each of them harmless then, in the absence of notice to the Specified Persons that such Indenture Issued Note has been acquired by a bona fide purchaser, the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) shall execute and shall direct the Trustee to authenticate, and upon Issuer Request the Trustee shall authenticate and deliver, in lieu of any such mutilated, defaced, destroyed, lost or stolen Indenture Issued Note, a new Indenture Issued Note of the same Class as such mutilated, defaced, destroyed, lost or stolen Indenture Issued Note, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, dated the date of its authentication, bearing interest from the date to which interest has been paid on the mutilated, defaced, destroyed, lost or stolen Indenture Issued Note and bearing a number not contemporaneously outstanding.
If, after delivery of such new Indenture Issued Note, a bona fide purchaser of the predecessor Indenture Issued Note presents for payment, transfer or exchange such predecessor Indenture Issued Note, the Specified Persons shall be entitled to recover such new Indenture Issued Note from the Person to whom it was delivered or any Person taking therefrom, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Specified Persons in connection therewith.
In case any such mutilated, defaced, destroyed, lost or stolen Indenture Issued Note has become due and payable, the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes
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and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) in their or its (as applicable) discretion may, instead of issuing a new Indenture Issued Note, pay such Indenture Issued Note without requiring surrender thereof except that any mutilated Indenture Issued Note shall be surrendered.
Upon the issuance of any new Indenture Issued Note under this Section 2.5, the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes), the Trustee or any Note Transfer Agent may require the payment by the registered Holder thereof of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Indenture Issued Note issued pursuant to this Section 2.5 in lieu of any mutilated, defaced, destroyed, lost or stolen Indenture Issued Note, shall constitute an original additional contractual obligation of the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) and the Issuer (in the case of the Class H Notes and the Class J Notes) and such new Indenture Issued Note shall be entitled, subject to the second paragraph of this Section 2.5, to all the benefits of this Indenture equally and proportionately with any and all other Indenture Issued Notes duly issued hereunder.
The provisions of this Section 2.5 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, defaced, destroyed, lost or stolen Indenture Issued Notes.
2.6. PAYMENT OF PRINCIPAL AND INTEREST; RIGHTS PRESERVED
(a) Each Class of Rated Notes shall accrue interest during each Interest Period applicable to such Class in the manner and at the Applicable Periodic Interest Rate specified in Section 2.2. Interest on each Class of Rated Notes shall be due and payable on each Payment Date; provided that (i) interest on the Class A-2 Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Senior Notes (together with any Defaulted Interest thereon) (ii) interest on the Class B Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), (iii) interest on the Class C Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon) and on the Class B Notes (together with any Defaulted Interest thereon), (iv) interest on the Class D Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), on the Class B Notes (together with any Defaulted Interest thereon) and on the Class C Notes (together with any Defaulted Interest thereon), (v) interest on the Class E Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), on the Class B Notes (together with any Defaulted Interest thereon), on the Class C Notes (together with any Defaulted Interest thereon) and on the Class D Notes (together with any Defaulted Interest thereon), (vi) interest on the Class F Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), on the Class B Notes (together with any Defaulted Interest thereon), on the Class C Notes (together with any Defaulted Interest
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thereon), on the Class D Notes (together with any Defaulted Interest thereon) and on the Class E Notes (together with any Defaulted Interest thereon), (vii) interest on the Class G Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), on the Class B Notes (together with any Defaulted Interest thereon), on the Class C Notes (together with any Defaulted Interest thereon), on the Class D Notes (together with any Defaulted Interest thereon), on the Class E Notes (together with any Defaulted Interest thereon) and on the Class F Notes (together with any Defaulted Interest thereon), (viii) interest on the Class H Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), on the Class B Notes (together with any Defaulted Interest thereon), on the Class C Notes (together with any Defaulted Interest thereon), on the Class D Notes (together with any Defaulted Interest thereon), on the Class E Notes (together with any Defaulted Interest thereon), on the Class F Notes (together with any Defaulted Interest thereon) and on the Class G Notes (together with any Defaulted Interest thereon), (ix) interest on the Class J Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), on the Class B Notes (together with any Defaulted Interest thereon), on the Class C Notes (together with any Defaulted Interest thereon), on the Class D Notes (together with any Defaulted Interest thereon), on the Class E Notes (together with any Defaulted Interest thereon), on the Class F Notes (together with any Defaulted Interest thereon), on the Class G Notes (together with any Defaulted Interest thereon) and on the Class H Notes (together with any Defaulted Interest thereon), (x) interest on the Class K Notes is subordinated in right of payment to the prior payment in full on each Payment Date of the interest due and payable on the Class A Notes (together with any Defaulted Interest thereon), on the Class B Notes (together with any Defaulted Interest thereon), on the Class C Notes (together with any Defaulted Interest thereon), on the Class D Notes (together with any Defaulted Interest thereon), on the Class E Notes (together with any Defaulted Interest thereon), on the Class F Notes (together with any Defaulted Interest thereon), on the Class G Notes (together with any Defaulted Interest thereon), on the Class H Notes (together with any Defaulted Interest thereon) and on the Class J Notes (together with any Defaulted Interest thereon) and (xi) interest on all Rated Notes is subordinated in right of payment to the prior payment in full on each Payment Date of other amounts in accordance with Section 11.1. Payments of interest on the Class A Senior Notes (including any Defaulted Interest) and Class A-R Commitment Fee will be paid on a pro rata basis between the Class A-1 Notes and the Class A-R Notes based on amount due. Except as provided in Section 5.5, no payment shall be made by the Co-Issuers hereunder other than on a Payment Date.
So long as any Class A Notes or Class B Notes are Outstanding, any Class C Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class C Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which funds are available to pay such Class C Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
So long as any Class A Notes, Class B Notes or Class C Notes are Outstanding, any Class D Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class D Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which
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funds are available to pay such Class D Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
So long as any Class A Notes, Class B Notes, Class C Notes or Class D Notes are Outstanding, any Class E Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class E Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which funds are available to pay such Class E Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
So long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes or Class E Notes are Outstanding, any Class F Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class F Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which funds are available to pay such Class F Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
So long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes or Class F Notes are Outstanding, any Class G Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class G Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which funds are available to pay such Class G Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
So long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes or Class G Notes are Outstanding, any Class H Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class H Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which funds are available to pay such Class H Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
So long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes or Class H Notes are Outstanding, any Class J Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class J Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which funds are available to pay such Class J Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
So long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes or Class J Notes are Outstanding, any Class K Applicable Periodic Interest Shortfall Amount shall be deferred and added to the then Aggregate Outstanding Amount of the Class K Notes and shall not be considered “due and payable” for the purposes of Section 5.1(a) until the Payment Date on which funds are available to pay such Class K Applicable Periodic Interest Shortfall Amount in accordance with Section 11.1.
(b) The principal of each Rated Note shall be payable no later than the Stated Maturity Date thereof unless the unpaid principal of such Rated Note becomes due and payable at an
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earlier date by declaration of acceleration, call for redemption or otherwise; provided that:
(1) so long as any Class A Senior Notes are Outstanding, except as provided in Section 9 and Section 11.1(b)(22), the payment of principal of the Class A-2 Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Senior Notes have been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Senior Notes and other amounts payable in accordance with Section 11.1;
(2) so long as any Class A Notes are Outstanding, except as provided in Section 9 and Section 11.1(b)(22), the payment of principal of the Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes and other amounts payable in accordance with Section 11.1;
(3) so long as any Class A Notes or Class B Notes are Outstanding, except as provided in Section 9 and Section 11.1(b)(22), the payment of principal of the Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes and Class B Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes and Class B Notes and other amounts payable in accordance with Section 11.1;
(4) so long as any Class A Notes, Class B Notes or Class C Notes are Outstanding, except as provided in Section 11.1(b)(22), the payment of principal of the Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes, Class B Notes and Class C Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes, Class B Notes and Class C Notes and other amounts payable in accordance with Section 11.1;
(5) so long as any Class A Notes, Class B Notes, Class C Notes or Class D Notes are Outstanding, except as provided in Section 11.1(b)(22), the payment of principal of the Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes, Class B Notes, Class C Notes and
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Class D Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes, Class B Notes, Class C Notes and Class D Notes and other amounts payable in accordance with Section 11.1;
(6) so long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes or Class E Notes are Outstanding, except as provided in Section 11.1(b)(22), the payment of principal of the Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes and other amounts payable in accordance with Section 11.1;
(6) so long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes or Class F Notes are Outstanding, except as provided in Section 11.1(b)(22), the payment of principal of the Class G Notes, Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes and Class F Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes and Class F Notes and other amounts payable in accordance with Section 11.1;
(7) so long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes or Class G Notes are Outstanding, except as provided in Section 11.1(b)(22), the payment of principal of the Class H Notes, Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes and other amounts payable in accordance with Section 11.1; and
(8) so long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes or Class H Notes are Outstanding, except as provided in Section 11.1(b)(22), the payment of principal of the Class J Notes and Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes and Class H Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes,
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Class G Notes and Class H Notes and other amounts payable in accordance with Section 11.1.
(9) so long as any Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes or Class J Notes are Outstanding, except as provided in Section 11.1(b)(22), the payment of principal of the Class K Notes (to the PAA Issued Note Paying Agent for payment on the Class K Notes in accordance with the Paying Agency Agreement) (x) may only occur after principal of the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes and Class J Notes has been paid in full and (y) shall be subordinated to the payment on each Payment Date of the principal and interest due and payable on the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes and Class J Notes and other amounts payable in accordance with Section 11.1.
Provided that, payments of principal of the Class A Senior Notes will be made pro rata based on their respective outstanding principal amounts; however, during the Reinvestment Period, the draws under Class A-R Notes may be prepaid prior to any payments of principal of the Class A-1 Notes. No payments of principal will be distributable in respect of any Class of Notes junior to the Class A-R Notes so long as any Class A-R Commitments remain outstanding, except to the extent described herein in connection with a Special Amortization as provided in Section 11.1(b)(22).
(c) So long as the Coverage Tests are satisfied, principal will not be payable on any Class of Rated Notes except (i) upon the occurrence of a Redemption, (ii) if a Rating Confirmation Failure occurs, (iii) in the case of any Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes or Class K Notes, to pay amounts in respect of the Class C Cumulative Applicable Periodic Interest Shortfall Amount, the Class D Cumulative Applicable Periodic Interest Shortfall Amount, the Class E Cumulative Applicable Periodic Interest Shortfall Amount, the Class F Cumulative Applicable Periodic Interest Shortfall Amount, the Class G Cumulative Applicable Periodic Interest Shortfall Amount, the Class H Cumulative Applicable Periodic Interest Shortfall Amount, the Class J Cumulative Applicable Periodic Interest Shortfall Amount or the Class K Cumulative Applicable Periodic Interest Shortfall Amount, as the case may be, in accordance with Section 11.1 and (iv) on each Payment Date, in accordance with Section 11.1.
(d) As a condition to the payment of any principal of or interest on any Rated Note without the imposition of withholding tax, any Note Paying Agent shall require the previous delivery of properly completed and signed applicable U.S. federal income tax certifications (generally, an Internal Revenue Service Form W-9 (or applicable successor form) in the case of a person that is a “United States person” within the meaning of Section 7701(a)(30) of the Code or the applicable Internal Revenue Service Form W-8 (or applicable successor form) in the case of a person that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code) or other certification acceptable to it to enable the Co-Issuers (in the case of the Indenture Issued Notes other than the Class H Notes and the Class J Notes) or the Issuer (in the case of the Class H Notes and the Class J Notes), the Trustee and any Note Paying Agent to determine their duties and liabilities with respect to any taxes or other charges that they may be required to pay, deduct or withhold in respect of such Rated Note or the Holder of such Rated Note under
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any present or future law or regulation of the Cayman Islands or the United States or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any such law or regulation.
(e) All payments made by the Issuer under the Rated Notes will be made without any deduction or withholding for or on the account of any tax unless such deduction or withholding is required by applicable law, as modified by the practice of any relevant governmental authority, then in effect. If the Issuer is so required to deduct or withhold, then neither the Issuer nor the Co-Issuer will be obligated to pay any additional amounts in respect of such withholding or deduction.
(f) Payments in respect of principal of and interest on the Rated Notes shall be payable by wire transfer in immediately Available Funds to a Dollar account maintained or specified by the Rated Noteholders in accordance with wire transfer instructions received by any Note Paying Agent on or before the Record Date or, if no wire transfer instructions are received by a Note Paying Agent, by a Dollar check drawn on a bank in the United States mailed to the address of such Rated Noteholder as it appears on the Note Register at the close of business on the Record Date for such payment. Such wire instructions may direct that any such payments may be paid to a Dollar account of an assignee or designee of any Rated Noteholder and may be irrevocable to the effect set forth therein.
(g) The principal of and interest on any Rated Note which is payable on a Redemption Date or in accordance with Section 11.1 on a Payment Date and is punctually paid or duly provided for on such Redemption Date or Payment Date shall be paid to the Person in whose name that Rated Note (or one or more predecessor Rated Notes) is registered at the close of business on the Record Date for such payment. All such payments that are mailed or wired and returned to the Note Paying Agent shall be held for payment as herein provided at the office or agency of the Co-Issuers (in the case of the Rated Notes other than the Class H Notes, Class J Notes and Class K Notes) or the Issuer (in the case of the Class H Notes, Class J Notes and Class K Notes) to be maintained as provided in Section 7.2.
Payments to Holders of the Rated Notes of each Class shall be made in the proportion that the Aggregate Outstanding Amount of the Rated Notes of such Class registered in the name of each such Holder on the Record Date for such payment bears to the Aggregate Outstanding Amount of all Rated Notes of such Class on such Record Date.
(h) Payment of any Defaulted Interest may be made in any other lawful manner in accordance with Section 11.1 if notice of such payment is given by the Trustee to the Co-Issuers and the Rated Noteholders, and such manner of payment shall be deemed practicable by the Trustee.
(i) All reductions in the principal amount of a Rated Note (or one or more predecessor Rated Notes) effected by payments of installments of principal made on any Payment Date or Redemption Date shall be binding upon all future Holders of such Rated Note and of any Rated Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Rated Note.
(j) Notwithstanding anything to the contrary herein, the obligations of the Co-Issuers under the Rated Notes (other than the Class H Notes, Class J Notes and Class K Notes), the
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Issuer under the Class H Notes, Class J Notes and Class K Notes or the Co-Issuers under this Indenture or arising in connection herewith are limited recourse obligations of the Co-Issuers or the Issuer, as the case may be, payable solely from the Collateral and following realization of the Collateral, all obligations of and all claims against the Co-Issuers or the Issuer, as the case may be, hereunder or arising in connection herewith shall be extinguished and shall not thereafter revive. No recourse shall be had against any Officer, member, director, employee, security holder or incorporator of the Co-Issuers (in the case of the Rated Notes other than the Class H Notes, Class J Notes and Class K Notes) or the Issuer (in the case of the Class H Notes, Class J Notes and Class K Notes) or their respective successors or assigns for the payment of any amounts payable under the Rated Notes or this Indenture. It is understood that the foregoing provisions of this Section 2.6(j) shall not (i) prevent recourse to the Collateral for the sums due or to become due under any security, instrument or agreement which is part of the Collateral or (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Rated Notes or secured by this Indenture until such Collateral has been realized, whereupon any outstanding indebtedness or obligation shall be extinguished. It is further understood that the foregoing provisions of this Section 2.6(j) shall not limit the right of any Person to name either of the Co-Issuers (in the case of the Rated Notes other than the Class H Notes, Class J Notes and Class K Notes) or the Issuer (in the case of the Class H Notes, Class J Notes and Class K Notes) as a party defendant in any action or suit or in the exercise of any other remedy under the Rated Notes or this Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
(k) Subject to the foregoing provisions of this Section 2.6 and the provisions of Sections 2.4 and 2.5, each Rated Note delivered under this Indenture and upon registration of transfer of or in exchange for or in lieu of any other Rated Note shall carry the rights of unpaid interest and principal that were carried by such other Rated Note.
ARTICLE III
CONDITIONS PRECEDENT
3.1. GENERAL PROVISIONS
The Indenture Issued Notes (other than the Class H Notes and the Class J Notes) may be executed by the Co-Issuers, or the Issuer in the case of the Class H Notes and the Class J Notes, and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee (or an Authenticating Agent on its behalf) upon Issuer Request, upon receipt by the Trustee of the following:
(a) (1) an Officer’s certificate of the Issuer, (A) evidencing the authorization by Board Resolution of the execution and delivery of, and the performance of the Issuer’s obligations under, each Transaction Document, in each case as may be amended on or prior to, and as in effect on, the Closing Date, and the execution, authentication and delivery of the Indenture Issued Notes and specifying the Stated Maturity Date, the principal amount and the Applicable Periodic Interest Rate with respect to each Class of Indenture Issued Notes to be authenticated and delivered, and (B) certifying that (1) the attached copy of such Board Resolution is a true and complete copy thereof, (2) such resolutions have not been rescinded
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and are in full force and effect on and as of the Closing Date and (3) the Officers authorized to execute and deliver such documents hold the offices and have the signatures indicated thereon; and
(2) a certificate of the Co-Issuer (A) evidencing the authorization by the Co-Issuer by action by written consent of the limited liability company manager of the execution and delivery of, and the performance of the Co-Issuer’s obligations under, this Indenture, as may be amended on or prior to, and as in effect on, the Closing Date, and the execution, authentication and delivery of the Indenture Issued Notes (other than the Class H Notes and the Class J Notes) and specifying the Stated Maturity Date, the principal amount and the Applicable Periodic Interest Rate of each Class of Indenture Issued Notes (other than the Class H Notes and the Class J Notes) to be authenticated and delivered, and (B) certifying that (1) the attached copy of such consent of the limited liability company manager is a true and complete copy thereof, (2) such resolutions have not been rescinded and are in full force and effect on and as of the Closing Date and (3) the Officers authorized to execute and deliver such documents hold the offices and have the signatures indicated thereon;
(b) (1) either (A) a certificate of the Issuer, or other official document evidencing the due authorization, approval or consent of any governmental body or bodies, at the time having jurisdiction in the premises, together with an Opinion of Counsel to the Issuer satisfactory in form and substance to the Trustee on which the Trustee is entitled to rely to the effect that no other authorization, approval or consent of any governmental body is required for the valid issuance of the Indenture Issued Notes, or (B) an Opinion of Counsel to the Issuer satisfactory in form and substance to the Trustee to the effect that no such authorization, approval or consent of any governmental body is required for the valid issuance of the Indenture Issued Notes except as may have been given; and
(2) either (A) a certificate of the Co-Issuer or other official document evidencing the due authorization, approval or consent of any governmental body or bodies, at the time having jurisdiction in the premises, together with an Opinion of Counsel to the Co-Issuer satisfactory in form and substance to the Trustee on which the Trustee is entitled to rely to the effect that no other authorization, approval or consent of any governmental body is required for the valid issuance of the Indenture Issued Notes (other than the Class H Notes and the Class J Notes), or (B) an Opinion of Counsel to the Co-Issuer satisfactory in form and substance to the Trustee that no such authorization, approval or consent of any governmental body is required for the valid issuance of the Indenture Issued Notes (other than the Class H Notes and the Class J Notes) except as may have been given;
(c) (1) an opinion of Xxxxxxx Xxxxxxxx & Xxxx LLP, special New York counsel to the Co-Issuers, dated the Closing Date, substantially in the form of Exhibit E-1;
(2) an opinion of Walkers, special Cayman Islands counsel to the Issuer, dated the Closing Date, substantially in the form of Exhibit E-2;
(3) an opinion of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., counsel to the Trustee, dated the Closing Date, substantially in the form of Exhibit F; and
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(4) an opinion of Xxxxxxx Xxxxxxxx & Wood LLP, counsel to the Collateral Manager, dated the Closing Date, substantially in the form of Exhibit G;
(d) an Officer’s certificate of the Issuer, stating that the Issuer is not in Default under this Indenture and that the issuance of the Indenture Issued Notes will not result in a breach of any of the terms, conditions or provisions of, or constitute a Default under, the Articles, any indenture or other agreement or instrument to which the Issuer is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which the Issuer is a party or by which it may be bound or to which it may be subject; that no Event of Default shall have occurred and be continuing; that all of the representations and warranties contained herein are true and correct as of the Closing Date; that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Indenture Issued Notes applied for (including in Section 3.2) have been complied with; and that all expenses due or accrued with respect to the Offering or relating to actions taken on or in connection with the Closing Date have been paid;
(e) an Officer’s certificate of the Co-Issuer stating that the Co-Issuer is not in Default under this Indenture and that the issuance of the Indenture Issued Notes will not result in a breach of any of the terms, conditions or provisions of, or constitute a Default under, the Certificate of Formation or Limited Liability Company Operating Agreement of the Co-Issuer, any indenture or other agreement or instrument to which the Co-Issuer is a party or by which it is bound, or any order of any court or administrative agency entered in any Proceeding to which the Co-Issuer is a party or by which it may be bound or to which it may be subject; that no Event of Default shall have occurred and be continuing; that all of the representations and warranties contained herein are true and correct as of the Closing Date; that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Indenture Issued Notes applied for have been complied with; and that all expenses due or accrued with respect to the Offering or relating to actions taken on or in connection with the Closing Date have been paid;
(f) an Accountant’s Report (A) confirming the information with respect to each Collateral Interest (other than its price) set forth on a schedule setting forth each Collateral Interest and the information provided by the Issuer with respect to every other asset forming part of the Collateral, by reference to such sources as shall be specified therein, (B) confirming that, on the Closing Date, the Collateral Interests set forth on Schedule A meet the Collateral Quality Tests (with the exception of the S&P CDO Monitor Test), (C) calculating each of the Coverage Tests as of the Closing Date and (D) specifying the procedures undertaken by them to review data and computations relating to the foregoing statement;
(g) executed counterparts of this Indenture, the Account Control Agreement, the Collateral Administration Agreement, the Collateral Management Agreement and the other Transaction Documents;
(h) execution and delivery of the Financing Statement for filing against the Issuer with the Recorder of Deeds in the District of Columbia; and
(i) evidence of an entry having been made in the Issuer’s Register of Mortgages and Charges in respect of the charge.
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3.2. SECURITY FOR THE INDENTURE ISSUED NOTES
Prior to the issuance of the Indenture Issued Notes on the Closing Date, the Issuer shall cause the following conditions to be satisfied:
(a) Grant of Security Interest; Delivery of Collateral Interests. The Grant pursuant to the Granting clauses of this Indenture of all of the Issuer’s right, title and interest in and to the Collateral and the transfer of all Collateral Interests purchased by the Issuer on the Closing Date (as set forth in Schedule A) to the Trustee in the manner provided in Section 3.3(b).
(b) Certificate of the Issuer. The delivery to the Trustee of a certificate of an Authorized Officer of the Issuer or the Collateral Manager, for and on behalf of the Issuer, dated as of the Closing Date, to the effect that (x) the Issuer has no assets other than the Collateral, (y) the Issuer has no investments that do not qualify as Collateral Interests or Eligible Investments and (z) in the case of each Collateral Interest identified on Schedule A and pledged to the Trustee for inclusion in the Collateral on the Closing Date:
(1) the Issuer is the owner of such Collateral Interest free and clear of any liens, claims or encumbrances of any nature whatsoever except for those which are being released on the Closing Date and except for those Granted pursuant to this Indenture and encumbrances arising from due bills, if any, with respect to interest, or a portion thereof, accrued on such Collateral Interest prior to the first Payment Date and owed by the Issuer to the seller of such Collateral Interest;
(2) the Issuer has acquired its ownership in such Collateral Interest in good faith without notice of any adverse claim (within the meaning given to such term by Section 8-102(a)(1) of the UCC), except as described in clause (1) above;
(3) the Issuer has not assigned, pledged or otherwise encumbered any interest in such Collateral Interest (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests Granted pursuant to this Indenture;
(4) the Issuer has full right to Grant a security interest in and assign and pledge all of its right, title and interest in such Collateral Interest to the Trustee;
(5) the information set forth with respect to such Collateral Interest on Schedule A is correct and each such Collateral Interest is transferred to the Trustee as required by Section 3.2(a) (or, if any such Collateral Interest is not so transferred to the Trustee on the Closing Date, the Issuer has entered into a binding agreement to purchase such Collateral Interest for settlement within 10 days after the Closing Date);
(6) each such Collateral Interest satisfies the requirements of the definition of “Collateral Interest” and is not an Impaired Interest; and
(7) upon Grant by the Issuer, the Trustee has a first priority perfected security interest in the Collateral (assuming that any Clearing Corporation, Securities Intermediary or other entity not within the control of the Issuer involved in the Grant of Collateral takes the actions required of it under Section 3.3(b) for
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perfection of that interest) and a “security entitlement” (as defined in the UCC) with respect to Financial Assets.
(c) Rating Letters. The delivery to the Trustee of an Officer’s certificate of the Issuer, to the effect that (i) attached thereto are true and correct copies of (A) a letter signed by S&P confirming that the Class A-1 Notes have been rated “AAA”, Class A-R Notes have been rated “AAA”, Class A-2 Notes have been rated “AAA”, the Class B Notes have been rated at least “AA”, the Class C Notes have been rated at least “A+”, the Class D Notes have been rated at least “A-”, the Class E Notes have been rated at least “BBB+”, the Class F Notes have been rated at least “BBB”, the Class G Notes have been rated at least “BBB-”, each of the Class H Notes and Class J Notes have been rated at least “BB” and the Class K Notes have been rated at least “B” by S&P, (B) a letter signed by Moody’s confirming that the Class A-1 Notes have been rated “Aaa”, Class A-R Notes have been rated “Aaa”, Class A-2 Notes have been rated “Aaa”, the Class B Notes have been rated at least “Aa2”, the Class C Notes have been rated at least “A1”, the Class D Notes have been rated at least “A3”, the Class E Notes have been rated at least “Baa1”, the Class F Notes have been rated at least “Baa2”, the Class G Notes have been rated at least “Baa3”, the Class H Notes have been rated at least “Ba2”, the Class J Notes have been rated at least “Ba3” and the Class K Notes have been rated at least “B2” by Moody’s and (C) a letter signed by Fitch confirming that the Class A-1 Notes have been rated “AAA”, Class A-R Notes have been rated “AAA”, Class A-2 Notes have been rated “AAA”, the Class B Notes have been rated at least “AA”, the Class C Notes have been rated at least “A+”, the Class D Notes have been rated at least “A-”, the Class E Notes have been rated at least “BBB+”, the Class F Notes have been rated at least “BBB”, the Class G Notes have been rated at least “BBB-”, each of the Class H Notes and the Class J Notes have been rated at least “BB” and the Class K Notes have been rated at least “B” by Fitch and (ii) each such rating is in full force and effect on the Closing Date.
(d) Accounts. The delivery by the Trustee of evidence of the establishment of the Payment Account, the Collection Account (including each Collateral Sub-Account established therein), the Expense Reserve Account, the Interest Reserve Account, the Collateral Account, the Earn-Out Asset Account, the Class A-R Holder Collateral Account and the Uninvested Proceeds Account and, to be established on the Closing Date.
(e) Funding Certificate. The delivery to the Trustee of a funding certificate (the Funding Certificate), duly executed by an Authorized Officer of the Issuer, relating to, among other things, the disposition of the proceeds of the issuance of the Indenture Issued Notes, dated the Closing Date, in substantially the form of Exhibit D hereto.
(f) Purchases. The delivery to the Trustee of a certification of the Issuer that it shall have purchased Collateral Interests having an aggregate Principal Balance as of the related Reference Dates of not less than U.S.$398,422,758.
3.3. CUSTODIANSHIP; TRANSFER OF COLLATERAL INTERESTS AND ELIGIBLE INVESTMENTS
(a) The Trustee shall hold all Certificated Securities and Instruments in physical form at the office of a custodian appointed by it in Minnesota (together with any successor, the Custodian). Initially, such Custodian shall be Xxxxx Fargo Bank, National Association with its address at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: CDO Trust Services—N-Star REL CDO VI. Any successor custodian shall be a state or national bank or trust company that is not an
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Affiliate of the Issuer or the Co-Issuer, has a long-term debt rating of at least “BBB+” by S&P and has a combined capital and surplus of at least U.S.$250,000,000.
(b) Each Collateral Interest, Equity Interest and Eligible Investment shall be credited to the appropriate Account. Each time that the Issuer shall direct or cause the acquisition of any Collateral Interest, Equity Interest or Eligible Investment, the Trustee (on behalf of the Issuer) shall, if such Collateral Interest, Equity Interest or Eligible Investment has not already been transferred to the Collateral Account and credited thereto, cause the transfer of such Collateral Interest, Equity Interest or Eligible Investment to the Custodian to be held in and credited to the Collateral Account for the benefit of the Trustee in accordance with the terms of this Indenture. The security interest of the Trustee in the funds or other property utilized in connection with such acquisition shall, immediately and without further action on the part of the Trustee, be released. The security interest of the Trustee shall nevertheless come into existence and continue in the Collateral Interest, Equity Interest or Eligible Investment so acquired, including all rights of the Issuer in and to any contracts related to and proceeds of such Collateral Interest, Equity Interest or Eligible Investment.
(c) On the Closing Date, on each day thereafter, if any, that any Collateral is acquired or otherwise becomes subject to the lien of this Indenture and on the Effective Date, the Issuer represents and warrants to the Trustee as follows:
(1) This Indenture creates a valid and continuing security interest (as defined in the applicable Uniform Commercial Code) in the Collateral in favor of the Trustee on behalf and for the benefit of the Secured Parties, which security interest is prior to all other liens and security interests, and is enforceable as such as against creditors of and purchasers from the Issuer and, upon delivery of the Collateral Interests and filing of the appropriate financing statements in the appropriate filing offices, the lien and security interest created by this Indenture shall be a perfected first priority security interest in favor of the Trustee for the benefit of the Secured Parties.
(2) The Issuer owns and has good and marketable title to the Collateral free and clear of any liens, claims, encumbrances or defects of any nature whatsoever except for those which are being released on the Closing Date or on the date of purchase by the Issuer or those created pursuant to or contemplated under this Indenture and encumbrances arising from due bills, if any, with respect to interest, or a portion thereof, accrued on any Collateral Interest prior to the first payment date and owed by the Issuer to the seller of such Collateral Interest.
(3) The Issuer has acquired its ownership in each such Collateral Interest, or will acquire in the case of any Collateral Interests which the Issuer has on or before the Closing Date committed to purchase, but which will not have settled on or before the Closing Date or any additional Collateral Interests or Substitute Collateral Interests acquired by the Issuer after the Closing Date, in good faith without notice of any adverse claim, except as described in clause (2) above.
(4) The Issuer (a) has delivered each such Collateral Interest, or will deliver any Collateral Interests which the Issuer has on or before the Closing Date committed to purchase, but which will not have settled on or before the Closing Date or any additional Collateral Interests or Substitute Collateral Interests acquired by the
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Issuer after the Closing Date, to the Trustee and (b) has not assigned, pledged, sold, granted a security interest in or otherwise encumbered any interest in such Collateral Interest other than interests granted pursuant to this Indenture.
(5) The Issuer has full right to grant all security interests granted herein.
(6) All Collateral is comprised of either “securities,” “instruments,” “tangible chattel paper,” “accounts,” “security entitlements” or “general intangibles,” in each case as defined in the applicable Uniform Commercial Code.
(7) Each of the Accounts, and all sub-accounts thereof, constitute securities accounts as defined in the applicable Uniform Commercial Code.
(8) All items of the Collateral that constitute security entitlements have been and will have been credited to one of the securities accounts. The securities intermediary for each of the Accounts has agreed to treat all assets credited to the securities accounts as financial assets under the applicable Uniform Commercial Code.
(9) Other than the security interest granted to the Trustee on behalf and for the benefit of the Secured Parties pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Collateral. The Issuer has not authorized the filing of and is not aware of any financing statements against the Issuer that include a description of collateral covering the Collateral other than any financing statement relating to the security interest granted to the Trustee on behalf and for the benefit of the Secured Parties hereunder or that has been terminated. The Issuer is not aware of any judgment, Pension Benefit Guarantee Corporation lien or tax lien filings against it.
(10) The Issuer has caused or will have caused, within ten (10) days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Collateral granted to the Trustee on behalf and for the benefit of the Secured Parties hereunder that constitutes chattel paper, instruments, accounts, securities entitlements or general intangibles under the applicable Uniform Commercial Code, if any.
(11) The Trustee or the Custodian has in its possession all original copies of the instruments that constitute or evidence the Collateral, if any. The instruments, loan agreements and leases that constitute or evidence the Collateral do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Trustee on behalf and for the benefit of the Secured Parties. All financing statements filed or to be filed against the Issuer in favor of the Trustee on behalf and for the benefit of the Secured Parties in connection herewith describing the Collateral contain a statement to the following effect: “A purchase of or security interest in any collateral described in this financing statement will violate the rights of the Trustee on behalf and for the benefit of (A) itself and for the benefit of the Noteholders, (B) the Collateral Manager and (C) each Hedge Counterparty.”
(12) The authoritative copy of any chattel paper that constitutes or evidences the Collateral, if any, has been communicated to the Trustee and has no marks or
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notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Trustee on behalf and for the benefit of the Secured Parties.
(13) The Issuer has received or will receive all consents and approvals required by the terms of the underlying loan agreement, indenture or other underlying documentation, if any, relating to the Collateral to the transfer to the Trustee on behalf and for the benefit of the Secured Parties of its interest and rights in the Collateral hereunder.
(14) The Issuer, the Custodian and the Trustee have entered into the Account Control Agreement pursuant to which the Custodian has agreed to comply with all instructions originated by the Trustee relating to the Accounts without further consent by the Issuer.
(15) None of the Accounts is in the name of any person other than the Trustee, held on behalf and for the benefit of the Secured Parties. The Issuer has not consented to the Trustee or the Custodian maintaining any of the Accounts to comply with entitlement orders or instructions of any Person other than the Trustee.
(16) Notwithstanding any other provision of this Indenture or any other related Transaction Document, the representations in this Section 3.3(c) shall be continuing and deemed to be updated on any day a new item of Collateral is acquired, and remain in full force and effect until such time as all obligations under this Indenture and the Notes have been finally and fully paid and performed and shall survive the termination of this Indenture for any other reason.
(17) The parties to this Indenture (i) shall not, without obtaining a Rating Confirmation, waive any of the representations in this Section 3.3(c); (ii) shall provide each of the Rating Agencies with prompt written notice of any breach of the representations contained in this Section 3.3(c) upon becoming aware thereof; and (iii) shall not, without obtaining a Rating Confirmation (as determined after any adjustment or withdrawal of the ratings following notice of such breach), waive a breach of any of the representations in this Section 3.3(c).
ARTICLE IV
SATISFACTION AND DISCHARGE
4.1. SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall be discharged and shall cease to be of further effect with respect to the Collateral securing the Indenture Issued Notes and the Indenture Issued Notes except as to (i) rights of registration of transfer and exchange, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Indenture Issued Notes, (iii) rights of Rated Noteholders to receive payments of principal thereof and interest thereon, (iv) the rights, obligations and immunities of the Trustee hereunder, (v) the rights, obligations and immunities of the Collateral Manager hereunder and under the Collateral Management Agreement and (vi) the rights of the Secured Parties as beneficiaries hereof with respect to the property deposited with the Trustee and payable to all or any of them; and the Trustee, on demand of and at the
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expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) either:
(1) all Indenture Issued Notes theretofore authenticated and delivered (other than (A) Indenture Issued Notes which have been mutilated, defaced, destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.5 and (B) Indenture Issued Notes for whose payment funds have theretofore irrevocably been deposited in trust and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 7.3) have been delivered to the Trustee for cancellation; or
(2) all Rated Notes not theretofore delivered to the Trustee or the PAA Issued Note Paying Agent, as applicable, for cancellation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity Date within one year, or (C) are to be called for redemption pursuant to Section 9.1 under an arrangement satisfactory to the Trustee for the giving of notice of redemption by the Co-Issuers pursuant to Section 9.3 and the Issuer has irrevocably deposited or caused to be deposited with the Trustee, in trust for such purpose, Cash or non-callable direct obligations of the United States in an amount sufficient, according to the Priority of Payments as verified by a firm of nationally recognized Independent certified public accountants, to pay and discharge the entire indebtedness on all Rated Notes not theretofore delivered to the Trustee or the PAA Issued Note Paying Agent, as applicable, for cancellation, including all principal and interest (including Class C Cumulative Applicable Periodic Interest Shortfall Amount, Class D Cumulative Applicable Periodic Interest Shortfall Amount, Class E Cumulative Applicable Periodic Interest Shortfall Amount, Class F Cumulative Applicable Periodic Interest Shortfall Amount, Class G Cumulative Applicable Periodic Interest Shortfall Amount, Class H Cumulative Applicable Periodic Interest Shortfall Amount, Class J Cumulative Applicable Periodic Interest Shortfall Amount and Class K Cumulative Applicable Periodic Interest Shortfall Amount accrued to the date of such deposit (in the case of Rated Notes which have become due and payable) or to the Stated Maturity Date or the Redemption Date, as the case may be; provided that (x) such obligations are entitled to the full faith and credit of the United States and (y) this subclause (2) shall not apply if an election to act in accordance with the provisions of Section 5.5(a) shall have been made and not rescinded;
(b) the Issuer has paid or caused to be paid all other sums payable hereunder (including amounts payable pursuant to the Paying Agency Agreement, the Corporate Services Agreement, the Collateral Management Agreement, any Hedge Agreement and the Collateral Administration Agreement) and no other amounts will become due and payable by the Issuer; and
(c) the Co-Issuers have delivered to the Trustee Officer’s certificates and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the rights and obligations of the Co-Issuers, the Trustee and any Hedge Counterparty and, if applicable, the Rated Noteholders, as the case may be, under Sections 2.6, 4.1, 4.2, 5.9, 5.18, 6.7, 6.8, 7.1 and 7.3 shall survive.
4.2. APPLICATION OF TRUST MONEY
All funds deposited with the Trustee pursuant to Section 4.1 for the payment of principal of and interest on the Rated Notes and amounts payable pursuant to any Hedge Agreement, the Collateral Management Agreement, the Paying Agency Agreement, the Corporate Services Agreement and the Collateral Administration Agreement shall be held in trust and applied by it in accordance with the provisions of the Rated Notes and this Indenture, including the Priority of Payments, for the payment either directly or through any Note Paying Agent, as the Trustee may determine, to the Person entitled thereto of the respective amounts in respect of which such funds has been deposited with the Trustee; but such funds need not be segregated from other funds except to the extent required herein or required by law.
4.3. REPAYMENT OF FUNDS HELD BY NOTE PAYING AGENT
In connection with the satisfaction and discharge of this Indenture with respect to the Rated Notes, all funds then held by any Note Paying Agent other than the Trustee under the provisions of this Indenture shall, upon demand of the Co-Issuers, be paid to the Trustee to be held and applied pursuant to Section 7.3 and in accordance with the Priority of Payments and thereupon such Note Paying Agent shall be released from all further liability with respect to such funds.
ARTICLE V
EVENTS OF DEFAULT; REMEDIES
5.1. EVENTS OF DEFAULT
Event of Default, is defined as any one of the following wherever used herein, means any one of the following events as set forth in Section 5.1(a) through (g) (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) a default for five Business Days in the payment, when due and payable, of any interest on any Class A Note or any Class B Note or any Class A-R Commitment Fee, or if there are no Class A Notes or Class B Notes Outstanding, of any interest on any Class C Note, or if there are no Class A Notes, Class B Notes or Class C Notes Outstanding, of any interest on any Class D Note, or if there are no Class A Notes, Class B Notes, Class C Notes or Class D Notes Outstanding, of any interest on any Class E Note, or if there are no Class A Notes, Class B Notes, Class C Notes, Class D Notes or Class E Notes Outstanding, of any interest on any Class F Note, or if there are no Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes or Class F Notes Outstanding, of any interest on any Class G Note, or if there are no Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes or Class G Notes Outstanding, of any interest on any Class H Note, or if there are no Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes or Class H Notes Outstanding, of any interest on any Class J Note, or if there are no Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F
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Notes, Class G Notes, Class H Notes or Class J Notes Outstanding, of any interest on any Class K Note;
(b) a default in the payment of any principal, when due and payable of any Rated Note other than a Class K Note (or, in the case of a default in payment resulting solely from an administrative error or omission by the Trustee, the Administrator, any Note Paying Agent, the Note Registrar or the PAA Issued Note Registrar, such default continues for a period of five Business Days);
(c) the failure on any Payment Date to disburse amounts available in accordance with Section 11.1 (except as provided in Section 5.1(a) and (b) above) and a continuation of such failure for three Business Days (or, in the case of a default in payment resulting solely from an administrative error or omission by the Trustee, the Administrator, any Note Paying Agent, the Note Registrar or the PAA Issued Note Registrar, such default continues for a period of five Business Days);
(d) the event that either of the Co-Issuers or the pool of Collateral becomes an investment company required to be registered under the Investment Company Act;
(e) a default in the performance, or breach, of any other covenant (it being understood that non-compliance with any of the Coverage Tests or the Collateral Quality Tests will not constitute a default or breach) or of a representation or warranty of either of the Co-Issuers under this Indenture, or if any certificate or writing delivered pursuant thereto proves to be incorrect when made, which default or breach has a material adverse effect on the Rated Noteholders and continues for a period of thirty (30) days (or, in the case of a default, breach or failure of a representation or warranty regarding the Collateral, fifteen days) of the earlier of knowledge by the Co-Issuers or the Collateral Manager or notice to the Co-Issuers and the Collateral Manager by the Trustee or to the Co-Issuers and the Collateral Manager by the Holders of at least 25%, of the then Aggregate Outstanding Amount of the Rated Notes of any Class, specifying such default, breach or failure and requiring it to be remedied and stating that such notice is a “Notice of Default” under this Indenture;
(f) the entry of a decree or order by a court having competent jurisdiction adjudging the Issuer or the Co-Issuer as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or the Co-Issuer under the Bankruptcy Code or any other applicable law, or appointing a receiver, liquidator, assignee, or sequestrator (or other similar official) of the Issuer or the Co-Issuer or of any substantial part of its property; ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of ninety (90) consecutive days; or
(g) the institution by the Issuer or the Co-Issuer of proceedings to be adjudicated as bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Bankruptcy Code or any other similar applicable law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee or sequestrator (or other similar official) of the Issuer or the Co-Issuer or of any substantial part of its property, respectively, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the passing of a special resolution for the
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voluntary winding up of the Issuer by its shareholders, the taking of any action by the Issuer or the Co-Issuer in furtherance of any such action.
If either of the Co-Issuers shall obtain actual knowledge that an Event of Default shall have occurred and be continuing, such Co-Issuer shall (unless the Trustee shall have provided notice of such Event of Default pursuant to Section 6.2) promptly notify the Trustee, the Rated Noteholders, any Hedge Counterparty, the Collateral Manager and each Rating Agency in writing of such Event of Default.
5.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
(a) If an Event of Default occurs and is continuing, the Trustee may or, if so directed by the Holders of a Majority in aggregate principal amount of the Outstanding Rated Notes, will declare the principal of and accrued interest on all Notes to be immediately due and payable (except that in the case of an Event of Default described in Section 5.1(f) or 5.1(g) above, such an acceleration will occur automatically).
(b) Any Hedge Agreement existing on or after such acceleration may not be terminated by the Issuer unless and until liquidation of the Collateral has commenced and annulment of such acceleration may no longer be affected.
(c) At any time after such acceleration of maturity has been made and before a judgment or decree for payment of the amount due has been obtained by the Trustee as hereinafter provided in this Section 5, the Trustee may reverse such acceleration and its consequences if the Trustee determines that:
(1) the Issuer has paid or deposited with the Trustee funds sufficient to pay:
(i) all overdue installments of principal of and interest on the Notes (including interest upon the Class C Cumulative Applicable Periodic Interest Shortfall Amount, the Class D Cumulative Applicable Periodic Interest Shortfall Amount, the Class E Cumulative Applicable Periodic Interest Shortfall Amount, the Class F Cumulative Applicable Periodic Interest Shortfall Amount, the Class G Cumulative Applicable Periodic Interest Shortfall Amount, the Class H Cumulative Applicable Periodic Interest Shortfall Amount, the Class J Cumulative Applicable Periodic Interest Shortfall Amount and the Class K Cumulative Applicable Periodic Interest Shortfall Amount, respectively, at the Applicable Periodic Interest Rate and, to the extent that payment of such interest is lawful, upon Defaulted Interest at the Applicable Periodic Interest Rate);
(ii) any accrued and unpaid amounts (including termination payments, if any) payable by the Issuer pursuant to any Hedge Agreement;
(iii) all unpaid taxes and Administrative Expenses, any accrued and unpaid Senior Collateral Management Fee, and other sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
(2) the Trustee has determined that all Events of Default of which it has actual knowledge, other than the nonpayment of the principal of or interest on the Rated Notes that have become due solely by such acceleration, have been cured; and
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(3) any Hedge Agreement in effect immediately prior to such acceleration shall remain in effect.
provided that the Trustee shall have obtained (and shall be entitled to rely upon) a certification of an Independent accounting firm of national reputation as to the sufficiency of the amounts in Section 5.2(c)(1) above, which certification shall be conclusive evidence as to such sufficiency. In addition, the Trustee may, but is not required to, obtain, at the Issuer’s expense (and may rely upon), an Opinion of Counsel as to the matters in Sections 5.2(c)(2) and (3) above.
At any such time as the Trustee shall reverse such acceleration and its consequences, the Trustee shall preserve the Collateral in accordance with the provisions of Section 5.5; provided that, if the conditions for liquidation of the Collateral are satisfied pursuant to Section 5.5, the Rated Notes may be accelerated pursuant to Section 5.2(a).
No such reversal of acceleration shall affect any subsequent Default or impair any right consequent thereon.
5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
The Co-Issuers (or, with respect to the Class H Notes, Class J Notes and Class K Notes, the Issuer only) covenant that if a Default shall occur in respect of the payment of any principal of or interest on any Class A Senior Note, the payment of principal of or interest on any Class A-2 Note (but with respect to interest, only after the Class A Senior Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class B Note (but with respect to interest, only after the Class A Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class C Note (but with respect to interest, only after the Class A Notes and Class B Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class D Note (but with respect to interest, only after the Class A Notes, Class B Notes and Class C Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class E Note (but with respect to interest, only after the Class A Notes, Class B Notes, Class C Notes and Class D Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class F Note (but with respect to interest, only after the Class A Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class G Note (but with respect to interest, only after the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes and Class F Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class H Note (but with respect to interest, only after the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes and Class G Notes and all interest accrued thereon have been paid in full), the payment of principal of or interest on any Class J Note (but with respect to interest, only after the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes and Class H Notes and all interest accrued thereon have been paid in full) or the payment of principal of or interest on any Class K Note (but with respect to interest, only after the Class A Notes, Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes and Class J Notes and all interest accrued thereon have been paid in full), the Co-Issuers (or, with respect to the Class H Notes and Class J Notes, the Issuer only) will, upon demand of the Trustee or any affected Rated Noteholder, pay to the Trustee, for the benefit of the Holder of such Rated Note, the whole amount, if any, then due and payable on such Rated Note for principal and interest, with interest upon the overdue principal and, to the extent that payments of such interest shall be legally enforceable, upon overdue installments of interest, at the Applicable Periodic Interest Rate and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
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compensation, expenses, disbursements and advances of the Trustee and such Rated Noteholder and their respective agents and counsel.
If either of the Co-Issuers (or, in the case of the Class H Notes, Class J Notes and Class K Notes, the Issuer only), fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may, and shall, upon the direction by the Holders of Majority of the then Aggregate Outstanding Amount of the Notes (and, if the action of the Issuer or the Co-Issuer pursuant to such direction would have a material adverse effect on the Initial Hedge Counterparty, the Initial Hedge Counterparty), prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer or the Co-Issuers, as applicable, or any other obligor upon the Rated Notes and collect the amounts adjudged or decreed to be payable in the manner provided by law out of the Collateral; provided that a Holder of a Rated Note may institute any proceeding if (i) such Holder previously has given to the Trustee written notice of an Event of Default, (ii) except in the case of a default in the payment of principal or interest, the Holders of at least 25% of the then Aggregate Outstanding Amount of the Notes have made a written request upon the Trustee to institute such proceedings in its own name as Trustee and such Holders have offered the Trustee reasonable indemnity, (iii) the Trustee has, for thirty (30) days after receipt of notice, request and offer of such indemnity, failed to institute any such proceeding and (iv) no direction inconsistent with such written request has been given to the Trustee during such 30-day period by the Holders of then Aggregate Outstanding Amount of the Notes.
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Secured Parties by such appropriate Proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Trustee by this Indenture or by law.
The Holders of a Majority of the then Aggregate Outstanding Amount of the Notes may (with the consent of the Initial Hedge Counterparty), in certain cases, waive any default with respect to such Notes, except (i) a default for more than five (5) Business Days in the payment, when due and payable, of any interest on any Note, (ii) a default in the payment of principal on any Note at its Stated Maturity Date or Redemption Date, (iii) the failure on any Payment Date to disburse amounts available in the Collection Account in accordance with Section 11.1 and continuation of such failure for a period of three (3) Business Days, (iv) certain events of bankruptcy or insolvency with respect to the Co-Issuers (or, in the case of the Class H Notes, Class J Notes and Class K Notes, the Issuer only) or (v) a default in respect of any provision of this Indenture that cannot be modified or amended without the waiver or consent of the Holder of each Outstanding Note adversely affected thereby.
In case there shall be pending Proceedings relative to the Issuer or the Co-Issuer or any other obligor upon the Rated Notes or any Hedge Agreement under the Bankruptcy Code or any other applicable bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer, the Co-Issuer or their respective property or such other obligor or its property, or in case of any other comparable Proceedings relative to the Issuer, the Co-Issuer or other obligor upon the Rated Notes or Hedge Agreement, or the creditors or property of the Issuer, the Co-Issuer or such other obligor, the Trustee, regardless of whether the principal of any Rated Notes or Hedge Agreement shall then be due and payable as therein expressed or by declaration or otherwise and regardless of whether the Trustee shall have made any demand pursuant to the provisions of this Section 5.3, shall be entitled and empowered, by intervention in such Proceedings or otherwise:
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(a) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Rated Notes or any Hedge Agreement upon direction by a Majority of the then Aggregate Outstanding Amount of the Notes, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee) and of the Rated Noteholders allowed in any Proceedings relative to the Issuer, the Co-Issuer or other obligor upon the Rated Notes or to the creditors or property of the Issuer, the Co-Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Rated Notes, upon the direction of such Holders, in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency Proceedings or person performing similar functions in comparable Proceedings; and
(c) to collect and receive any amounts or other property payable to or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Rated Noteholders and of the Trustee on behalf of the Rated Noteholders and the Trustee; and any trustee, receiver or liquidator, custodian or other similar official is hereby authorized by each of the Rated Noteholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Rated Noteholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other reasonable expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Rated Noteholder or the Initial Hedge Counterparty, any plan of reorganization, arrangement, adjustment or composition affecting the Rated Notes or the rights of any Holder thereof or the Initial Hedge Counterparty, or to authorize the Trustee to vote in respect of the claim of any Rated Noteholder or the Initial Hedge Counterparty in any such Proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
In any Proceedings brought by the Trustee on behalf of the Holders, the Trustee shall be held to represent, subject to Section 6.17, all the Secured Parties if applicable, pursuant to Section 6.17.
Notwithstanding anything in this Section 5.3 to the contrary, the Trustee may not sell or liquidate the Collateral or institute Proceedings in furtherance thereof pursuant to this Section 5.3 except in accordance with Section 5.5(a).
5.4. REMEDIES
(a) If an Event of Default shall have occurred and be continuing, and the Notes have been declared due and payable and such declaration and its consequences have not been rescinded and annulled, the Co-Issuers agree that, in addition to the requirements of Section 5.5(a), the Trustee may, after giving notice to the Noteholders, the Collateral Manager, each Hedge Counterparty and each Rating Agency, and with the consent of the Holders of a Majority of the then Aggregate Outstanding Amount of the Notes of the Controlling Class, and shall, upon written direction by the Holders of a Majority of the
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then Aggregate Outstanding Amount of the Notes of the Controlling Class, to the extent permitted by applicable law, exercise one or more of the following rights, privileges and remedies:
(1) institute Proceedings for the collection of all amounts then payable on the Notes or otherwise payable under this Indenture, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Collateral any amounts adjudged due;
(2) institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Collateral;
(3) exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Secured Parties hereunder; and
(4) subject to Section 5.4(d) below, exercise any other rights and remedies that may be available at law or in equity;
provided that the Trustee may not sell or liquidate the Collateral or institute Proceedings in furtherance thereof pursuant to this Section 5.4 except in accordance with Section 5.5(a).
The Trustee may, but need not, obtain and rely upon an opinion of an Independent investment banking firm of national reputation as to the feasibility of any action proposed to be taken in accordance with this Section 5.4 and as to the sufficiency of the proceeds and other amounts receivable with respect to the Collateral to make the required payments of principal of and interest on the Notes, which opinion shall be conclusive evidence as to such feasibility or sufficiency.
(b) If an Event of Default as described in Section 5.1(e) shall have occurred and be continuing, the Trustee may, and at the request of at least 25% of the Holders of the then Aggregate Outstanding Amount of the Notes shall, institute a Proceeding solely to compel performance of the covenant or agreement or to cure the representation or warranty, the breach of which gave rise to the Event of Default under such Section, and enforce any equitable decree or order arising from such proceeding; provided that (i) such request does not conflict with any provision in this Indenture, (ii) the Trustee determines that such action will not involve the Trustee incurring any liability (unless the Trustee is indemnified to its satisfaction against any such liability) and (iii) the Trustee may take other action deemed proper by the Trustee, that is not inconsistent with such direction.
(c) Upon any sale of the Collateral, whether made under the power of sale hereby given or by virtue of judicial proceedings, the Initial Purchaser, any Hedge Counterparty, any Noteholder or Noteholders may bid for and purchase the Collateral or any part thereof and, upon compliance with the terms of sale, may hold, retain, possess or dispose of such property in its or their own absolute right without accountability.
Upon any sale of the Collateral, whether made under the power of sale hereby given or by virtue of judicial proceedings, the receipt of the Trustee, or of the Officer making a sale under judicial proceedings, shall be a sufficient discharge to the purchaser or
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purchasers at any sale for its or their purchase price, and such purchaser or purchasers shall not be obliged to see to the application thereof.
Any such sale, whether under any power of sale hereby given or by virtue of judicial proceedings, shall bind the Co-Issuers, the Trustee and the Noteholders, shall operate to divest all right, title and interest whatsoever, either at law or in equity, of each of them in and to the property sold, and shall be a perpetual bar, both at law and in equity, against each of them and their successors and assigns, and against any and all Persons claiming through or under them.
(d) Notwithstanding any other provision of this Indenture, the Trustee may not, prior to the date which is one year and one day, or if longer the applicable preference period then in effect, after the payment in full of all Notes, institute against, or join any other Person in instituting against, the Issuer or the Co-Issuer any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or other proceedings under federal or state bankruptcy or similar laws (of any jurisdiction). Nothing in this Section 5.4 shall preclude, or be deemed to stop, the Trustee (i) from taking any action prior to the expiration of the aforementioned one year and one day period, or if longer the applicable preference period then in effect, in (A) any case or proceeding voluntarily filed or commenced by the Issuer or the Co-Issuer or (B) any involuntary insolvency proceeding filed or commenced by a Person other than the Trustee, or (ii) from commencing against the Issuer or the Co-Issuer or any of its properties any legal action which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium, liquidation or similar proceeding.
5.5. PRESERVATION OF COLLATERAL
(a) If an Event of Default shall have occurred and be continuing when any Class of Rated Notes is Outstanding, the Trustee shall retain the Collateral securing the Indenture Issued Notes and any Hedge Agreement intact, collect and cause the collection of the proceeds thereof and make all payments and deposits and maintain all accounts in respect of the Collateral, the Rated Notes and any Hedge Agreement in accordance with Section 11.1 and the provisions of Sections 10, 12 and 13 unless:
(1) the Trustee, pursuant to Section 5.5(c), determines (such determinations may be based upon a certificate from the Collateral Manager) that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting reasonable expenses relating to such sale or liquidation) would be sufficient to discharge in full the Redemption Prices then due on the Rated Notes (including the Class A-R Commitment Fees and Class A-R Breakage Costs), any amounts required to be paid under any Hedge Agreement, all unreimbursed Interest Advances together with interest thereon, all unpaid Administrative Expenses and any accrued and unpaid Senior Collateral Management Fee (to the extent not waived by the Collateral Manager) and the Holders of a Majority of the then Aggregate Outstanding Amount of Rated Notes agrees with such determination; or
(2) the Holders of at least 662/3% of the Aggregate Outstanding Amount of the Rated Notes (and, unless it will be paid in full all amounts owing to it by the Issuer, the Initial Hedge Counterparty), subject to the provisions hereof, and subject to the Trustee determining that such action will not involve the Trustee incurring any
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liability, (unless the Trustee is indemnified to its satisfaction against any such liability) direct the sale and liquidation of the Collateral.
For purposes of Section 5.5(a)(2), if the Initial Hedge Counterparty shall fail to vote to direct the sale and liquidation of the Collateral within three Business Days after written notice from the Issuer or the Trustee requesting a vote pursuant to such Section 5.5(a)(2), the Initial Hedge Counterparty shall not be entitled to participate in the vote requested by such notice. The Trustee shall give written notice of the retention of the Collateral to the Issuer with a copy to the Co-Issuer, each Holder of the Rated Notes and the Initial Hedge Counterparty. So long as such Event of Default is continuing, any such retention pursuant to this Section 5.5(a) may be rescinded at any time when the conditions specified in clause Section 5.5(a)(1) or (2) exist.
(b) Nothing contained in Section 5.5(a) shall be construed to require the Trustee to preserve the Collateral securing the Indenture Issued Notes if prohibited by applicable law.
(c) In determining whether the condition specified in Section 5.5(a)(1) exists, the Trustee shall obtain bid prices with respect to each security contained in the Collateral from two nationally recognized dealers (or if it is unable in good faith to obtain such bid prices from two nationally recognized dealers, one nationally recognized dealer), as specified by the Collateral Manager in writing, which are Independent from each other and the Collateral Manager, at the time making a market in such securities and shall compute the anticipated proceeds of sale or liquidation on the basis of the lower of such bid prices for each such security. In addition, for the purposes of determining issues relating to the execution of a sale or liquidation of the Pledged Securities and the execution of a sale or other liquidation thereof in connection with a determination whether the condition specified in Section 5.5(a)(1) exists, the Trustee may retain and rely on an opinion of an Independent investment banking firm of national reputation.
The Trustee shall deliver to the Noteholders, each Hedge Counterparty, the Rating Agencies and the Co-Issuers a report stating the results of any determination required pursuant to Section 5.5(a)(1) no later than ten (10) days after making such determination but in any event prior to the sale or liquidation of the Collateral. The Trustee shall make the determinations required by Section 5.5(a)(1) within thirty (30) days after an Event of Default and at the request of the Holders of a Majority of the then Aggregate Outstanding Amount of the Notes of the Controlling Class at any time during which the Trustee retains the Collateral pursuant to Section 5.5(a)(1). In the case of each calculation made by the Trustee pursuant to Section 5.5(a)(1), the Trustee shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Trustee and certifying their conformity to the requirements of this Indenture. In determining whether the Holders of the requisite percentage of any Class of Rated Notes or the requisite percentage of Income Noteholders have given any direction or notice or have agreed pursuant to Section 5.5(a), any Holder of a Rated Note of a Class or Income Notes who is also a Holder of Rated Notes of another Class or of Income Notes or any Affiliate of any such Holder shall be counted as a Holder of each such Rated Note and/or Income Note for all purposes.
(d) If an Event of Default shall have occurred and be continuing at a time when no Rated Note is Outstanding, the Trustee shall retain the Collateral securing the Indenture Issued Notes and any Hedge Agreement intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in
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respect of the Collateral and the Rated Notes in accordance with Section 11.1 and the provisions of Section 10 and Section 12 unless a Majority of the Income Noteholders direct the sale and liquidation of the Collateral.
(e) If an Event of Default occurs and is continuing and prior to the Mandatory Class A-R Draw Date, no Class A-R Draw may be made except with respect to Class A-R Draws to be applied to fund Future Advance Amounts related to Earn-Out Assets; provided, however, if an Event of Default specified in clauses Sections 5.1(d), (f) or (g) above occurs, the undrawn Class A-R Commitments will terminate automatically without need for further action after the Class A-R Draw on the related Mandatory Class A-R Draw Date.
(f) On the Mandatory Class A-R Draw Date, which will occur if the Notes are accelerated following an Event of Default, the Issuer (or the Collateral Manager on behalf of the Issuer) will draw on the Class A-R Notes, in an amount equal to the Aggregate Class A-R Undrawn Amount, and will deposit such amount into the Earn-Out Asset Account and/or Collection Account in accordance with Section 17.1(c). Immediately following such draw, the Class A-R Commitments will terminate. The amounts on deposit in the Earn-Out Asset Account may only be applied to fund Future Advance Amounts or on the date on which the Notes are redeemed in full, shall be transferred to the Collateral Principal Collection sub-account of the Collection Account and distributed pursuant to the Priority of Payments; provided, that to the extent that the amounts then on deposit in the Earn-Out Asset Account exceed the Total Unfunded Future Advance Amount, the Collateral Manager may direct the Trustee to transfer such excess to the Collection Account as Collateral Principal Collections in accordance with the Priority of Payments.
5.6. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
All rights of action and of asserting claims under this Indenture, or under any of the Rated Notes, may be enforced by the Trustee without the possession of any of the Hedge Agreements or the Rated Notes or the production thereof in any trial or other Proceedings relative thereto, and any action or Proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the reasonable expenses, disbursements and compensation of the Trustee, each predecessor trustee and their respective agents and attorneys and counsel, shall be for the benefit of the Secured Parties and shall be applied as set forth in Section 5.7.
5.7. APPLICATION OF FUNDS COLLECTED
Any funds collected by the Trustee with respect to any Hedge Agreement or the Rated Notes pursuant to this Section 5 and any funds that may then be held or thereafter received by the Trustee with respect to any Hedge Agreements or the Rated Notes hereunder shall be applied subject to Section 13.1 and in accordance with the provisions of Section 11.1(c), at the date or dates fixed by the Trustee.
5.8. LIMITATION ON SUITS
Only the Trustee may pursue remedies available hereunder and no Holder of any Note shall have any right to institute any Proceedings, judicial or otherwise, with respect to this Indenture, or its Note or otherwise, for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of a continuing Event of Default;
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(b) except in the case of a default in the payment of principal or interest, the Holders or Holders of at least 25% of the then Aggregate Outstanding Amount of the Rated Notes shall have made a written request to the Trustee to institute Proceedings in respect of such Event of Default in its own name as Trustee hereunder and such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(c) the Trustee for thirty (30) days after its receipt of such notice, request and offer of indemnity has failed to institute any such Proceeding; and
(d) no direction inconsistent with such written request has been given to the Trustee during such 30-day period by the Holders of a Majority of the then Aggregate Outstanding Amount of the Rated Notes;
it being understood and intended that no one or more Holders of Rated Notes shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Notes or to obtain or to seek to obtain priority or preference over any other Holders of the Notes of the same Class or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders of Notes of the same Class. In addition, any action taken by any one or more of the Holders of Notes shall be subject to and in accordance with Sections 13.1 and 11.1(d).
Notwithstanding any other provisions of this Indenture but subject to Section 5.8(d), if the Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Holders of the Rated Notes, each representing less than a Majority of the then Aggregate Outstanding Amount of Rated Notes, the Trustee shall follow the instructions of the group representing the higher percentage of aggregate principal amount of Outstanding Rated Notes.
5.9. UNCONDITIONAL RIGHTS OF RATED NOTEHOLDERS (OTHER THAN THE CLASS K NOTEHOLDERS) TO RECEIVE PRINCIPAL AND INTEREST
Notwithstanding any other provision in this Indenture (other than Section 2.6(i)), the Holder of any Indenture Issued Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest (if any) on such Indenture Issued Note as such principal and/or interest become due and payable in accordance with Sections 13.1 and 11.1(c) and, subject to the provisions of Section 5.8, to institute proceedings for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. Holders of the Class B Notes, Class C Notes, Class D Notes, Class E Notes, Class F Notes, Class G Notes, Class H Notes, Class J Notes and Class K Notes shall have no right to institute proceedings for the enforcement of any payment until such time as no Class of Rated Note that is senior to such Class of them remains Outstanding, which right shall be subject to the provisions of Section 5.8, and shall not be impaired without the consent of any such Holder.
5.10. RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Rated Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Rated Noteholder, then and in every such case the Co-Issuers, the Trustee and the Rated Noteholder shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Secured Parties shall continue as though no such Proceeding had been instituted.
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5.11. RIGHTS AND REMEDIES CUMULATIVE
No right or remedy herein conferred upon or reserved to the Trustee or to the Rated Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing by law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
5.12. DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee, any Rated Noteholder or the Initial Hedge Counterparty to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Section 5 or by law to the Trustee, the Rated Noteholders or the Initial Hedge Counterparty may be exercised from time to time, and as often as may be deemed expedient, by the Trustee, the Rated Noteholders or the Initial Hedge Counterparty, as the case may be.
5.13. CONTROL BY MAJORITY OF NOTEHOLDERS
Notwithstanding any other provision of this Indenture (but subject to the proviso in the definition of “Outstanding” in Section 1.1(a)), the Holders of a Majority of the then Aggregate Outstanding Amount of the Rated Notes shall have the right to cause the institution of and direct the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or of any sale of the Collateral, in whole or in part, provided that:
(a) such direction shall not conflict with any rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper by it that is not inconsistent with such direction; provided that, subject to Section 6.1, the Trustee need not take any action that it determines might involve it in liability (unless the Trustee has received an indemnity reasonably satisfactory to it against such liability as set forth below);
(c) the Trustee shall have been provided with an indemnity reasonably satisfactory to it; and
(d) any direction to the Trustee to undertake a Sale of the Collateral shall be made only pursuant to, and in accordance with, Sections 5.4 and 5.5.
5.14. WAIVER OF PAST DEFAULTS
The Holders of a Majority of the then Aggregate Outstanding Amount of the Notes may (with the consent of the Initial Hedge Counterparty), in certain cases waive any past Default and its consequences, except:
(a) a Default for more than five (5) Business Days in the payment, when due and payable, of any interest on any Rated Note; or
(b) a Default in the payment of principal on any Note at its Stated Maturity Date or Redemption Date; or
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(c) the failure on any Payment Date to disburse amounts available in the Collection Account in accordance with Section 11.1 and the continuation of such failure for a period of three (3) Business Days; or
(d) a Default arising under Section 5.1(f) or 5.1(g); or
(e) a Default in respect of any provision of this Indenture that under Section 8.2 cannot be modified or amended without the waiver or consent of the Holder of each Outstanding Note adversely affected thereby.
In the case of any such waiver, (i) the Co-Issuers, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto, and (ii) the Trustee shall promptly give written notice of any such waiver to the Collateral Manager, each Hedge Counterparty and each Holder of Rated Notes. The Rating Agencies shall be notified by the Issuer of any such waiver.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereto.
5.15. UNDERTAKING FOR COSTS
All parties to this Indenture agree, and each Holder of any Rated Note by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.15 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Rated Noteholder, or group of Rated Noteholders, holding in the aggregate more than 10% in Aggregate Outstanding Amount of the Rated Notes, or to any suit instituted by any Rated Noteholder for the enforcement of the payment of the principal of or interest on any Rated Note on or after the Stated Maturity Date expressed in such Rated Note (or, in the case of redemption, on or after the applicable Redemption Date).
5.16. WAIVER OF STAY OR EXTENSION LAWS
The Co-Issuers covenant (to the extent that they may lawfully do so) that they will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force (including but not limited to filing a voluntary petition under Chapter 11 of the Bankruptcy Code and by the voluntary commencement of a proceeding or the filing of a petition seeking winding up, liquidation, reorganization or other relief under any bankruptcy, insolvency, receivership or similar law now or hereafter in effect), which may affect the covenants, the performance of or any remedies under this Indenture; and the Co-Issuers (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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5.17. SALE OF COLLATERAL
(a) The power to effect any sale (a Sale) of any portion of the Collateral pursuant to Sections 5.4 and 5.5 shall not be exhausted by any one or more Sales as to any portion of such Collateral remaining unsold, but shall continue unimpaired until the entire Collateral shall have been sold or all amounts secured by the Collateral shall have been paid. The Trustee hereby expressly waives its rights to any amount fixed by law as compensation for any Sale; provided that the Trustee shall be authorized to deduct the reasonable costs, charges and expenses incurred by it in connection with such Sale from the proceeds thereof notwithstanding the provisions of Section 6.7.
(b) The Trustee may bid for and acquire any portion of the Collateral in connection with a public Sale thereof, by crediting all or part of the net proceeds of such Sale after deducting the reasonable costs, charges and expenses incurred by the Trustee in connection with such Sale notwithstanding the provisions of Section 6.7. The Rated Notes and any Hedge Agreement need not be produced in order to complete any such Sale, or in order for the net proceeds of such Sale to be credited against amounts owing on the Rated Notes. The Trustee may hold, lease, operate, manage or otherwise deal with any property so acquired in any manner permitted by law in accordance with this Indenture.
(c) If any portion of the Collateral consists of securities not registered under the Securities Act (Unregistered Securities), the Trustee may, but shall not be required to, seek an Opinion of Counsel, or, if no such Opinion of Counsel can be obtained, with the consent of a Majority of the then Aggregate Outstanding Amount of Rated Notes seek, a no-action position from the Commission or any other relevant federal or state regulatory authorities, regarding the legality of a public or private sale of such Unregistered Securities. In no event will the Trustee be required to register Unregistered Securities under the Securities Act.
(d) The Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Collateral in connection with a sale thereof. In addition, the Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey its interest in any portion of the Collateral in connection with a sale thereof, and to take all action necessary to effect such sale. No purchaser or transferee at such a sale shall be bound to ascertain the Trustee’s authority, to inquire into the satisfaction of any conditions precedent or see to the application of any funds.
5.18. ACTION ON THE RATED NOTES
The Trustee’s right to seek and recover judgment on the Rated Notes or under this Indenture shall not be affected by the seeking or obtaining of or application for any other relief under or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of the Secured Parties shall be impaired by the recovery of any judgment by the Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Collateral or upon any of the assets of the Issuer or the Co-Issuer.
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ARTICLE VI
THE TRUSTEE
6.1. CERTAIN DUTIES AND RESPONSIBILITIES
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; provided that, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they substantially conform to the requirements of this Indenture and shall promptly, but in any event within three Business Days in the case of an Officer’s certificate furnished by the Issuer, notify the party delivering the same if such certificate or opinion does not conform. If a corrected form shall not have been delivered to the Trustee within 15 days after such notice from the Trustee, the Trustee shall promptly notify the Rated Noteholders and the Hedge Counterparties.
(b) In case an Event of Default actually known to the Trustee has occurred and is continuing, the Trustee shall, prior to the receipt of directions, if any, from a Majority of the Aggregate Outstanding Amount of the Controlling Class, exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) This Section 6.1(c) shall not be construed to limit the effect of Section 6.1(a);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it shall be proven that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer or the Co-Issuer in accordance with this Indenture and/or a Majority (or such other percentage as may be required by the terms hereof) of the Aggregate Outstanding Amount of the Controlling Class (or other Class if required or permitted by the terms hereof) relating to the time, method and place of conducting any Proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
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(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers contemplated hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it (if the amount of such funds or risk or liability does not exceed the amount payable to the Trustee pursuant to Section 11.1(a)(1) net of the amounts specified in Section 6.8(a)(1), the Trustee shall be deemed to be reasonably assured of such repayment) unless such risk or liability relates to performance of its ordinary services, including under Section 5, under this Indenture; and
(5) the Trustee shall not be liable to the Rated Noteholders for any action taken or omitted by it at the direction of the Co-Issuers (in the case of the Rated Notes other than the Class H Notes, Class J Notes and Class K Notes), the Issuer (in the case of the Class H Notes, Class J Notes and Class K Notes), the Collateral Manager and/or the Holders of the Rated Notes under the circumstances in which such direction is required or permitted by the terms of this Indenture.
(d) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or knowledge of any Event of Default described in Section 5.1(d), 5.1(e), 5.1(f) or 5.1(g) unless a Trust Officer assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default or such a Default, as the case may be, is received by the Trustee at the Corporate Trust Office. For purposes of determining the Trustee’s responsibility and liability hereunder, whenever reference is made in this Indenture to such an Event of Default or such a Default, as the case may be, such reference shall be construed to refer only to such an Event of Default or such a Default, as the case may be, of which the Trustee is deemed to have notice as described in this Section 6.1(d).
(e) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.
(f) The Trustee shall, upon receipt of reasonable (but no less than three Business Days’) prior written notice, permit any representative of a Holder of a Rated Note or a Hedge Counterparty, during the Trustee’s normal business hours, to examine all books of account, records, reports and other papers of the Trustee relating to the Rated Notes, to make copies and extracts therefrom (the reasonable out-of-pocket expenses incurred in making any such copies or extracts to be reimbursed to the Trustee by such Holder) and to discuss the Trustee’s actions, as such actions relate to the Trustee’s duties with respect to the Rated Notes, with the Trustee’s officers and employees responsible for carrying out the Trustee’s duties with respect to the Rated Notes; provided that under no circumstances shall a Hedge Counterparty be permitted to review any documentation containing the names or other indicia of identity of any of the Noteholders unless any such information (including the number of shares held by such Noteholder) has been redacted from such documentation.
(g) With respect to the security interests created hereunder, the Trustee acts as a fiduciary for the Rated Noteholders only, and serves as a collateral agent for the other Secured Parties.
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6.2. NOTICE OF DEFAULT
Promptly (and in no event later than three Business Days) after the occurrence of any Default actually known to a Trust Officer of the Trustee or after acceleration has been made pursuant to Section 5.2, the Trustee shall send to the Issuer, the PAA Issued Note Paying Agent, each Rating Agency, (for so long as any Class of Rated Notes is Outstanding), the Collateral Manager, each Hedge Counterparty and to all Holders of Rated Notes, as their names and addresses appear on the Note Register, notice of all Defaults hereunder known to the Trustee, unless such Default shall have been cured or waived.
6.3. CERTAIN RIGHTS OF TRUSTEE
Except as otherwise provided in Sections 6.1 and 8:
(a) the Trustee may rely and shall be protected in acting or refraining from acting in good faith and in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer or the Co-Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order, as the case may be;
(c) whenever in the administration of this Indenture the Trustee shall (i) deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s certificate or (ii) be required to determine the value of any Collateral or funds hereunder or the cashflows projected to be received therefrom, the Trustee may, in the absence of bad faith on its part, rely on reports of nationally recognized accountants, investment bankers or other Persons qualified to provide the information required to make such determination, including nationally recognized dealers in securities of the type being valued and securities quotation services;
(d) as a condition to the taking or omitting of any action by it hereunder, the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise or to honor any of the rights or powers vested in it by this Indenture at the request or direction of any of the Rated Noteholders pursuant to this Indenture, unless such Rated Noteholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might reasonably be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note or other paper documents, but the Trustee, in its discretion, may and, upon the written direction of the Holders of a Majority of the then Aggregate Outstanding Amount of the Notes of any Class, the Initial Hedge Counterparty or any Rating Agency shall make such further inquiry or investigation into such facts or
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matters as it may see fit or as it shall be directed, and, the Trustee shall be entitled, on reasonable prior notice to the Co-Issuers, to examine the books and records of the Co-Issuers or the Collateral Manager relating to the Rated Notes and the Collateral, personally or by agent or attorney at a time acceptable to the Co-Issuers or the Collateral Manager in their reasonable judgment during normal business hours; provided that the Trustee shall, and shall cause its agents, to hold in confidence all such information, except (i) to the extent disclosure may be required by law by any regulatory authority and (ii) to the extent that the Trustee, in its sole judgment, may determine that such disclosure is consistent with its obligations hereunder;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys; provided that the Trustee shall not be responsible for any misconduct or negligence on the part of any agent (other than any Affiliate of the Trustee) appointed and supervised, or attorney appointed, with due care by it hereunder;
(h) the Trustee shall not be liable for any action it takes or omits to take in good faith that it reasonably and, after the occurrence and during the continuance of an Event of Default, prudently believes to be authorized or within its rights or powers hereunder;
(i) nothing herein shall be construed to impose an obligation on the part of the Trustee to recalculate, evaluate or verify any report, certificate or information received from the Issuer or Collateral Manager (unless and except to the extent otherwise expressly set forth herein or upon the request of the Initial Hedge Counterparty, a Rating Agency or a Majority of the then Aggregate Outstanding Amount of the Rated Notes);
(j) the Trustee shall not be responsible or liable for the actions or omissions of, or any inaccuracies in the records of, any non-Affiliated custodian, clearing agency, common depository, Euroclear or Clearstream or for the acts or omissions of the Collateral Manager or either Co-Issuer;
(k) to the extent any defined term hereunder, or any calculation required to be made or determined by the Trustee hereunder, is dependent upon or defined by reference to generally accepted accounting principles in the United States (GAAP), the Trustee shall be entitled to request and receive (and rely upon) instruction from the Issuer or the accountants appointed pursuant to 10.14 as to the application of GAAP in such connection, in any instance;
(l) to the extent permitted by law, the Trustee shall not be required to give any bond or surety in respect of the execution of this Indenture or otherwise; and
(m) the permissive right of the Trustee to take or refrain from taking any actions enumerated in this Indenture shall not be construed as a duty.
(n) The Trustee shall be entitled to conclusively rely upon the Collateral Manager’s determination that the representations and warranties provided in connection with the acquisition of a Mezzanine Loan, a Subordinate Mortgage Loan Interest, a Credit Lease Loan, a Tenant Lease Loan Interest, a Participation Interest or a Commercial Mortgage Loan comply with the requirements of Sections 12.2(u) and (v).
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6.4. AUTHENTICATING AGENTS
If the Trustee so chooses the Trustee may appoint one or more Authenticating Agents with power to act on its behalf and subject to its direction in the authentication of Indenture Issued Notes in connection with issuance, transfers and exchanges under Sections 2.4, 2.5 and 8.5, as fully to all intents and purposes as though each such Authenticating Agent had been expressly authorized by those Sections to authenticate such Indenture Issued Notes. For all purposes of this Indenture, the authentication of Indenture Issued Notes by an Authenticating Agent pursuant to this Section 6.4 shall be deemed to be the authentication of Indenture Issued Notes “by the Trustee.”
Any entity into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any entity succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, without the execution or filing of any further act on the part of the parties hereto or such Authenticating Agent or such successor entity.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and the Issuer. The Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and the Co-Issuers. Upon receiving such notice of resignation or upon such a termination, the Trustee shall promptly appoint a successor Authenticating Agent and shall give written notice of such appointment to the Co-Issuers.
The Issuer agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services (provided, however, that, so long as an Authenticating Agent is the Trustee, or an Affiliate thereof, such compensation shall be payable by the Trustee, rather than by the Issuer), and reimbursement for its reasonable expenses relating thereto and the Trustee shall be entitled to be reimbursed for such payments, subject to Section 6.8. The provisions of Sections 2.8, 6.5 and 6.6 shall be applicable to any Authenticating Agent.
6.5. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF RATED NOTES
The recitals contained herein and in the Rated Notes, other than the Certificate of Authentication thereon, shall be taken as the statements of the Co-Issuers (with respect to the Rated Notes other than the Class H Notes, Class J Notes and Class K Notes) and the Issuer (with respect to the Class H Notes, Class J Notes and Class K Notes), and the Trustee assumes no responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Indenture (except as may be made with respect to the validity of the Trustee’s obligations hereunder), of the Collateral or of the Rated Notes. The Trustee shall not be accountable for the use or application by the Co-Issuers of the Rated Notes (other than the Class H Notes, Class J Notes or the Class K Notes), by the Issuer of the Class H Notes, Class J Notes or the Class K Notes or the proceeds thereof or any amounts paid to either of the Co-Issuers pursuant to the provisions hereof.
6.6. MAY HOLD RATED NOTES
The Trustee, any Note Paying Agent, the Note Registrar or any other agent of the Co-Issuers, in its individual or any other capacity, may become the owner or pledgee of Rated Notes and, may otherwise deal with the Co-Issuers or any of their Affiliates, with the same rights it would have if it were not Trustee, Note Paying Agent, Note Registrar or such other agent.
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6.7. FUNDS HELD IN TRUST
Funds held by the Trustee hereunder shall be held in trust to the extent required herein. The Trustee shall be under no liability for interest on any funds received by it hereunder except as otherwise agreed upon with the Issuer and except to the extent of income or other gain on investments which are deposits in or certificates of deposit of the Trustee in its commercial capacity and income or other gain actually received by the Trustee on Eligible Investments.
6.8. COMPENSATION AND REIMBURSEMENT
(a) The Issuer agrees:
(1) to pay the Trustee on each Payment Date the Trustee Fee, the PAA Issued Note Paying Agent Fee and reasonable compensation for all other services, including custodial services, rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee (subject to any written agreement between the Issuer and the Trustee) in a timely manner upon its request