Exhibit 4.1

 

EXECUTION COPY

 

FIFTH AMENDED AND RESTATED MASTER INDENTURE

 

DATED AS OF OCTOBER 18, 2016

 

 

AMONG

 

STORE MASTER FUNDING I, LLC,

 

AS AN ISSUER,

 

STORE MASTER FUNDING II, LLC,

 

AS AN ISSUER,

 

STORE MASTER FUNDING III, LLC,

 

AS AN ISSUER,

 

STORE MASTER FUNDING IV, LLC,

 

AS AN ISSUER,

 

STORE MASTER FUNDING V, LLC,

 

AS AN ISSUER,

 

STORE MASTER FUNDING VI, LLC,

 

AS AN ISSUER,

 

STORE MASTER FUNDING VII, LLC,

 

AS AN ISSUER,

 

AND

 

CITIBANK, N.A.,

 

AS INDENTURE TRUSTEE

 

NET-LEASE MORTGAGE NOTES

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION		3
Section 1.01	Definitions	3
Section 1.02	Rules of Construction	26
ARTICLE II THE NOTES		27
Section 2.01	Forms; Denominations	27
Section 2.02	Execution, Authentication, Delivery and Dating	28
Section 2.03	Reserved	29
Section 2.04	The Notes Generally; New Issuances	29
Section 2.05	Registration of Transfer and Exchange of Notes	32
Section 2.06	Book-Entry Notes	39
Section 2.07	Mutilated, Destroyed, Lost or Stolen Notes	41
Section 2.08	Noteholder Lists	42
Section 2.09	Persons Deemed Owners	42
Section 2.10	Payment Account	42
Section 2.11	Payments on the Notes	43
Section 2.12	Final Payment Notice	47
Section 2.13	Compliance with Withholding Requirements	47
Section 2.14	Cancellation	47
Section 2.15	Reserved	47
Section 2.16	The Hedge Agreements	47
Section 2.17	Tax Treatment of the Notes	49
Section 2.18	DSCR Reserve Account	49
Section 2.19	Representations and Warranties with Respect to the Issuers	50
Section 2.20	Representations and Warranties With Respect To Properties and Leases	54
Section 2.21	Representations and Warranties With Respect To Mortgage Loans and Loan Components of Hybrid Leases	61
Section 2.22	Representations and Warranties With Respect to Hybrid Leases	73
ARTICLE III SATISFACTION AND DISCHARGE		75
Section 3.01	Satisfaction and Discharge of Indenture	75
Section 3.02	Application of Trust Money	76
ARTICLE IV EVENTS OF DEFAULT; REMEDIES		76
Section 4.01	Events of Default	76
Section 4.02	Acceleration of Maturity; Rescission and Annulment	78
Section 4.03	Collection of Indebtedness and Suits for Enforcement by Indenture Trustee	79
Section 4.04	Remedies	81
Section 4.05	Application of Money Collected	82
Section 4.06	Limitation on Suits	82

 

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Section 4.07	Unconditional Right of Noteholders to Receive Principal and Interest	82
Section 4.08	Restoration of Rights and Remedies	83
Section 4.09	Rights and Remedies Cumulative	83
Section 4.10	Delay or Omission Not Waiver	83
Section 4.11	Control by Requisite Global Majority	83
Section 4.12	Waiver of Past Defaults	84
Section 4.13	Undertaking for Costs	84
Section 4.14	Waiver of Stay or Extension Laws	85
Section 4.15	Sale of Collateral	85
Section 4.16	Action on Notes	86
ARTICLE V THE INDENTURE TRUSTEE		86
Section 5.01	Certain Duties and Responsibilities	86
Section 5.02	Notice of Defaults	90
Section 5.03	Certain Rights of Indenture Trustee	90
Section 5.04	Compensation; Reimbursement; Indemnification	92
Section 5.05	Corporate Indenture Trustee Required; Eligibility	94
Section 5.06	Authorization of Indenture Trustee	95
Section 5.07	Merger, Conversion, Consolidation or Succession to Business	95
Section 5.08	Resignation and Removal; Appointment of Successor	95
Section 5.09	Acceptance of Appointment by Successor	96
Section 5.10	Unclaimed Funds	97
Section 5.11	Illegal Acts	97
Section 5.12	Communications by the Indenture Trustee	98
Section 5.13	Separate Indenture Trustees and Co-Trustees	98
Section 5.14	Communications with the Rating Agency	99
ARTICLE VI REPORTS TO NOTEHOLDERS		100
Section 6.01	Reports to Noteholders and Others	100
Section 6.02	Certain Communications with the Rating Agencies	101
Section 6.03	Access to Certain Information	101
ARTICLE VII REDEMPTION; SERIES ENHANCEMENT		103
Section 7.01	Redemption of the Notes	103
Section 7.02	Series Enhancement	103
ARTICLE VIII SUPPLEMENTAL INDENTURES; AMENDMENTS		104
Section 8.01	Supplemental Indentures or Amendments Without Consent of Noteholders	104
Section 8.02	Supplemental Indentures With Consent	105
Section 8.03	Delivery of Supplements and Amendments	107
Section 8.04	Series Supplements	107
Section 8.05	Execution of Supplemental Indentures, Etc.	108

 

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ARTICLE IX COVENANTS; WARRANTIES		108
Section 9.01	Maintenance of Office or Agency	108
Section 9.02	Existence and Good Standing	108
Section 9.03	Payment of Taxes and Other Claims	109
Section 9.04	Validity of the Notes; Title to the Collateral; Lien	110
Section 9.05	Protection of Collateral Pool	111
Section 9.06	Covenants	112
Section 9.07	Statement as to Compliance	115
Section 9.08	Issuers May Consolidate, Etc., Only on Certain Terms	115
Section 9.09	Litigation	117
Section 9.10	Notice of Default	117
Section 9.11	Cooperate in Legal Proceedings	117
Section 9.12	Insurance Benefits	117
Section 9.13	Costs of Enforcement	117
Section 9.14	Performance of Issuers’ Duties by the Related Issuer Member	117
Section 9.15	Further Acts, etc.	117
Section 9.16	Recording of Mortgages, etc.	118
Section 9.17	Treatment of the Notes as Debt for Tax Purposes	118
Section 9.18	Payment of Debts	118
Section 9.19	Single-Purpose Status	119
Section 9.20	Separateness of Each Issuer	119
Section 9.21	Capitalization of the Issuers	119
Section 9.22	Maintenance of Assets	119
Section 9.23	Compliance with Representations and Warranties	119
Section 9.24	Independent Directors	119
Section 9.25	Employees	121
Section 9.26	Assumptions in Insolvency Opinion	121
Section 9.27	Performance by the Issuers	121
Section 9.28	Use of Proceeds	121
Section 9.29	Other Rights, etc.	121
Section 9.30	Books and Records	121
Section 9.31	Overhead Expenses	122
Section 9.32	Embargoed Persons	122
ARTICLE X COVENANTS REGARDING PROPERTIES		122
Section 10.01	General	122
Section 10.02	Insurance	122
Section 10.03	Mortgage Loans, Leases and Rents	122
Section 10.04	Compliance With Laws	123
Section 10.05	Estoppel Certificates	123
Section 10.06	Other Rights, Etc.	123
Section 10.07	Right to Release Any Portion of the Collateral Pool	124
Section 10.08	Environmental Covenants	124
Section 10.09	Handicapped Access	125
Section 10.10	Preservation of Title	125
Section 10.11	Maintenance and Use of Properties	125

 

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Section 10.12	Access to Properties	125
ARTICLE XI COSTS		126
Section 11.01	Performance at the Issuers’ Expense	126
ARTICLE XII MISCELLANEOUS		126
Section 12.01	Execution Counterparts	126
Section 12.02	Compliance Certificates and Opinions, Etc.	126
Section 12.03	Form of Documents Delivered to Indenture Trustee	126
Section 12.04	No Oral Change	127
Section 12.05	Acts of Noteholders	128
Section 12.06	Computation of Percentage of Noteholders	128
Section 12.07	Notice to the Indenture Trustee, the Issuers and Certain Other Persons	128
Section 12.08	Notices to Noteholders; Notification Requirements and Waiver	129
Section 12.09	Successors and Assigns	129
Section 12.10	Interest Charges; Waivers	129
Section 12.11	Severability Clause	130
Section 12.12	Governing Law	130
Section 12.13	Effect of Headings and Table of Contents	130
Section 12.14	Benefits of Indenture	130
Section 12.15	Trust Obligation	131
Section 12.16	Inspection	131
Section 12.17	Method of Payment	131
Section 12.18	Limitation on Liability of the Issuers and Issuer Member	131
Section 12.19	Acquisition of Post-Closing Properties and the Post-Closing Acquisition Reserve Account	132
Section 12.20	Addition of Properties to Master Leases	133

 

Exhibits

 

Exhibit A-1	Form of Restricted Global Net-Lease Mortgage Note
Exhibit A-2	Form of Regulation S Global Net-Lease Mortgage Note
Exhibit A-3	Form of Definitive Net-Lease Mortgage Note
Exhibit B	Form of Trustee Report
Exhibit C-1	Form of Transferor Certificate for Transfers of Definitive Notes
Exhibit C-2	Form of Transferee Certificate for Transfers of Definitive Notes
Exhibit D-1	Form of Transfer Certificate for Transfers From Regulation S Global Note or Definitive Note to Restricted Global Note
Exhibit D-2	Form of Transfer Certificate for Transfer from Restricted Global Note or Definitive Note to Regulation S Global Note During the Restricted Period
Exhibit D-3	Form of Transfer Certificate for Transfer from Restricted Global Note or Definitive Note to Regulation S Global Note After the Restricted Period

 

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Exhibit D-4	Form of Regulation S Letter for Exchange of Interests in the Temporary Regulation S Global Note for Interests in the Permanent Regulation S Global Note
Exhibit E-1	Form of Certificate with Respect to Information Request by Beneficial Owner
Exhibit E-2	Form of Certificate with Respect to Information Request by Prospective Purchaser
Exhibit F	Form of Noteholder Confidentiality Agreement
Exhibit G-1	Form of Officer’s Certificate of the Issuers with respect to Post-Closing Properties and Additional Master Lease Properties
Exhibit G-2	Form of Officer’s Certificate of STORE Capital with respect to Post-Closing Properties and Additional Master Lease Properties
Exhibit G-3	Form of Officer’s Certificate of Counsel to the Issuers with respect to Post-Closing Properties and Additional Master Lease Properties
Exhibit G-4	Form of Post-Closing Acquisition Notice

 

v

 

FIFTH AMENDED AND RESTATED MASTER INDENTURE, dated as of October 18, 2016 (as amended, modified or supplemented from time to time as permitted hereby, the “ Indenture ”), between STORE Master Funding I, LLC, a Delaware limited liability company, as an issuer (“ STORE Master Funding I ”), STORE Master Funding II, LLC, a Delaware limited liability company, as an issuer (“ STORE Master Funding II ”), STORE Master Funding III, LLC, a Delaware limited liability company, as an issuer (“ STORE Master Funding III ”), STORE Master Funding IV, LLC, a Delaware limited liability company, as an issuer (“ STORE Master Funding IV ”), STORE Master Funding V, LLC, a Delaware limited liability company, as an issuer (“ STORE Master Funding V ”), STORE Master Funding VI, LLC, a Delaware limited liability company, as an issuer (“ STORE Master Funding VI ”), STORE Master Funding VII, LLC, a Delaware limited liability company, as an issuer (“ STORE Master Funding VII ” and together with STORE Master Funding I, STORE Master Funding II, STORE Master Funding III, STORE Master Funding IV, STORE Master Funding V and STORE Master Funding VI, the “ Issuers ”) and Citibank, N.A., a national banking association duly organized and existing under the laws of the United States of America, not in its individual capacity, but solely as Indenture Trustee (the “ Indenture Trustee ”) under this Indenture.

 

PRELIMINARY STATEMENT

 

WHEREAS, the Issuers and the Indenture Trustee entered into a master indenture (the “ Original Master Indenture ”), dated as of August 23, 2012;

 

WHEREAS, the Issuers and the Indenture Trustee entered into an amended and restated master indenture (the “ Amended and Restated Master Indenture ”), dated as of March 27, 2013 which amended and restated in its entirety the Original Master Indenture;

 

WHEREAS, the Issuers and the Indenture Trustee entered into a second amended and restated master indenture (the “ Second Amended and Restated Master Indenture ” and, together with the Original Master Indenture and the Amended and Restated Master Indenture, the “ Prior Master Indenture ”), dated as of December 3, 2013, which amended and restated in its entirety the Amended and Restated Master Indenture;

 

WHEREAS, the Issuers and the Indenture Trustee entered into a third amended and restated master indenture (the “ Third Amended and Restated Master Indenture ”), dated as of May 6, 2014, which amended and restated in its entirety the Second Amended and Restated Master Indenture;

 

WHEREAS, the Issuers and the Indenture Trustee entered into a fourth amended and restated master indenture (the “ Fourth Amended and Restated Master Indenture ” and, together with the Original Master Indenture, the Amended and Restated Master Indenture, the Second Amended and Restated Master Indenture and the Third Amended and Restated Master Indenture, the “ Prior Master Indenture ”), dated as of April 16, 2015, which amended and restated in its entirety the Third Amended and Restated Master Indenture;

 

WHEREAS, pursuant to Section 8.01 of the Prior Master Indenture, the Issuers and the Indenture Trustee may enter into one or more amendments to the Prior Master Indenture;

 

 

WHEREAS, the Issuers and the Indenture Trustee hereby consent to the amendments to the Prior Master Indenture set forth herein;

 

WHEREAS, the Issuers and the Indenture Trustee hereby agree that pursuant to this Indenture the Prior Master Indenture continues in full force and effect as amended hereby and except with respect to the terms that have been amended pursuant to this Indenture, all obligations of the Issuers and the Indenture Trustee under the Prior Master Indenture will remain outstanding and continue in full force and effect, unpaid, unimpaired and undischarged, and all liens created under the Prior Master Indenture will continue in full force and effect, unimpaired and undischarged, having the same perfection and priority for payment and performance of the obligations of the Issuers and the Indenture Trustee as were in place under the Prior Master Indenture;

 

WHEREAS, the Issuers have duly authorized the execution and delivery of this Indenture to provide for the issuance of their respective series of Net-Lease Mortgage Notes (collectively, the “ Notes ”), to be issued pursuant to this Indenture, and the Notes issuable under this Indenture shall be issued in series (each, a “ Series ”), as from time to time may be created by supplements (each, a “ Series Supplement ”) to this Indenture;

 

WHEREAS, in connection with each Series of Notes issued under this Indenture, the applicable Issuers may enter into a Series Enhancement (as defined herein) that will provide credit enhancement or other protection for the Holders of a Series of Notes and the applicable Issuers will incur obligations under the terms of such Series Enhancements;

 

NOW THEREFORE, all things necessary to make the Notes, when the Notes are executed by the applicable Issuers and authenticated and delivered by the Indenture Trustee hereunder and duly issued by such Issuers, the valid and legally binding obligations of such Issuers enforceable in accordance with their terms, and to make this Indenture a valid and legally binding agreement of such Issuers enforceable in accordance with its terms, have been done.

 

GRANTING CLAUSE

 

Each of the Issuers hereby Grants to the Indenture Trustee on the applicable Series Closing Date, for the benefit of the Indenture Trustee and the Noteholders, all of such Issuer’s right, title and interest in and to all of such Issuer’s “accounts,” “deposit accounts,” “chattel paper,” “payment intangibles,” “commercial tort claims,” “supporting obligations,” “promissory notes,” “letter-of-credit rights,” “documents,” “goods,” “fixtures,” “general intangibles,” “instruments,” “inventory,” “equipment,” “investment property,” “proceeds” (as each of the foregoing terms is defined in the UCC), rights, interests and property (whether now owned or hereafter acquired or arising) (individually, the “ Collateral ” and, collectively, the “ Collateral Pool ”), including the following: (i) fee title to, and, if applicable, ground lease interests in ground leases to, such Issuer’s Properties, (ii) each of the Leases with respect to such Properties and all payments required thereunder on and after the applicable Series Closing Date or Transfer Date, as applicable, (iii) the Mortgage Loans and all payments required thereunder on and after the applicable Series Closing Date or Transfer Date, (iv) all of such Issuer’s right, title and

 

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interest in all fixtures and reserves and escrows, if any, related to such Issuer’s Properties, (v) any guarantees of and security for the Tenants’ obligations under the Leases, including any security deposits thereunder, (vi) all of such Issuer’s rights under the applicable Guaranties, (vii) all of such Issuer’s rights (but none of its obligations) under the Purchase and Sale Agreements and the Collateral Agency Agreement, (viii) the Collection Account, the Release Account, the Lockbox Transfer Account, the DSCR Reserve Account, the Post-Closing Acquisition Reserve Account, the Payment Account and any other accounts established under the Transaction Documents for purposes of receiving, retaining and distributing amounts received in respect of the Collateral Pool and making payments to the Holders of the Notes and making distributions to the Holders of the Issuer Interests, and all funds and Permitted Investments as may from time to time be deposited therein, (ix) all of such Issuer’s right, title and interest in and to a Series Enhancement, if any, (x) all present and future claims, demands and causes of action in respect of the foregoing, and (xi) all proceeds of the foregoing of every kind and nature whatsoever, including, without limitation, all proceeds of the conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of the foregoing.

 

The foregoing Grants are made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture and each Series Supplement.

 

GENERAL COVENANT

 

IT IS HEREBY COVENANTED AND DECLARED that the Notes are to be authenticated and delivered by the Indenture Trustee on the applicable Series Closing Dates (as defined herein), that the Collateral is to be held by or on behalf of the Indenture Trustee and that moneys in or from the Collateral Pool are to be applied by the Indenture Trustee for the benefit of the Noteholders, subject to the further covenants, conditions and trusts hereinafter set forth, and each Issuer does hereby represent and warrant, and covenant and agree, to and with the Indenture Trustee, for the equal and proportionate benefit and security of each Noteholder, as follows:

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION

 

Section 1.01                             Definitions .

 

Whenever used in this Indenture, including in the Preliminary Statement, the Granting Clause and the General Covenant hereinabove set forth, the following words and phrases, unless the context otherwise requires, shall have the meanings specified in this Section 1.01 or, if not specified in this Section 1.01 , then in the Property Management Agreement.

 

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“ 3-Month Average DSCR ”:  With respect to any Determination Date, the average of the Monthly DSCRs for such Determination Date and the two immediately preceding Determination Dates.

 

“ 1939 Act ”:  The Trust Indenture Act of 1939, as amended, and the rules, regulations and published interpretations of the SEC promulgated thereunder from time to time.

 

“ 1940 Act ”:  The Investment Company Act of 1940, as amended, and the rules, regulations and published interpretations of the SEC promulgated thereunder from time to time.

 

“ Account Control Agreement ”: An agreement with respect to a deposit account or a securities account, in form and substance satisfactory to the Indenture Trustee, pursuant to which the institution at which such account is maintained agrees to follow the instructions or entitlement orders, as the case may be, of the Indenture Trustee or, in certain instances, the Property Manager with respect thereto.

 

“ Accredited Investor ”: As defined in Section 2.01(b).

 

“ Accrual Period ”:  With respect to any Class of Notes, as defined in the applicable Series Supplement.

 

“ Act ”:  As defined in Section 12.05 .

 

“ Additional Master Lease Property ”:  A Property that may be added to an existing Master Lease in the Collateral Pool on any Business Day that is not an Issuance Date, subject to satisfaction of the Master Lease Conditions.

 

“ Advance ”:  As defined in the Property Management Agreement.

 

“ Affiliate ”:  With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“ Aggregate Allocated Loan Amount ”: The Aggregate Series Principal Balance.

 

“ Aggregate Collateral Value of Post-Closing Properties ”: The “Aggregate Collateral Value of Post-Closing Properties” specified in the most recently executed Series Supplement.

 

“ Aggregate Series Principal Balance ”:  On any date of determination, the sum of all Series Principal Balances, in each case, as of such date of determination, after giving effect to any payments of principal on such date.

 

“ Amended and Restated Master Indenture ”: As defined in the Preliminary Statement.

 

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“ Anticipated Repayment Date ” For any Series of Notes, the Anticipated Repayment Date for such Series of Notes, as specified in the related Series Supplement.

 

“ Applicable Laws ”:  As defined in Section 10.04(a).

 

“ Applicable Paydown Percentage ”: With respect to any Series of Notes and as of any applicable Payment Date upon which Unscheduled Proceeds are paid pursuant to Section 2.11(b) and/or upon which a Voluntary Prepayment in part is made, a fraction expressed as a percentage, the numerator of which is the related Series Principal Balance subject to paydown and the denominator of which is the Aggregate Series Principal Balance before giving effect to any payment on such Payment Date.

 

“ Appraised Value ”:  As defined in the Property Management Agreement.

 

“ Asbestos ”: Asbestos or any substance or material containing asbestos.

 

“ Authenticating Agent ”:  As defined in Section 2.02(b).

 

“ Authorized Officer ”:  With respect to each Issuer, any person who is authorized to act for such Issuer and who is identified on the list delivered by such Issuer to the Indenture Trustee on the applicable Series Closing Date (as such list may be modified or supplemented from time to time thereafter).

 

“ Authorized Persons ”: As defined in Section 5.03(r).

 

“ Available Amount ”:  As defined in the Property Management Agreement.

 

“ Back - Up Fee ”: As defined in the Property Management Agreement.

 

“ Back-Up Manager ”:  Midland Loan Services, a division of PNC Bank, National Association, or its successor in interest.

 

“ Book-Entry Custodian ”:  Initially, the Indenture Trustee and thereafter, such other bank or trust company as the Indenture Trustee shall appoint pursuant to Section 2.06(a) .

 

“ Book-Entry Note ”:  Any Note registered in the name of the Depository or its nominee.

 

“ Borrower ”: As defined in the Property Management Agreement.

 

“ Business Day ”:  Any day other than a Saturday, a Sunday or a day on which banking institutions are authorized or obligated by law or executive order to remain closed in New York, New York, Scottsdale, Arizona, or any other city in which the principal office of the Issuer, the primary servicing office of the Property Manager or the Special Servicer or the Indenture Trustee’s Office is located.

 

“ Cash ”:  Coin or currency of the United States or immediately available federal funds, including such funds delivered by wire transfer.

 

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“ CERCLA ”: The Comprehensive Environmental Response, Compensation and Liability Act, as amended.

 

“ Class ”:  Collectively, all of the Notes of a particular Series that bear the same name and the same alphabetical and, if applicable, numerical class designations.

 

“ Code ”:  The Internal Revenue Code of 1986, as amended.

 

“ Collateral ”:  As defined in the Granting Clause hereto.

 

“ Collateral Agency Agreement ”: The Amended and Restated Collateral Agency Agreement dated as of September 19, 2011, among the Collateral Agent, STORE Capital, STORE SPE Warehouse Funding, LLC, any other party that becomes a “Joining Party Lender” thereto (as such term is defined in therein), STORE Master Funding I, LLC, and any other Issuer that becomes a “Joining Party Issuer” thereto (as such term is defined in therein).

 

“ Collateral Agent ”:  Citibank, N.A., a national banking association, in its capacity as collateral agent under this Indenture and the Collateral Agency Agreement, or its successor in interest, or any successor collateral agent appointed as provided in this Indenture and the Collateral Agency Agreement.

 

“ Collateral Defect ”:  As defined in the Property Management Agreement.

 

“ Collateral Pool ”:  As defined in the Granting Clause hereto.

 

“ Collateral Pool Expenses ”:  As defined in Section 2.11(b).

 

“ Collateral Transfer ”:  Any voluntary or involuntary sale, transfer, exchange, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, grant of any options with respect to, or any other transfer or disposition of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record), including but not limited to:  (i) an installments sales agreement wherein an Issuer agrees to sell a related Mortgage Loan or Property or any part thereof for a price to be paid in installments or (ii) an agreement by an Issuer leasing all or a substantial part of a related Property for other than actual occupancy by a Tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, such Issuer’s right, title and interest in and to any Mortgagee Loans, Leases or any rents.

 

“ Collection Account ”:  As defined in the Property Management Agreement.

 

“ Collection Period ”:  As defined in the Property Management Agreement.

 

“ Condemnation Proceeds ”: As defined in the Property Management Agreement.

 

“ Control Person ”:  With respect to any Person, any other Person that constitutes a “controlling person” within the meaning of Section 15 of the Securities Act.

 

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“ Controlling Party ”:  With respect to any Series, as defined in the applicable Series Supplement.

 

“ Custodian ”: U.S. Bank National Association or its successor in interest.

 

“ Custody Agreement ”: As defined in the Property Management Agreement.

 

“ Deferred Post-ARD Additional Interest ”:  With respect to any Payment Date and any Series of Notes, applicable accrued and unpaid Post-ARD Additional Interest from any prior Payment Date.  For the avoidance of doubt, Deferred Post-ARD Additional Interest will not bear interest.

 

“ Definitive Note ”:  As defined in Section 2.01(b).

 

“ Department of Labor Regulations ”:  Regulations at 29 C.F.R. 2510.3-101.

 

“ Depository ”:  The Depository Trust Company or any successor depository hereafter named as contemplated by Section 2.06 .  The nominee of the initial Depository, for purposes of registering such Notes that are Book-Entry Notes, is Cede & Co.  The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(4) of the Uniform Commercial Code of the State of New York and a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended.

 

“ Depository Participant ”:  A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.

 

“ Determination Date ”:  With respect to any Payment Date, the 7th day of the month in which such Payment Date occurs or, if such 7th day is not a Business Day, the Business Day immediately succeeding such 7th day.

 

“ Disposition Period ” :  If any Series Principal Balance is greater than zero on its related Series Disposition Period Date, a period commencing on such Series Disposition Period Date and ending on the earlier of (i) the date upon which the Series Principal Balance is reduced to zero and (ii) the Rated Final Payment Date for such Series.

 

“ DSCR Reserve Account ”:  The segregated trust account established by and in the name of the Indenture Trustee pursuant to Section 2.18 hereof.

 

“ DSCR Sweep Period ”:  A period that shall commence on any Determination Date for which the Monthly DSCR is less than or equal to 1.30 and an Early Amortization Period has not otherwise commenced or is not otherwise in effect, and shall continue until the Monthly DSCR is greater than 1.30 for three (3) consecutive Determination Dates.

 

“ Early Amortization Period ”:  An Early Amortization Period will commence as of any Determination Date: (A) if the 3-Month Average DSCR as of such Determination Date is less than or equal to 1.20; provided , however , that such Early Amortization Period under this clause (A) shall continue until the 3-Month Average DSCR is greater than 1.20 for three (3)

 

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consecutive Determination Dates; (B) if an Event of Default, after giving effect to any grace period, shall have occurred and shall not have been cured or waived in accordance with the terms hereof;  or (C) upon the occurrence of any other event upon which an Early Amortization Period shall have commenced, as specified in any Series Supplement.

 

“ Eligible Account ”:  Any of (i) a segregated account maintained with a federal- or state-chartered depository institution or trust company, the long-term deposit or long-term unsecured debt obligations of which (or of such institution’s parent holding company) are rated “A-” or better by S&P, if the deposits are to be held in the account for more than 30 days, or the short-term deposit or short-term unsecured debt obligations of which (or of such institution’s parent holding company) are rated “A-1” by S&P if the deposits are to be held in the account for 30 days or less, in any event at any time funds are on deposit therein, (ii) a segregated trust account maintained with a federal- or state-chartered depository institution or trust company acting in its fiduciary capacity, which, in the case of a state-chartered depository institution or trust company is subject to regulations regarding fiduciary funds on deposit therein substantially similar to 12 C.F.R. § 9.10(b), and which, in either case, has a combined capital and surplus of at least $50,000,000 and is subject to supervision or examination by federal or state authority, or (iii) any other account that is acceptable to the Rating Agencies (as evidenced by written confirmation from such Rating Agencies); provided, that in the event that any of the accounts no longer qualifies as an Eligible Account under this definition, the Issuers shall promptly, and in no event later than thirty (30) calendar days following such account failing to qualify as an Eligible Account, direct the Indenture Trustee to remit all funds in such account to a specified Eligible Account.  Eligible Accounts may bear interest.

 

“ Embargoed Person ”:  As defined in Section 2.19(u).

 

“ Environmental Laws ”:  As defined in Section 10.08.

 

“ ERISA ”:  The Employee Retirement Income Security Act of 1974, as amended.

 

“ Event of Default ”:  As defined in Section 4.01.

 

“ Extraordinary Expense Cap ”:  (A) With respect to the Extraordinary Expenses paid and payable each calendar year, an amount equal to the greater of (i) $250,000 per Series per calendar year and (ii) 0.07% of the Aggregate Series Principal Balance (as of the most recent Series Closing Date and each anniversary thereof) per year and 1/12 of such amount per month (such amount as set forth on clause (i) or (ii) above to be cumulative for each month in a calendar year if not used, although any such cumulative amount not to be carried forward into the next calendar year) and (B) with respect to the aggregate Extraordinary Expenses paid and payable pursuant to this Indenture since the Initial Closing Date, an amount equal to $7,500,000.

 

“ Extraordinary Expenses ”:  Unanticipated expenses required to be borne by the applicable Issuers, that consist of, among other things: (i) amounts incurred in connection with the transfer of the Loan Files, Lease Files and other administrative expenses related to the sale or transfer of the related Mortgage Loans and Properties by such Issuers; (ii) payments to the Property Manager, the Special Servicer, any applicable Hedge Counterparty, any Issuers, the Indenture Trustee, the Collateral Agent or any of their respective directors, officers, employees,

 

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agents and Control Persons of amounts for certain expenses and liabilities as specified in this Indenture (including, but not limited to, Section 5.04(a)(2) ), the Notes, the Property Management Agreement, the applicable Limited Liability Company Agreements or any other agreement related thereto; (iii) payments for the advice of counsel and the cost of certain Opinions of Counsel; (iv) costs and expenses incurred in connection with environmental remediation with respect to any Property; and (v) certain indemnities that STORE Capital is obligated to pay but fails to pay under any Guaranty.

 

“ FDIC ”:  Federal Deposit Insurance Corporation or any successor.

 

“ Final Payment Date ”:  With respect to any Class of Notes, the Payment Date on which the final payment on such Notes is made hereunder by reason of all principal, interest and other amounts due and payable on such Notes having been paid.

 

“ Foreclosure Proceeding ”:  Any proceeding, non-judicial sale or power of sale or other proceeding (judicial or non-judicial) for the foreclosure, sale or assignment of any Mortgage Loan, Property or Lease or any other Collateral under any Mortgage.

 

“ Governmental Authority ”: means any (i) federal, state, local, municipal, foreign or other government, (ii) governmental or quasi governmental entity of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal), whether foreign or domestic, or (iii) body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature, whether foreign or domestic, including any arbitral tribunal.

 

“ Grant ”:  To mortgage, pledge, bargain, sell, warrant, alienate, demise, convey, assign, transfer, create and grant a security interest in and right of set-off against, deposit, set over and confirm.  A Grant of Collateral shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including, without limitation, the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of such Collateral and all other moneys and proceeds 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 which the granting party is or may be entitled to do or receive thereunder or with respect thereto.

 

“ Guaranty ”:  With respect to each Series of Notes, as defined in the related Series Supplement.

 

“ Hazardous Substances ”:  As defined in the Property Management Agreement.

 

“ Hedge Agreement ”:  With respect to any Series, as defined in the applicable Series Supplement.

 

“ Hedge Counterparty ”:  With respect to the applicable Class of any Series, as defined in the applicable Series Supplement.

 

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“ Hedge Counterparty Account ”:  With respect to any Series, as defined in the applicable Series Supplement.

 

“ Hybrid Lease ”: As defined in the Property Management Agreement.

 

“ Improvements ”:    As defined in the Property Management Agreement.

 

“ Indenture ”:  The Prior Master Indenture, as amended by this instrument as originally executed or as it may be supplemented or amended from time to time by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, with respect to any Series, the related Series Supplement.

 

“ Indenture Trustee ”:  Citibank, N.A., a national banking association, in its capacity as trustee under this Indenture, or its successor in interest, or any successor trustee appointed as provided in this Indenture.

 

“ Indenture Trustee Fee ” With respect to any Determination Date and each Series of Notes issued under this Indenture, an amount on a monthly basis equal to the product of (a) one-twelfth of the applicable Indenture Trustee Fee Rate and (b) the aggregate Outstanding Principal Balance of each Class of Notes in such Series of Notes as of such Determination Date.

 

“ Indenture Trustee Fee Rate ” : (i) With respect to each Series of Notes issued under this Indenture on or prior to October 18, 2016, the percentage set forth in the Series 2016-1 Supplement dated as of October 18, 2016 and (ii) with respect to each other Series of Notes issued under this Indenture, the percentage set forth in the applicable Series Supplement.

 

“ Indenture Trustee’s Office ”:  The corporate trust office of the Indenture Trustee at which at any particular time its mortgage-backed securities trust business with respect to this Indenture shall be administered, which office at the date of the execution of this Indenture is located at (i) solely for purposes of the transfer, surrender or exchange of Notes, 480 Washington Boulevard, 30th Floor, Jersey City, New Jersey 07310, Attention: Citibank Agency & Trust—STORE Master Funding, and (ii) for all other purposes, 388 Greenwich Street, 14th Floor, New York, New York 10013, Attention: Citibank Agency & Trust—STORE Master Funding, or at such other address as the Indenture Trustee or Note Registrar may designate from time to time.

 

“ Independent ”:  When used with respect to any specified Person, any such Person who (i) is in fact independent of the Indenture Trustee, the Issuers and the related Issuer Member and any and all Affiliates thereof, (ii) does not have any direct financial interest in or any material indirect financial interest in any of the Indenture Trustee, the Issuers, the related Issuer Member or any Affiliate thereof, and (iii) is not connected with the Indenture Trustee, the Issuers, the related Issuer Member or any Affiliate thereof as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided , however , that a Person shall not fail to be Independent of the Indenture Trustee or the Issuers or any related Issuer Member or any Affiliate thereof merely because such Person is the beneficial owner of 2% or less of any class of securities issued by the Indenture Trustee, any Issuer or any related Issuer Member or any Affiliate thereof, as the case may be.  The Indenture Trustee may

 

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rely, in the performance of any duty hereunder, upon the statement of any Person contained in any certificate or opinion that such Person is Independent according to this definition.

 

“ Independent Director ”:  As defined in Section 9.24.

 

“ IRB Hybrid Lease ” : Each Hybrid Lease subject to an industrial revenue bond and labeled as such in the related Series Supplement.

 

“ Initial Closing Date ”: The Series Closing Date of the first Series of Notes issued under the Original Master Indenture and related Series Supplement.

 

“ Initial Principal Balance ”:  With respect to any Class of any Series of Notes, as defined in the applicable Series Supplement.

 

“ Initial Purchaser ”: With respect to a Series of Notes, any Person named as such in the applicable Series Supplement or any successor thereto.

 

“ Insurance Rating Requirements ”: As defined in Section 2.21(m).

 

“ Insurance Schedule ”: As defined in Section 2.21(m).

 

“ Interested Person ”:  Any Issuer, the related Issuer Member, the holder of any related Issuer Interest, the Property Manager, the Special Servicer or an Affiliate of any such Person.

 

“ Issuer ”:  Each of STORE Master Funding I, LLC, a Delaware limited liability company, STORE Master Funding II, LLC, a Delaware limited liability company, STORE Master Funding III, LLC, a Delaware limited liability company, STORE Master Funding IV, LLC, a Delaware limited liability company, STORE Master Funding V, LLC, a Delaware limited liability company, STORE Master Funding VI, LLC, a Delaware limited liability company and STORE Master Funding VII, LLC, a Delaware limited liability company and any other party designated as an “Issuer” in any Series Supplement, as the context may require.  References to a “related” or “applicable” Issuer shall refer to the Issuer that owns the Collateral or has issued or co-issued the Notes being addressed.

 

“ Issuer Advances ” : As defined in Section 2.11(b).

 

“ Issuer Expense Cap ”:  (A) With respect to the Issuer Expenses paid and payable each calendar year, an amount equal to 0.10% of the Aggregate Series Principal Balance (as of the most recent Series Closing Date and each anniversary thereof) per year and 1/12 of such amount per month (such amount to be cumulative for each month in a calendar year if not used, although any such cumulative amount not to be carried forward into the next calendar year) and (B) with respect to the aggregate Issuer Expenses paid and payable pursuant to this Indenture since the Initial Closing Date, an amount equal to $7,500,000; provided, that, upon written confirmation from each Rating Agency that such action will not result in the downgrade, qualification or withdrawal of its then current ratings of the Notes, the Issuer Expense Cap will be such higher amount as proposed by the Issuers.

 

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“ Issuer Expenses ”:  With respect to the Collateral Pool, the costs and expenses relating to the Collateral Pool for (i) general liability insurance policies maintained by the applicable Issuers as owners of the Properties, or such Issuers’ respective proportionate shares of premiums with respect to general liability insurance policies maintained by Affiliates of such Issuers, (ii) casualty insurance policies maintained by the applicable Issuers, or such Issuers’ respective proportionate shares of premiums with respect to casualty insurance policies maintained by Affiliates of such Issuers, to insure casualties not otherwise insured by any related Tenant due to a default by such Tenant under the insurance covenants of its Lease or because any related Tenant permitted to self-insure fails to pay for casualty losses, and (iii) certain state franchise taxes prohibited by the Leases or by law from being passed through by the applicable Issuers as lessor to a Tenant.

 

“ Issuer Interests ”:  As defined in the Series Supplement.

 

“ Issuer Member ”: With respect to each Series of Notes, as defined in the applicable Series Supplement.

 

“ Issuer Order ”:  A written order signed in the name of an Issuer by (i) a Responsible Officer of the related Issuer, in his or her capacity as an officer of such Issuer or (ii) the Issuer Member.

 

“ Issuer Request ”:  A written request signed in the name of an Issuer by (i) a Responsible Officer of the related Issuer, in his or her capacity as an officer of such Issuer or (ii) the Issuer Member.

 

“ Issuer’s Office ”:  The principal office of any Issuer, located at the address provided in the Limited Liability Company Agreement of such Issuer.

 

“ Lease ”:  As defined in the Property Management Agreement.

 

“ Lease Guaranty ”: As defined in the Property Management Agreement.

 

“ Lease Guarantor ”:  Any guarantor under any Lease Guaranty.

 

“ Lease File ”:  As defined in the Property Management Agreement.

 

“ Lease Guaranty ”: As defined in the Property Management Agreement.

 

“ Legal Requirements ”: With respect to each Property, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting such Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto.

 

“ Letter of Representations ”:  With respect to any Series of Notes, the Letter of Representations, dated the applicable Series Closing Date, among the Depository and the applicable Issuers.

 

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“ Lien ”: With respect to each Property, any mortgage, deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting the Property, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances.

 

“ Limited Liability Company Agreement ”:  With respect to each Series, as defined in the applicable Series Supplement.

 

“ Liquidated Lease ”: As defined in the Property Management Agreement.

 

“ Liquidation Proceeds ”: As defined in the Property Management Agreement.

 

“ Loan File ”: As defined in the Property Management Agreement.

 

“ Lockbox Transfer Account ”: As defined in the Property Management Agreement.

 

“ Make Whole Amount ”: With respect to each Series, as defined in the applicable Series Supplement.

 

“ Master Lease Addition Date ”: Any Business Day other than an Issuance Date on which an Additional Master Lease Property is added to the Collateral Pool.

 

“ Master Lease Addition Deliverables ”: With respect to each Additional Master Lease Property on each Master Lease Addition Date, each of the items enumerated in the definition of “Post-Closing Acquisition Deliverables”.

 

“ Master Lease Conditions ”: With respect to any Additional Master Lease Property proposed to be added to the Collateral Pool on any Master Lease Addition Date, the following conditions precedent:

 

(a)                                  satisfaction of the Post-Closing Acquisition Conditions with respect to each Additional Master Lease Property on the applicable Master Lease Addition Date; and

 

(b)                                  such Additional Master Lease Property is subject to a Master Lease with one or more Properties that were included in the Collateral Pool prior to the related Master Lease Addition Date.

 

“ Material Action ”: With respect to any Issuer, to consolidate or merge such Issuer with or into any Person, or sell all or substantially all of the assets of such Issuer, or to institute proceedings to have such Issuer be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against such Issuer or file a petition seeking, or consent to, reorganization or relief with respect to such Issuer under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Issuer or a substantial part of its property, or make any assignment for the benefit of creditors of such Issuer, or admit in writing such

 

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Issuer’s inability to pay its debts generally as they become due, or take action in furtherance of any such action, or, to the fullest extent permitted by law, dissolve or liquidate such Issuer.

 

“ Maturity ”:  With respect to any Note, the date as of which the principal of and interest on such Note has become due and payable as herein provided, whether on the Rated Final Payment Date, by acceleration or otherwise.

 

“ Maximum Property Concentrations ”:  With respect to all Series of Notes, as defined in the most recent Series Supplement.

 

“ Monthly DSCR ”:  As defined in the Property Management Agreement.

 

“ Monthly Lease Payment ”:  As defined in the Property Management Agreement.

 

“ Monthly Loan Payment ”: As defined in the Property Management Agreement.

 

“ Mortgage ”:  With respect to any Property, a mortgage (or deed of trust or deed to secure debt), assignment of leases and rents, security agreement and fixture filing or similar document executed by the applicable Issuer or Borrower, applicable, pursuant to which such Issuer or Borrower grants a lien on its interest in such Property in favor of the Collateral Agent or the initial lender of the lender of the related Mortgage Loan, as applicable.

 

“ Mortgage Loan ”: As defined in the Property Management Agreement.

 

“ Mortgage Loan Schedule ”: As defined in the Property Management Agreement.

 

“ Mortgage Note ” As defined in the Property Management Agreement.

 

“ New Issuance ”: As defined in Section 2.04(c).

 

“ Nonrecoverable Advance ”:  As defined in the Property Management Agreement.

 

“ Note ”:  Any of the Issuers’ Net-Lease Mortgage Notes, executed, authenticated and delivered hereunder and under the related Series Supplements, substantially in the forms attached as Exhibit A hereto.

 

“ Note Interest ”:  On any Payment Date for any Class of Notes, the interest accrued during the related Accrual Period at the Note Rate for such Class, applied to the Outstanding Principal Balance of such Class before giving effect to any payments of principal on such Payment Date. The Note Interest with respect to the Series 2012-1 Notes and the Series 2013-1 Notes will be calculated on a 30/360 basis or actual/360 basis, as indicated in the applicable Series Supplement. The Note Interest with respect to the Series of Notes issued in accordance with the Series 2013-2 Supplement, the Series 2013-3 Supplement, the Series 2014-1 Supplement and any subsequent Series of Notes, will be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

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“ Note Owner ”:  With respect to a Book-Entry Note, the Person who is the beneficial owner of such Note as reflected on the books of the Depository, a Depository Participant or an indirect participating brokerage firm for which a Depository Participant acts as agent. With respect to a Definitive Note, the Person who is the holder of such Note as reflected on the Note Register.

 

“ Note Rate ”:  With respect to any Class of Notes, the note interest rate specified in the applicable Series Supplement.

 

“ Note Register ”:  As defined in Section 2.05(a) .

 

“ Note Registrar ”:  Initially, the Indenture Trustee and thereafter, such other bank or trust company as the Indenture Trustee shall appoint pursuant to Section 2.05(a) .

 

“ Note Transfer Restrictions ”: As defined in Section 2.05(m) .

 

“ Noteholder ” or “ Holder ”:  With respect to any Note, the Person in whose name such Note is registered on the Note Register maintained pursuant to Section 2.05 .  All references herein to “Noteholders” shall reflect the rights of Note Owners as they may indirectly exercise such rights through the Depository and the Depository Participants, except as otherwise specified herein; provided , however , that the parties hereto shall be required to recognize as a “Noteholder” or “Holder” only the Person in whose name a Note is registered in the Note Register as of the related Record Date.

 

“ Notice of Default ”:  As defined in Section 5.02.

 

“ Original Master Indenture ”: As defined in the Preliminary Statement.

 

“ Originator ”: Any of STORE Capital Acquisitions, LLC, a Delaware limited liability company and a wholly owned subsidiary of STORE Capital, or its affiliates that originally acquires Properties or Mortgage Loans pursuant to purchase agreements with third parties and thereafter transfers such Properties or Mortgage Loans to an Issuer.

 

“ OTS ”:  Office of Thrift Supervision or any successor thereto.

 

“ Outstanding ”:  When used with respect to Notes, means, as of any date of determination, any Note theretofore authenticated and delivered under this Indenture, except:

 

(i)                                Notes theretofore canceled by the Note Registrar or delivered to the Note Registrar for cancellation (other than any Note as to which any amount that has become due and payable in respect thereof has not been paid in full); and

 

(ii)                             Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Note Registrar proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the applicable Issuers;

 

15

 

provided , however , that in determining whether the Holders of the requisite amount or percentage have given any request, demand, authorization, vote, direction, notice, consent or waiver hereunder, Notes owned by an Interested Person shall be disregarded and deemed not to be Outstanding (other than with respect to a request for consent pursuant to Section 8.02 or unless any such Person or Persons owns all such Notes), except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which the Note Registrar knows to be so owned shall be so disregarded.  Notes owned by an Interested Person which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Note Registrar in its sole discretion the pledgee’s right to act with respect to such Notes and that the pledgee is not an Interested Person.

 

“ Outstanding Principal Balance ”:  With respect to any Class of Notes and any date of determination, the applicable Initial Principal Balance less the sum of all principal payments actually distributed to the Holders of such Class as of such date of determination.

 

“ Owned Property Schedule ”:  As defined in the Property Management Agreement.

 

“ Ownership Interest ”:  As to any Note, any ownership or security interest in such Note as held by the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.

 

“ Payment Account ”:  The segregated account established in the name of the Indenture Trustee pursuant to Section 2.10(a) .

 

“ Payment Date ”:  The 20 th  day of each calendar month, or, if such 20 th  day is not a Business Day, the next succeeding Business Day, commencing with respect to each Series on the date specified in the applicable Series Supplement, and with respect to any Voluntary Prepayment, the applicable Redemption Date as set forth in the applicable Series Supplement.

 

“ Payoff Amount ”:  As defined in the Property Management Agreement.

 

“ Percentage Interest ”:  With respect to any Note, the fraction, expressed as a percentage, the numerator of which is the initial principal balance of such Note on the applicable Series Closing Date as set forth on the face thereof, and the denominator of which is the Initial Principal Balance of the related Class of Notes on the applicable Series Closing Date.

 

“ Percentage Rent ”:  As defined in the Property Management Agreement.

 

“ Permanent Regulation S Global Note ”:  As defined in Section 2.01(c).

 

“ Permitted Encumbrances ”: With respect to any Property, collectively, (a) the Liens and security interests created by the Transaction Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policies relating to such Property or any part thereof, (c) Liens, if any, for taxes imposed by any Governmental Authority not yet delinquent, (d) Leases, (e) such other title and survey exceptions as are required by the Lease for such Property, and (f) such other easements, covenants, restrictions, rights-of-way and encumbrances

 

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as the applicable Issuer or the Property Manager has approved or may approve in writing in accordance with the Servicing Standard, which Permitted Encumbrances in the aggregate do not materially adversely affect the value or use or operation of such Property, the security intended to be provided by the related Mortgage or the Issuers’ ability to repay the Notes.  If reasonably requested by the applicable Issuer or the Property Manager, the Indenture Trustee shall join in the execution of a Permitted Encumbrance described in (e) and (f) above and subordinate the liens under the Transaction Documents to the same.

 

“ Permitted Investments ”: Any one or more of the following obligations or securities:

 

(i)                                      direct obligations of, or guaranteed as to timely payment of principal and interest by, the United States of America or any agency or instrumentality thereof provided that such obligations are backed by the full faith and credit of the United States of America;

 

(ii)                                   direct obligations of, or guaranteed as to timely payment of principal and interest by, the Federal Home Loan Mortgage Corporation, the Federal Home Loan Bank, the Federal National Mortgage Association or the Federal Farm Credit System, provided that any such obligation, at the time of purchase or contractual commitment providing for the purchase thereof, is qualified by any Rating Agency as an investment of funds backing securities rated “AAA” (or such comparable rating);

 

(iii)                                demand and time deposits in or certificates of deposit of, or bankers’ acceptances issued by, any bank or trust company, savings and loan association or savings bank fully insured by the Federal Deposit Insurance Corporation, which such bank, trust company, savings and loan association or savings bank shall have a rating of not less than A-2 from S&P;

 

(iv)                               repurchase obligations collateralized at 102% by any security described in clause (i) or (ii) above entered into with a depository institution or trust company (acting as principal) described in clause (iii) above; and

 

(v)                                  such other obligations as the Issuers consent to in writing and would not cause a downgrade of the Notes.

 

“ Permitted Materials ”: As defined in the Property Management Agreement.

 

“ Person ”:  Any individual, corporation, partnership, limited liability company, joint venture, joint-stock company, estate, trust, association, unincorporated organization, or any federal, state, county or municipal government or any agency or political subdivision thereof.

 

“ Plan ”:  Any one of: (i)(A) an “employee benefit plan”, as defined in Section 3(3) of ERISA that is subject to the provisions of Title I of ERISA, or (B) a “plan”, as defined in Section 4975 of the Code, that is subject to the provisions of Section 4975 of the Code; (ii) an entity whose underlying assets include assets of any such employee benefit plan or plan as set forth in clause (i) of this definition by reason of an investment in such entity by such employee benefit plan or plan; or (iii) a governmental, church or non-U.S. plan that is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code.

 

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“ Post-ARD Additional Interest ”: On any Payment Date on or after the Anticipated Repayment Date of any applicable Class of Notes, the interest accrued at the applicable Post-ARD Additional Interest Rate from and after such Payment Date on the Outstanding Principal Balance of such Class determined prior to giving effect to any payments of principal on such Payment Date.

 

“ Post-ARD Additional Interest Rate ”: With respect to any applicable Class of Notes, the note interest rate specified in the applicable Series Supplement.

 

“ Post-Closing Acquisition Conditions ”: With respect to each Post-Closing Property on each Post-Closing Acquisition Date, the following conditions precedent:

 

(a)                                  receipt by the Indenture Trustee of an Officer’s Certificate from the Issuers (upon which the Indenture Trustee may conclusively rely with no liability therefor), dated as of the applicable Post-Closing Acquisition Date, in the form of Exhibit G-1 attached hereto, certifying to the following, and a Responsible Officer of the Indenture Trustee has no actual knowledge that anything contained therein is untrue:

 

(i)                                      no Early Amortization Period or DSCR Sweep Period is continuing and the acquisition of the Post-Closing Properties will not result in the occurrence of an Early Amortization Period or a DSCR Sweep Period;

 

(ii)                                   based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that no uncured Event of Default is continuing as of the applicable Post-Closing Acquisition Date and the acquisition of the related Post-Closing Properties will not result in the occurrence of an Event of Default;

 

(iii)                                each Issuer is a solvent, special purpose, bankruptcy-remote entity;

 

(iv)                               the representations and warranties of the Issuers made pursuant to this Indenture with respect to the Post-Closing Properties are true and correct as of the Post-Closing Acquisition Date;

 

(v)                                  all Post-Closing Acquisition Deliverables have been delivered to the Custodian as of the applicable Post-Closing Acquisition Date or such Post-Closing Acquisition Deliverables are addressed by a certification from counsel to the Issuers in the form of Exhibit G-3 attached hereto;

 

(vi)                               each of the UCC Financing Statements (in the form of the UCC Financing Statements delivered in the ordinary course with respect to the Issuers’ Properties), including those (A) to the extent required by the jurisdiction in which the Post-Closing Property is located, which, upon filing, perfect the Indenture Trustee’s security interest in each such Post-Closing Property for the benefit of the Noteholders and (B) that relate to the termination of any applicable liens with respect to each such Post-Closing Property, have been delivered to the applicable title insurance company with appropriate direction to file such UCC Financing Statements in connection with the acquisition of the Post-Closing Properties; and

 

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(vii)                            each Post-Closing Property satisfies the requirements set forth in the definition of Post-Closing Property.

 

(b)                                  receipt by the Indenture Trustee of an Officer’s Certificate from STORE Capital (upon which the Indenture Trustee may conclusively rely with no liability therefor), dated as of the applicable Post-Closing Acquisition Date, in the form of Exhibit G-2 attached hereto, certifying that (i) the terms, covenants, agreements and conditions to be complied with and performed by STORE Capital pursuant to the Transaction Documents have been complied with and performed in all material respects and (ii) each of the representations and warranties of STORE Capital contained in the Transaction Documents are true and correct in all material respects as though expressly made on and as of the Post-Closing Acquisition Date;

 

(c)                                   receipt by the Indenture Trustee and the Custodian of a certification from counsel to the Issuers, dated as of the Post-Closing Acquisition Date and in form and substance of Exhibit G-3 attached hereto, that each of the items required to be delivered pursuant to this Indenture and the Custody Agreement in connection with the acquisition of a Post-Closing Property has been duly delivered in the form and substance required therein or, to the extent such documents have not been so delivered, that (i) such documents are in the possession of the related title company and such title company has been instructed to record or file such documents, as applicable, or (ii) such counsel has such documents in its possession and is acting as the document agent on behalf of the Custodian and the Noteholders with respect thereto and that such documents will be delivered as required pursuant to this Indenture and the Custody Agreement; and

 

(d)                                  receipt by the Indenture Trustee of a receipt and certification of the Custodian in accordance with the Custody Agreement with respect to such Post-Closing Property.

 

“ Post-Closing Acquisition Date ”: Any Business Day on or after the related Series Closing Date through and including the related Post-Closing Acquisition Deadline.

 

“Post-Closing Acquisition Deadline ”: With respect to each Series, as defined in the related Series Supplement.

 

“ Post-Closing Acquisition Deliverables ”: With respect to each Post-Closing Property on each Post-Closing Acquisition Date, the following items:

 

(a)                                  a Lease File with respect to such Post-Closing Property containing all components of a Lease File;

 

(b)                                  Opinions of Counsel from counsel to the Issuers, each dated as of the applicable Post-Closing Acquisition Date, relating to the Indenture Trustee’s security interest created by, and enforceability of, the related Mortgages, including, if applicable, perfection of the Indenture Trustee’s security interest in fixtures in the related Post-Closing Property; provided , however, that no such opinion of counsel shall be required if (i) the Master Lease Addition Date occurs no later than six (6) months after the Series Closing Date, and (ii) an opinion of counsel was given on the Series Closing Date with respect to the applicable Master Lease in the state where such Additional Master Lease Property is located;

 

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(c)                                   a duly executed copy of the applicable purchase and sale agreement, or other similar agreement, evidencing transfer of such Post-Closing Property to the related Issuer;

 

(d)                                  a payoff letter, title company escrow letter, or other similar documentation for such Post-Closing Property providing, among other things, that any prior lien on such Post-Closing Property will be released upon payment in full of the indebtedness outstanding under each applicable purchase and sale agreement; and

 

(e)                                   the following documents: (a) to the extent available, an updated or amended “tie-in” or similar endorsement, together with a “first loss” endorsement, (i) to each title insurance policy insuring the lien of the existing Mortgages as of the Post-Closing Acquisition Date, (ii) to each title insurance policy insuring the lien of the Mortgages with respect to each Post-Closing Property and (iii) providing that any leases of record are subordinate to the relevant Mortgage, and (b) a title insurance policy (or a marked, signed and redated commitment or pro forma policy to issue such title insurance policy) insuring the lien of the Mortgage encumbering each Post-Closing Property, issued by the title company that issued the title insurance policies insuring the lien of the existing Mortgages and dated as of the date of the Post-Closing Acquisition Date that contains such endorsements and affirmative coverages as are then available and are contained in the title insurance policies insuring the liens of the existing Mortgages, and such other endorsements or affirmative coverage that a prudent institutional mortgage lender would require.

 

“ Post-Closing Acquisition Notice ”: As defined in Section 12.19(b).

 

“ Post-Closing Acquisition Remittance Amount ”: With respect to each Post-Acquisition Closing Date, the amount to be remitted by the Indenture Trustee in accordance with Section 12.19 hereof, which such amount shall be no greater than 75% of the related Aggregate Collateral Value of Post-Closing Properties.

 

“ Post-Closing Acquisition Reserve Account ”: The segregated trust account established by and in the name of the Indenture Trustee pursuant to Section 12.19 hereof.

 

“ Post-Closing Acquisition Reserve Amount ”: With respect to any Class of Notes, as defined in the applicable Series Supplement.

 

“ Post-Closing Acquisition Unused Proceeds ”: As defined in Section 12.19 herein.

 

“ Post-Closing Property ”: A Property or Hybrid Lease acquired by an Issuer with amounts on deposit in the Post-Closing Acquisition Reserve Account that, on such Post-Closing Acquisition Date, (i) complies, in all material respects, with all of the applicable representations and warranties hereunder (with each date therein referring to the relevant Post-Closing Acquisition Date), (ii) is leased to a Tenant or Tenants whose Unit FCCR, Master Lease FCCR or Hybrid Lease FCCR is greater than or equal to 1.25x, (iii) has, or is leased pursuant to a Lease that has, a remaining term that will not cause the weighted average remaining term of the Collateral Pool to decrease by more than three (3) months, (iv) if the Tenant thereon or any third party has an option to purchase such Post-Closing Property, the contractual amount of such Third Party Option Price is not less than what the Allocated Loan Amount of such Post-Closing

 

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Property would be after being acquired by the Issuer, (v) is leased to a Tenant or Tenants whose Unit FCCR will not cause the Weighted Average Unit FCCR of the Collateral Pool to decrease by more than 0.05, (vi) is, or is leased pursuant to, a “triple-net” lease, (vii) has an appraisal meeting the requirements set forth in the definition of Appraised Value that was obtained no more than (12) months prior to the relevant Post-Closing Acquisition Date, (viii) is leased to a Tenant or Tenants whose lease rate will not cause the weighted average lease rate of the Collateral Pool to decrease by more than 0.10 and (ix) after giving effect to the acquisition of such Property or Hybrid Lease by the related Issuer, either (A) a Maximum Property Concentration is not exceeded, or (B) if, prior to such acquisition, an existing Maximum Property Concentration is already exceeded, the addition of such Post-Closing Property will reduce the Maximum Property Concentration or such Maximum Property Concentration will remain unchanged after giving effect to such acquisition.

 

“ Principal Terms ”: With respect to any Series: (i) the name or designation of such Series; (ii) the initial principal amount of the Notes to be issued for such Series; (iii) the interest rate to be paid with respect to such Series (or method for the determination thereof); (iv) the Mortgage Loans and Properties pledged to the Indenture Trustee in connection with such Series; (v) the designation of any Series Accounts and the terms governing the operation of any such Series Accounts; (vi) the terms of any form of Series Enhancement with respect to such Series; (vii) the Rated Final Payment Date for the Series; and (viii) such other terms and provisions as may be specified in the applicable Series Supplement with respect to the related Notes and the Collateral Pool.

 

“ Prior Master Indenture ”: As defined in the Preliminary Statement.

 

“ Proceeding ”:  Any suit in equity, action at law or other judicial or administrative proceeding.

 

“ Property ”:  As defined in the Property Management Agreement.

 

“ Property Management Agreement ”:  The Fourth Amended and Restated Property Management and Servicing Agreement, dated as of April 16, 2015, among STORE Master Funding I, LLC, as an Issuer, STORE Master Funding II, LLC, STORE Master Funding III, LLC, as an Issuer, STORE Master Funding IV, LLC, as an Issuer, STORE Master Funding V, LLC, as an Issuer, STORE Master Funding VI, LLC, as an Issuer, STORE Capital, as the Property Manager and Special Servicer, the Indenture Trustee, the Back-up Manager, and any other joining party thereto, each such joining party as an Issuer, as the same may be further amended or supplemented from time to time.

 

“ Property Management Fee ”:  As defined in the Property Management Agreement.

 

“ Property Manager ”:  As defined in the Property Management Agreement.

 

“ Purchase and Sale Agreements ”: Collectively (i) the Loan Purchase Agreements and Purchase Agreements between the applicable Originator and the applicable Issuer, pursuant to which such Issuer acquires Mortgage Loans, Hybrid Lease loan components and Properties, as applicable, from the applicable Originator and (ii) the Purchase Agreements, if

 

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any, between the applicable Originator and certain third parties, the rights of which are assigned by the applicable Originator from time to time to an Issuer.

 

“ Qualified Institutional Buyer ”:  A “qualified institutional buyer” within the meaning of Rule 144A.

 

“ Qualified Substitute Hybrid Lease ”: As defined in the Property Management Agreement.

 

“ Qualified Substitute Loan ”: As defined in the Property Management Agreement.

 

“ Qualified Substitute Property ”: As defined in the Property Management Agreement.

 

“ Rated Final Payment Date ”:  With respect to any Series of Notes, the date specified in the applicable Series Supplement.

 

“ Rating Agency ”:  With respect to any Series of Notes, each nationally recognized statistical rating organization that has been requested by the applicable Issuers to assign a rating to a Class of such Series.

 

“ Rating Condition ”:  With respect to any action or event or proposed action or event, will be satisfied by each Rating Agency then rating any existing Series of Notes confirming in writing that such action or event or proposed action or event will not result in the downgrade, qualification or withdrawal of such Rating Agency’s then current ratings of such Notes.

 

“ Record Date ”:  As to any Payment Date with respect to Book-Entry Notes, the Business Day immediately preceding such Payment Date.  As to any Payment Date with respect to Definitive Notes, the last Business Day of the prior calendar month or, in the case of the initial Payment Date for any Series, the applicable Series Closing Date.

 

“ Recorded Covenants ”: With respect to a Property, all covenants, agreements, restrictions and encumbrances contained in any instruments recorded against the same or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to such Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.

 

“ Redemption Date ” As defined in Section 7.01.

 

“ Regulation S ”:  Regulation S promulgated under the Securities Act.

 

“ Regulation S Global Note ”:  As defined in Section 2.01(c).

 

“ Release Account ”:  As defined in the Property Management Agreement.

 

“ Remedial Work ”:  As defined in the Property Management Agreement.

 

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“ Requisite Global Majority ”:  The Noteholders representing more than 66 2/3% of the Aggregate Series Principal Balance.

 

“ Resolution ”:  With respect to any Issuer, a copy of a resolution certified by an Authorized Officer of the applicable Issuer Member, to have been duly adopted by such Issuer Member to be in full force and effect on the date of such certification.

 

“ Responsible Officer ”:  With respect to the Indenture Trustee, any officer of the Indenture Trustee assigned to its Corporate Trust Services Group, customarily performing functions with respect to corporate trust matters and having direct responsibility for the administration of this Indenture and, with respect to a particular corporate trust matter under this Indenture, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, in each case, having direct responsibility for the administration of this Indenture; and, with respect to the Issuers and the Issuer Member, any officer or number of officers or other Person or number of Persons duly authorized to perform the indicated action on behalf of such Person.

 

“ Restricted Global Note ”:  As defined in Section 2.01(b).

 

“ Restricted Period ”:  With respect to the Notes of any Series, the period of time to and including 40 days after the later of (a) the date upon which such Notes were first offered to any Persons (other than distributors) in reliance upon Regulation S and (b) the applicable Series Closing Date.

 

“ Rule 144A ”:  Rule 144A promulgated under the Securities Act.

 

“ Rule 501(a) ”: Rule 501(a) promulgated under the Securities Act.

 

“ S&P ”:  Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, which is a division of S&P Global, Inc.

 

“ Scheduled Principal Payment ”:  With respect to each Payment Date and each Series, an amount equal to the sum of (a) any unpaid Scheduled Principal Payment or portion thereof for such Series from any prior Payment Date plus (b) the product of (i) (A) the related Scheduled Series Principal Balance for the prior Payment Date minus (B) the related Scheduled Series Principal Balance for the current Payment Date multiplied by (ii) a fraction (A) the numerator of which is equal to the Series Principal Balance immediately prior to such Payment Date (without taking into account any payments to be made on such Payment Date), minus the amounts specified in clause (a)  of this definition and (B) the denominator of which is the related Scheduled Series Principal Balance for the prior Payment Date.

 

“ Scheduled Series Principal Balance ”:  With respect to any Payment Date and any Series of Notes, as defined in the applicable Series Supplement.

 

“ SEC ”:  The U.S. Securities and Exchange Commission.

 

“ Securities Act ”:  The Securities Act of 1933, as amended, and the rules, regulations and published interpretations of the SEC promulgated thereunder from time to time.

 

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“ Series ”: Any series of Notes issued pursuant to this Indenture.

 

“ Series Account ”: Any account described in a related Series Supplement as established in the name of the Indenture Trustee for the benefit of the related Noteholders.

 

“ Series Available Amount ”:  As defined in Section 2.11(b).

 

“ Series Closing Date ”: With respect to any Series, the closing date specified in the applicable Series Supplement.

 

“ Series Disposition Period Date ”: With respect to each Series of Notes, as defined in the related Series Supplement.

 

“ Series Enhancement ”: The rights and benefits provided to the applicable Issuers or the Noteholders of any Series or Class pursuant to any interest rate swap agreement, interest rate cap agreement, reserve account, spread account, guaranteed rate agreement, letter of credit, surety bond, financial guaranty insurance, interest rate protection agreement or other similar agreement. Series Enhancement shall also refer to any agreements, instruments or documents governing the terms of the enhancements mentioned in the previous sentence or under which they are issued, where the context makes sense.  The subordination of any Class to another Class shall be deemed to be a Series Enhancement.

 

“ Series Enhancer ”: The Person or Persons providing any Series Enhancement, other than (except to the extent otherwise provided with respect to any Series in the related Series Supplement) the Noteholders of any Class of any Series which is subordinated to another Class of such Series.

 

“ Series Note ”: Any one of the Notes with the same Series designation, executed by the applicable Issuers and authenticated by or on behalf of the Indenture Trustee.

 

“ Series Principal Balance ”:  For any date of determination and any Series, the sum of the Outstanding Principal Balances of each Class of Notes of such Series.

 

“ Series Supplement ”: With respect to any Series, a supplement to this Indenture, executed and delivered in connection with the original issuance of the Notes of such Series under Section 2.04 hereof, including all amendments thereof and supplements thereto.

 

“ Series Transaction Documents ”: With respect to any Series of Notes, any and all of the related Series Supplement, any related supplements or amendments to the Transaction Documents, documents related to any applicable Series Enhancement, if any, and any and all other agreements, documents and instruments executed and delivered by or on behalf or in support of the applicable Issuers with respect to the issuance and sale of such Series of Notes, as the same may from time to time be amended, modified, supplemented or renewed.

 

“ Servicing Standard ”:  As defined in the Property Management Agreement.

 

“ Special Servicer ”:  As defined in the Property Management Agreement.

 

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“ Special Servicing Fee ”:  As defined in the Property Management Agreement.

 

“ Specially Managed Unit ”:  As defined in the Property Management Agreement.

 

“ STORE Capital ”: STORE Capital Corporation, a Maryland corporation, or its successor in interest.

 

“ Sub-Manager ” :  As defined in the Property Management Agreement.

 

“ Successor Person ”:  As defined in Section 9.08(a)(i).

 

“ Support Provider ”: With respect to each Series of Notes, STORE Capital as support provider under the Guaranty.

 

“ Tax Opinion ”:  An Opinion of Counsel in respect of Taxes.

 

“ Taxes ”:  As defined in Section 9.03(a) .

 

“ Temporary Regulation S Global Note ”:  As defined in Section 2.01(b).

 

“ Tenant ”:  With respect to each Lease, the tenant under such Lease and any successor or assign thereof.

 

“ Third Party Purchase Option ”: As defined in the Property Management Agreement.

 

“ Transaction Documents ”:  This Indenture, the Property Management Agreement, the Hedge Agreements, the Limited Liability Company Agreements and other organizational documents of the Issuers, each Account Control Agreement, the Guaranties, the Collateral Agency Agreement, the Custody Agreement and other Series Transaction Documents specified in the related Series Supplement.

 

“ Transfer ”:  Any direct or indirect transfer, sale, pledge, hypothecation or other form of assignment of any Ownership Interest in a Note.

 

“ Transfer Date ”:  The date on which a Property or Mortgage Loan is acquired by the applicable Issuer.

 

“ Transfer-Restricted Note ”: As defined in Section 2.05(m).

 

“ Treasury Regulations ”:  Temporary, final or proposed regulations (to the extent that by reason of their proposed effective date such proposed regulations would apply to the Issuers) of the United States Department of the Treasury.

 

“ Trustee Report ”:  As defined in Section 6.01(a).

 

“ Unscheduled Principal Payment ”:  On any Payment Date, the Unscheduled Proceeds deposited into the Collection Account for such Payment Date.

 

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“ Unscheduled Proceeds ”:  As defined in the Property Management Agreement.

 

“ U.S. Person ”:  As defined in Regulation S.

 

“ Voluntary Prepayment ”:  Any voluntary prepayment of any Class of Notes, in whole but not in part, in accordance with the procedures set forth in Section 7.01 .

 

Section 1.02                             Rules of Construction .

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1)                                  the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(2)                                  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP, and, except as otherwise herein expressly provided, the terms “generally accepted accounting principles” or “GAAP” with respect to any computation required or permitted hereunder means such accounting principles as are generally accepted in the United States;

 

(3)                                  the word “including” shall be construed to be followed by the words “without limitation”;

 

(4)                                  article and section headings are for the convenience of the reader and shall not be considered in interpreting this Indenture or the intent of the parties hereto;

 

(5)                                  the definition of or any reference to any agreement, document or instrument herein shall be construed as referring to such agreement, document or instrument as from time to time amended, restated, supplemented or otherwise modified;

 

(6)                                  references to any law, constitution, statute, treaty, regulation, rule or ordinance, including any section or other part thereof, shall refer to such law, constitution, statute, treaty, regulation, rule or ordinance as amended from time to time, and shall include any successor thereto;

 

(7)                                  references herein to any Person shall be construed to include such Person’s successors and permitted assigns;

 

(8)                                  the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular article, section or other subdivision; and

 

(9)                                  the pronouns used herein are used in the masculine and neuter genders but shall be construed as feminine, masculine or neuter, as the context requires.

 

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ARTICLE II

 

THE NOTES

 

Section 2.01                             Forms; Denominations .

 

(a)                                  Each Series of Notes shall be designated as the “Net-Lease Mortgage Notes”.  The Notes may be issued with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon consistent herewith, as determined by the officers executing such Notes, as evidenced by their execution thereof.  Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note. The number of Series of Notes which may be created by this Indenture is not limited.

 

(b)                                  Forms of Notes .

 

(i)                                Except as set forth in Section 2.01(b)(ii) below and as otherwise set forth in the related Series Supplement, the Notes of each Class in a Series, upon original issuance, shall be issued as Book-Entry Notes in substantially the form of (i) a global note without interest coupons representing the Notes of such Class sold to Qualified Institutional Buyers, in substantially the form of Exhibit A-1 hereto, with such applicable legends as may be set forth in such exhibit (the “ Restricted Global Note ”), and (ii) a temporary global note without interest coupons representing the Notes of such Class sold in “offshore transactions” (within the meaning of Regulation S) to non-U.S. Persons in reliance on Regulation S, in substantially the form of Exhibit A-2 hereto, with such applicable legends as may be set forth in such exhibit (the “ Temporary Regulation S Global Note ”).

 

(ii)                             Notes held as of the related Series Closing Date by an Issuer or an Affiliate of an Issuer may be issued initially in the form of certificated notes in definitive, fully registered form without interest coupons in substantially the form of Exhibit A-3 hereto, with such applicable legends as may be set forth in such exhibit (each, a “ Definitive Note ”) which shall be registered in the name of the beneficial owner or nominee thereof, duly executed by the Issuers and authenticated by the Indenture Trustee as hereinafter provided.

 

(iii)                          Each Class of Notes will be issuable only in denominations of not less than $100,000 and in integral multiples of $1 in excess thereof or as otherwise specified in the applicable Series Supplement. Each Note will be registered on issuance in the names of the initial Noteholders thereof.

 

(c)                                   After such time as the Restricted Period shall have terminated, and subject to the receipt by the Indenture Trustee of a certificate substantially in the form of Exhibit D-4 hereto (subject to Section 12.03 ), beneficial interests in a Temporary Regulation S Global Note may be exchanged for an equal aggregate principal amount of beneficial interest in a permanent global note without interest coupons (a “ Permanent Regulation S Global Note ” and, together

 

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with the Temporary Regulation S Global Notes, the “ Regulation S Global Notes ”), substantially in the form of Exhibit A-2 hereto, with such applicable legends as may be set forth in such exhibit.  Upon any exchange of any beneficial interest in a Temporary Regulation S Global Note for a beneficial interest in a Permanent Regulation S Global Note, (i) such Temporary Regulation S Global Note shall be endorsed by the Indenture Trustee to reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such Temporary Regulation S Global Note shall be reduced for all purposes by the amount so exchanged and endorsed and (ii) such Permanent Regulation S Global Note shall be endorsed by the Indenture Trustee to reflect the increase of the principal amount evidenced thereby, whereupon the principal amount of such Permanent Regulation S Global Note shall be increased for all purposes by the amount so exchanged and endorsed.

 

(d)                                  Each Restricted Global Note will be deposited with the Book-Entry Custodian and registered in the name of the Depository or a nominee thereof.  Each Regulation S Global Note will be deposited with the Book-Entry Custodian and registered in the name of the Depository or a nominee thereof for the accounts of Clearstream Banking, société anonyme , or its successors, and/or Euroclear Bank S.A./N.V., as operator of the Euroclear System, or its successors. Each Definitive Note will be delivered to and registered in the name of the applicable Noteholder.

 

Section 2.02                             Execution, Authentication, Delivery and Dating .

 

(a)                                  The Notes of each Series shall be executed by manual or facsimile signature on behalf of the applicable Issuers by any Authorized Officers of such Issuers.  Notes bearing the manual or facsimile signatures of individuals who were at any time the Authorized Officers of such applicable Issuers shall be entitled to all benefits under this Indenture, subject to the following sentence, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.  No Note shall be entitled to any benefit under this Indenture, or be valid for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein, executed by the Indenture Trustee by manual signature, and such certificate of authentication upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.  All Notes shall be dated the respective dates of their authentication.

 

(b)                                  At the election of the Indenture Trustee, the Indenture Trustee may appoint one or more agents (each, an “ Authenticating Agent ”) with power to act on its behalf and subject to its direction in the authentication of Notes in connection with transfers and exchanges under Sections 2.05 and 2.07 , as fully to all intents and purposes as though each such Authenticating Agent had been expressly authorized under those Sections to authenticate the Notes.  For all purposes of this Indenture, the authentication of Notes by an Authenticating Agent shall be deemed to be the authentication of such Notes “by the Indenture Trustee.”  The Indenture Trustee shall be the initial Authenticating Agent.

 

Any corporation, bank, trust company or association into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation, bank, trust company or association resulting from any merger, consolidation or

 

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conversion to which any Authenticating Agent shall be a party, or any corporation, bank, trust company or association succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, without the execution or filing of any further act on the part of the parties hereto or such Authenticating Agent or such successor corporation, bank, trust company or association.

 

Any Authenticating Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuers.  The Indenture Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and the Issuers.  Upon receiving such notice of resignation or upon such a termination, the Indenture Trustee may promptly appoint a successor Authenticating Agent, and give written notice of such appointment to the Issuers and to the Noteholders.  Upon the resignation or termination of the Authenticating Agent and prior to the appointment of a successor, the Indenture Trustee shall act as Authenticating Agent.

 

Each Authenticating Agent shall be entitled to all limitations on liability, rights of reimbursement and indemnities that the Indenture Trustee is entitled to hereunder as if it were the Indenture Trustee.

 

(c)                                   The Indenture Trustee shall upon Issuer Request authenticate and deliver Notes of each Series for original issue in an aggregate amount equal to the initial Outstanding Principal Balance for each related Class as set forth in the applicable Series Supplement.

 

Section 2.03                             Reserved .

 

Section 2.04                             The Notes Generally; New Issuances .

 

(a)                                  Each Note of a particular Class shall rank pari passu with each other Note of such Class and be equally and ratably secured by the Collateral included in the Collateral Pool.  All Notes of a particular Class shall be substantially identical except as to denominations and as expressly permitted in this Indenture.

 

(b)                                  This Indenture, together with the related Mortgages, shall evidence a continuing lien on and security interest in the Collateral Granted hereunder or subsequently included in the Collateral Pool to secure the full payment of the principal, interest and other amounts on the Notes of all Series, which shall in all respects be equally and ratably secured hereby for payment as provided herein, and without preference, priority or distinction on account of the actual time or times of the authentication and delivery of the Notes of any Class with respect to any Series, all in accordance with the terms and provisions of this Indenture and each Series Supplement.

 

(c)                                   Pursuant to one or more Series Supplements, the applicable Issuers may, from time to time, direct the Indenture Trustee, on behalf of such Issuers, to issue one or more new Series of Notes (a “ New Issuance ”). The Notes of all outstanding Series shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction on account of the actual time of the authentication and delivery of any such Notes, all in accordance with the terms and provisions of this Indenture and each Series Supplement.

 

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On or before the Series Closing Date relating to any New Issuance, the applicable Issuers shall execute and deliver a Series Supplement which shall specify the Principal Terms with respect to such Series.  The Indenture Trustee shall execute the Series Supplement, the applicable Issuers shall execute the Notes of such Series and the Notes of such Series shall be delivered to the Indenture Trustee for authentication and delivery.

 

(d)                                  The issuance of the first Series of Notes (which Series shall be issued pursuant to a Series Supplement dated as of the Initial Closing Date) shall be subject to the satisfaction of the following conditions:

 

(i)                                receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;

 

(ii)                             receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;

 

(iii)                          all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or a custodian on its behalf together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;

 

(iv)                         receipt by the Indenture Trustee of Opinions of Counsel, (A) relating to  the corporate and enforceability matters, as well as securities law matters, reasonably acceptable to the related Initial Purchasers and their counsel; (B) relating to the perfection and priority of the Indenture Trustee’s security interest; (C) relating to the consolidation of the assets and liabilities of the applicable Issuer in a bankruptcy proceeding that involves such Issuer, the related Issuer Member or STORE Capital; (D) relating to the characterization of the particular Class of Notes indicated in the related Series Supplement as debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;

 

(v)                            receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each Class of Notes has been given the ratings as indicated in the related Series Supplement;

 

(vi)                         any applicable Issuer, if it has not done so for any previously issued Series, has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity; and

 

(vii)                      receipt by the Indenture Trustee of an Officer’s Certificate from the applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled.

 

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(e)                                   The issuance of the Notes of any Series other than the first Series of Notes shall be subject to the satisfaction of the following conditions:

 

(i)                                receipt by the Indenture Trustee of an Issuer Order authorizing the execution and authentication of such Notes;

 

(ii)                             receipt by the Indenture Trustee of the Transaction Documents and the related Series Transaction Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any breach or waiver;

 

(iii)                          if required by the related Series Supplement, delivery to the Indenture Trustee of the form of any Series Enhancement and all accompanying agreements with respect thereto and satisfaction of any other requirements set forth in such Series Supplement;

 

(iv)                         all Lease Files and Loan Files with respect to the Collateral Pool, as set forth herein, shall have been delivered to the Indenture Trustee or a custodian on its behalf together with all UCC Financing Statements, documents of similar import in other jurisdictions, and other documents reasonably necessary to perfect the Indenture Trustee’s security interest in such Collateral for the benefit of the Noteholders of all Series;

 

(v)                            each Rating Agency then rating any existing Series of Notes shall have confirmed in writing that such issuance will not result in the downgrade, qualification or withdrawal of the higher of (A) the then current rating of such Notes and (B) the rating of such Notes at the time of the original issuance thereof;

 

(vi)                         receipt by the Indenture Trustee of an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, such New Issuance (x) will not adversely affect the tax characterization of the Class of Notes of any outstanding Series that was characterized as debt at the time of its issuance for U.S. federal income tax purposes, (y) will not cause any of the Issuers of any outstanding Series to be treated as an association that is taxable as a corporation, a publicly-traded partnership that is taxable as a corporation or a taxable mortgage pool that is taxable as a corporation, for U.S. federal income tax purposes, and (z) will not cause or constitute an event in which any U.S. federal income tax gain or loss would be recognized by any Noteholder or any of the Issuers of any outstanding Series;

 

(vii)                      receipt by the Indenture Trustee of Opinions of Counsel, (A) relating to corporate and enforceability matters, as well as securities law matters reasonably acceptable to the related Initial Purchasers; (B) relating to the perfection and priority of the Indenture Trustee’s security interest; (C) (i) relating to the consolidation of the assets of the applicable Issuers in a bankruptcy proceeding that involves any such Issuer, the related Issuer Member or STORE Capital and (ii) if any Collateral is being assigned to an Issuer by an Affiliate of such Issuer in connection with the issuance of such Series, related to true sale matters with respect to such Collateral; (D) relating to the characterization of any Class of Notes indicated in the related Series Supplement as

 

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debt for U.S. federal income tax purposes; (E) all opinions relating to enforceability of the related Mortgage; and (F) any other opinion required under the related Series Supplement;

 

(viii)                   receipt by the Indenture Trustee of copies of letters signed by each applicable Rating Agency confirming that each other Class of Notes has been given the then-current ratings by such Rating Agencies;

 

(ix)                         any applicable Issuer, if it has not done so for any previously issued Series, has delivered a certificate of such Issuer to the Indenture Trustee, dated the applicable Series Closing Date, to the effect that such Issuer is a solvent, special purpose, bankruptcy-remote entity;

 

(x)                            the Rated Final Payment Date with respect to such Notes shall be no earlier than the earliest Rated Final Payment Date with respect to any issued Series of Notes;

 

(xi)                         no Early Amortization Period is continuing at the time of such issuance and such issuance will not result in the occurrence of an Early Amortization Period;

 

(xii)                      such New Issuance shall not result in the occurrence of an Event of Default and the Issuers have delivered to the Indenture Trustee an Officer’s Certificate, dated the applicable Series Closing Date (upon which the Indenture Trustee may rely), to the effect that (1) based on the facts known to the Person executing such Officer’s Certificate, the Issuers reasonably believe that no uncured Event of Default is continuing at the time of such New Issuance and that such New Issuance shall not result in the occurrence of an Event of Default and (2) all conditions precedent to such execution, authentication and delivery have been satisfied;

 

(xiii)                   receipt by the Indenture Trustee of an Officer’s Certificate from each applicable Issuer, upon which the Indenture Trustee shall be permitted to fully rely and shall not have any liability for so relying, stating that the conditions precedent to such issuance have been fulfilled; and

 

(xiv)                  any additional conditions as set forth in the related Series Supplement.

 

Section 2.05                             Registration of Transfer and Exchange of Notes .

 

(a)                                  At all times during the term of this Indenture, there shall be maintained at the office of the Note Registrar a “ Note Register ” in which, subject to such reasonable regulations as the Note Registrar may prescribe, the Note Registrar shall provide for the registration of Notes and of transfers and exchanges of Notes as herein provided.  The offices of the Note Registrar shall be initially located (as of the date hereof) at Citibank, N.A., 388 Greenwich Street, 14 th  Floor, New York, New York 10013, Attention: Citibank Agency & Trust—STORE Master Funding.  The Indenture Trustee is hereby initially appointed (and hereby agrees to act in accordance with the terms hereof) as “ Note Registrar ” for the purpose of

 

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registering Notes and transfers and exchanges of Notes as herein provided.  The Indenture Trustee may appoint, by a written instrument delivered to the Issuers, any other bank or trust company to act as Note Registrar under such conditions as the predecessor Indenture Trustee may prescribe; provided , that the Indenture Trustee shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment.  If the Indenture Trustee resigns or is removed in accordance with the terms hereof, the successor trustee shall immediately succeed to its predecessor’s duties as Note Registrar.  The Issuers, the Property Manager, the Special Servicer, the Back-Up Manager and the Indenture Trustee shall have the right to inspect the Note Register or to obtain a copy thereof at all reasonable times, and to rely conclusively upon a certificate of the Note Registrar as to the information set forth in the Note Register.  Upon written request of any Noteholder made for purposes of communicating with other Noteholders with respect to their rights under this Indenture, the Note Registrar shall promptly furnish such Noteholder with a list of the other Noteholders of record identified in the Note Register at the time of the request.

 

(b)                                  No Transfer of any Note or interest therein shall be made unless that Transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction that does not require such registration or qualification.  No purported Transfer of any interest in any Note or any portion thereof which is not made in accordance with this Section 2.05 shall be given effect by or be binding upon the Indenture Trustee and any such purported Transfer shall be null and void ab initio and vest in the transferee no rights against the Collateral Pool or the Indenture Trustee.

 

None of the Issuers or any other person shall be obligated to register or qualify any Notes under the Securities Act or any other securities law or to take any action not otherwise required under this Indenture to permit the transfer of any Note or interest therein without registration or qualification.

 

By its acceptance of a Note or an Ownership Interest therein, each Holder and Note Owner, respectively, will be deemed to have represented and agreed (or, in the case of Definitive Notes, shall represent and agree) that the Transfer thereof is restricted and agrees that it shall Transfer such Note or Ownership Interest only in accordance with the terms of this Indenture and such Note (including the legends applicable thereto) and in compliance with applicable law.

 

(c)                                   A Noteholder or Note Owner may exchange or Transfer a Book-Entry Note or Ownership Interest therein only in accordance with the following provisions:

 

(i)                                No Transfer of any Book-Entry Note or an Ownership Interest therein shall be made unless such Transfer is made to a Qualified Institutional Buyer in reliance on Rule 144A or in an “offshore transaction” (within the meaning of Regulation S) to a non-U.S. Person in reliance on Regulation S, and pursuant to exemption, registration or qualification under applicable state securities laws.  The Indenture Trustee shall be entitled to rely upon the representations made or deemed made by each transferee pursuant to this Section 2.05 , and shall have no duty to undertake any investigation or verify that any Transfer satisfies the requirements of this paragraph.

 

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(ii)                             Restricted Global Note to Regulation S Global Note during Restricted Period .  If a Holder of or a Note Owner with respect to a Restricted Global Note wishes at any time during the Restricted Period to exchange its interest in such Restricted Global Note for an interest in the corresponding Regulation S Global Note, or to Transfer such Restricted Global Note or an Ownership Interest therein to a Person who wishes to take delivery thereof in the form of a Regulation S Global Note or an Ownership Interest therein, such Holder or Note Owner may, subject to the provisions of this Section 2.05 , exchange or Transfer such Restricted Global Note for a Regulation S Global Note of the same Series and Class or an Ownership Interest therein with an equivalent principal amount.  Upon receipt by the Indenture Trustee of a certificate substantially in the form of Exhibit D-2 (subject to Section 12.03 ) given by the transferee of such Note or Ownership Interest (stating that such transferee is a non-U.S. Person and the exchange or Transfer of such interest has been made in compliance with the transfer restrictions applicable to such Notes and in accordance with Regulation S), the Indenture Trustee shall cancel the Restricted Global Note so exchanged or transferred (or reduce the principal amount of the Notes evidenced thereby), the applicable Issuers shall, concurrently with such cancellation (or reduction), issue and the Indenture Trustee shall cause to be authenticated to the transferee a Regulation S Global Note of the same Series and Class (or increase the principal amount of the Notes evidenced by such Regulation S Global Note) in an aggregate principal amount equal to the aggregate principal amount of the Restricted Global Note so exchanged or transferred.

 

(iii)                          Restricted Global Note to Regulation S Global Note after the Expiration of Restricted Period .  If a Holder of or a Note Owner with respect to a Restricted Global Note wishes at any time after the expiration of the Restricted Period to exchange its interest in such Restricted Global Note for an interest in the corresponding Regulation S Global Note, or to Transfer such Restricted Global Note or an Ownership Interest therein to a Person who wishes to take delivery thereof in the form of a Regulation S Global Note or an Ownership Interest therein, such Noteholder or Note Owner may, subject to provisions of this Section 2.05 , exchange or Transfer such Restricted Global Note for a Regulation S Global Note of the same Series and Class or an Ownership Interest therein with an equivalent principal amount.  Upon receipt by the Indenture Trustee of a certificate substantially in the form of Exhibit D-3 (subject to Section 12.03 ) given by the transferee (stating that the Transfer of such interest has been made in compliance with the transfer restrictions applicable to such Notes and pursuant to and in accordance with Regulation S), the Indenture Trustee shall cancel the Restricted Global Note so exchanged or transferred (or reduce the principal amount of the Notes evidenced thereby) and the applicable Issuers shall, concurrently with such cancellation (or reduction), issue and the Indenture Trustee shall cause to be authenticated to the transferee a Regulation S Global Note of the same Series and Class (or increase the principal amount of the Notes evidenced by such Regulation S Global Note) in an aggregate principal amount equal to the aggregate principal amount of the Restricted Global Note so exchanged or transferred.

 

(iv)                         Regulation S Global Note to Restricted Global Note .  If a Holder of or a Note Owner with respect to a Regulation S Global Note wishes at any time to

 

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exchange its interest in such Regulation S Global Note for an interest in a Restricted Global Note or to Transfer such Regulation S Global Note or an Ownership Interest therein to a Qualified Institutional Buyer who wishes to take delivery thereof in the form of a Restricted Global Note or an Ownership Interest therein, such Noteholder or Note Owner may, subject to the provisions of this Section 2.05 , exchange or Transfer such Regulation S Global Note for a Restricted Global Note of the same Series and Class or an Ownership Interest therein in an equivalent principal amount.  Upon receipt by the Indenture Trustee of a certificate substantially in the form of Exhibit D-1 (subject to Section 12.03 ) given by the transferee and stating that such transferee is a Qualified Institutional Buyer and is obtaining such Restricted Global Note or Ownership Interest therein in a transaction meeting the requirements of Rule 144A, the Indenture Trustee shall cancel the Regulation S Global Note so exchanged or transferred (or reduce the principal amount of the Notes evidenced thereby) and the applicable Issuers shall, concurrently with such cancellation (or reduction), issue and the Indenture Trustee shall cause to be authenticated to the transferee a Restricted Global Note of the same Series and Class (or increase the principal amount of the Notes evidenced by such Restricted Global Note) in an aggregate principal amount equal to the aggregate principal amount of the Regulation S Global Note so exchanged or transferred.

 

(v)                            Transfer of Ownership Interests in Book-Entry Notes .  Ownership Interests in Book-Entry Notes shall be exchanged or transferred in accordance with the rules and procedures of the Depository and the Depository Participants, including, with respect to Regulation S Global Notes, Clearstream Banking, société anonyme , or its successors, and Euroclear Bank S.A./N.V., as operator of the Euroclear System, or its successors.

 

(vi)                         Book-Entry Note to Definitive Note . If any Book-Entry Note or an Ownership Interest therein is to be exchanged for a corresponding interest held in the form of a Definitive Note, or if any Transfer of a Book-Entry Note or an Ownership Interest therein is to be held by the related transferee in the form of a Definitive Note, then the Note Registrar shall refuse to register such exchange or Transfer unless it receives (and, upon receipt, may conclusively rely upon) (A) an executed transferor certificate from the transferor substantially in the form attached as Exhibit C-1 (subject to Section 12.03 ), and (B) an executed transferee certificate from the prospective transferee substantially in the form attached as Exhibit C-2 (subject to Section 12.03 ).  If any such transfer of a Book-Entry Note or Ownership Interest held by the related transferor and also to be held by the related transferee in the form of a Book-Entry Note is to be made without registration under the Securities Act, the transferor will be deemed to have made as of the transfer date each of the representations and warranties set forth on Exhibit C-1 in respect of such Note and the transferee will be deemed to have made as of the transfer date each of the representations and warranties set forth on Exhibit C-2 in respect of such Note, in each case as if such Note were evidenced by a Definitive Note.

 

(d)                                  A Noteholder or Note Owner may exchange or Transfer a Definitive Note or Ownership Interest therein only in accordance with the following provisions:

 

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(i)                                No Transfer of any Definitive Note shall be made unless such Transfer is made to a Qualified Institutional Buyer in reliance on Rule 144A or in an “offshore transaction” (within the meaning of Regulation S) to a non-U.S. Person in reliance on Regulation S, and pursuant to exemption, registration or qualification under applicable state securities laws; provided, however, that a Noteholder may Transfer a Definitive Note to an Issuer or an Affiliate of an Issuer that is an accredited investor within the meaning of Rule 501(a) (1), (2), (3) or (7) of the Securities Act (an “ Accredited Investor ”) and has certified that it is an Affiliate of an Issuer and an Accredited Investor, upon Indenture Trustee’s receipt of (A) such Holder’s Definitive Note properly endorsed for assignment to the transferee, (B) an executed transferor certificate from the transferor substantially in the form attached as Exhibit C-1 (subject to Section 12.03 ), and (C) an executed transferee certificate from the prospective transferee substantially in the form attached as Exhibit C-2 (subject to Section 12.03 ). The Indenture Trustee shall be entitled to rely upon the representations made or deemed made by each transferee pursuant to this Section 2.05 , and shall have no duty to undertake any investigation or verify that any Transfer satisfies the requirements of this paragraph.

 

(ii)                             Transfer of Definitive Note to Regulation S Global Note during Restricted Period .  If a Holder of or a Note Owner with respect to a Definitive Note wishes at any time during the Restricted Period to exchange its interest in such Definitive Note for an interest in the corresponding Regulation S Global Note, or to Transfer such Definitive Note or an Ownership Interest therein to a Person who wishes to take delivery thereof in the form of a Regulation S Global Note or an Ownership Interest therein, such Holder or Note Owner may, subject to the provisions of this Section 2.05 , exchange or Transfer such Definitive Note for a Regulation S Global Note of the same Series and Class or an Ownership Interest therein with an equivalent principal amount.  Upon receipt by the Indenture Trustee of (A) such Holder’s Definitive Note properly endorsed for assignment to the transferee and (B) a certificate substantially in the form of Exhibit D-2 (subject to Section 12.03 ) given by the transferee of such Note or Ownership Interest (stating that such transferee is a non-U.S. Person and the exchange or Transfer of such interest has been made in compliance with the transfer restrictions applicable to such Notes and in accordance with Regulation S), the Indenture Trustee shall cancel the Definitive Note so exchanged or transferred (or reduce the principal amount of the Notes evidenced thereby), the applicable Issuers shall, concurrently with such cancellation (or reduction), issue and the Indenture Trustee shall cause to be authenticated to the transferee a Regulation S Global Note of the same Series and Class (or increase the principal amount of the Notes evidenced by such Regulation S Global Note) in an aggregate principal amount equal to the aggregate principal amount of the Definitive Note so exchanged or transferred.

 

(iii)                          Transfer of Definitive Note to Regulation S Global Note after the Expiration of Restricted Period .  If a Holder of or a Note Owner with respect to a Definitive Note wishes at any time after the expiration of the Restricted Period to exchange its interest in such Definitive Note for an interest in the corresponding Regulation S Global Note, or to Transfer such Definitive Note or an Ownership Interest therein to a Person who wishes to take delivery thereof in the form of a Regulation S Global Note or an Ownership Interest therein, such Noteholder or Note Owner may,

 

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subject to provisions of this Section 2.05 , exchange or Transfer such Definitive Note for a Regulation S Global Note of the same Series and Class or an Ownership Interest therein with an equivalent principal amount.  Upon receipt by the Indenture Trustee of (A) such Holder’s Definitive Note properly endorsed for assignment to the transferee and (B) a certificate substantially in the form of Exhibit D-3 (subject to Section 12.03 ) given by the transferee (stating that the Transfer of such interest has been made in compliance with the transfer restrictions applicable to such Notes and pursuant to and in accordance with Regulation S), the Indenture Trustee shall cancel the Definitive Note so exchanged or transferred (or reduce the principal amount of the Notes evidenced thereby) and the applicable Issuers shall, concurrently with such cancellation (or reduction), issue and the Indenture Trustee shall cause to be authenticated to the transferee a Regulation S Global Note of the same Series and Class (or increase the principal amount of the Notes evidenced by such Regulation S Global Note) in an aggregate principal amount equal to the aggregate principal amount of the Definitive Note so exchanged or transferred.

 

(iv)                         Transfer of Definitive Note to Restricted Global Note .  If a Holder of or a Note Owner with respect to a Definitive Note wishes at any time to exchange its interest in such Definitive Note for an interest in a Restricted Global Note or to Transfer such Definitive Note or an Ownership Interest therein to a Qualified Institutional Buyer who wishes to take delivery thereof in the form of a Restricted Global Note or an Ownership Interest therein, such Noteholder or Note Owner may, subject to the provisions of this Section 2.05 , exchange or Transfer such Definitive Note for a Restricted Global Note of the same Series and Class or an Ownership Interest therein in an equivalent principal amount.  Upon receipt by the Indenture Trustee of (A) such Holder’s Definitive Note properly endorsed for assignment to the transferee and (B) a certificate substantially in the form of Exhibit D-1 (subject to Section 12.03 ) given by the transferee and stating that such transferee is a Qualified Institutional Buyer and is obtaining such Restricted Global Note or Ownership Interest therein in a transaction meeting the requirements of Rule 144A, the Indenture Trustee shall cancel the Definitive Note so exchanged or transferred (or reduce the principal amount of the Notes evidenced thereby) and the applicable Issuers shall, concurrently with such cancellation (or reduction), issue and the Indenture Trustee shall cause to be authenticated to the transferee a Restricted Global Note of the same Series and Class (or increase the principal amount of the Notes evidenced by such Restricted Global Note) in an aggregate principal amount equal to the aggregate principal amount of the Definitive Note so exchanged or transferred.

 

(v)                            Transfer of Definitive Note to Definitive Note . If a Holder of a Definitive Note wishes at any time to transfer such Definitive Note to a Person who wishes to take delivery thereof in the form of one or more Definitive Notes, such Holder may transfer or cause the transfer of such Note as provided below. Upon receipt by the Indenture Trustee of (A) such Holder’s Definitive Note, properly endorsed for assignment to the transferee, (B) an executed transferor certificate from the transferor substantially in the form attached as Exhibit C-1 (subject to Section 12.03 ), and (C) an executed transferee certificate from the prospective transferee substantially in the form attached as Exhibit C-2 (subject to Section 12.03 ), then the Indenture Trustee shall

 

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cancel such original Definitive Note in accordance with Section 2.14 , record the transfer in the Note Register in accordance with Section 2.05 and upon execution by the Issuer, authenticate and deliver one or more Definitive Notes bearing the same designation as the Definitive Notes, endorsed for transfer, registered in the names specified in the assignment described in clause (A) above, in the aggregate Note Balances designated by the transferee (the aggregate Note Balances being equal to the aggregate Note Balance of the Definitive Notes, surrendered by the transferor), and in authorized denominations.

 

(e)                                   If a Person is acquiring any Note as a fiduciary or agent for one or more accounts, such Person shall be required to deliver to the Note Registrar a certification to the effect that, and such other evidence as may be reasonably required by the Note Registrar to confirm that, it has (i) sole investment discretion with respect to each such account and (ii) full power to make the foregoing acknowledgments, representations, warranties, certifications and agreements with respect to each such account as set forth in subsections (b)  and (c)  of this Section 2.05 .

 

(f)                                    Subject to the preceding provisions of this Section 2.05 , upon surrender for registration of transfer of any Note at the offices of the Note Registrar maintained for such purpose, the applicable Issuers shall execute, and the Indenture Trustee shall cause to be authenticated and delivered, in the name of the designated transferee or transferees, one or more new Notes of the same Series and Class of a like Percentage Interest.

 

(g)                                   At the option of any Holder, its Notes may be exchanged for other Notes of authorized denominations of the same Series and Class of a like Percentage Interest upon surrender of the Notes to be exchanged at the offices of the Note Registrar maintained for such purpose. Whenever any Notes are so surrendered for exchange, the applicable Issuers shall execute, and the Indenture Trustee shall cause to be authenticated and delivered the Notes which the Noteholder making the exchange is entitled to receive.

 

(h)                                  Every Note presented or surrendered for transfer or exchange shall (if so required by the Note Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Note Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.

 

(i)                                      No service charge shall be imposed for any transfer or exchange of Notes, but the Indenture Trustee or the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Notes.

 

(j)                                     All Notes surrendered for transfer and exchange shall be physically canceled by the Note Registrar, and the Note Registrar shall dispose of such canceled Notes in accordance with its customary procedures.

 

(k)                                  The Note Registrar or the Indenture Trustee shall provide to the Issuers upon reasonable written request and at the expense of the requesting party a current copy of the Note Register.

 

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(l)                                      Each transferee of a Note or an Ownership Interest therein will be deemed to have represented, warranted and agreed (or, in the case of Definitive Notes, shall represent, warrant and agree) that either (i) such transferee is not, and is not purchasing such Note on behalf of, as a fiduciary of, as trustee of, or with the assets of, a Plan or (ii)(A) such Note is rated investment grade or better as of the date of the purchase, (B) such transferee acknowledges that it cannot acquire such Note unless it is properly treated as indebtedness without substantial equity features for purposes of Department of Labor Regulations, as modified by ERISA, and agrees to so treat such Note and (C) such transferee’s acquisition and continued holding of such Note or Ownership Interest therein will not constitute or give rise to a non-exempt prohibited transaction described in Section 406 of ERISA or Section 4975 of the Code (or any law substantially similar to Section 4975 of the Code or Section 406 of ERISA).

 

(m)                              If any Note or Class of Notes is directly or indirectly owned by a Person such that such Note or Class of Notes is not properly treated as issued and outstanding for federal income tax purposes (a “ Transfer-Restricted Note ”), then such Transfer-Restricted Note may be sold or transferred to any Person if (a) the Note Registrar has received on the date of such sale or transfer an opinion of nationally recognized tax counsel knowledgeable in the tax aspects of securitization to the effect that at the time of such sale or transfer (1) such Transfer-Restricted Note is treated as indebtedness for federal income tax purposes and (2) such sale or transfer does not cause any Issuer to be treated as an association that is taxable as a corporation, a publicly traded partnership that is taxable as a corporation or a taxable mortgage pool that is taxable as a corporation for federal income tax purposes, or (b) (1) the sum of the number of beneficial owners of the Transfer-Restricted Notes and the equity interests of all Issuers does not exceed the 95-Person Limit (as defined below) for U.S. federal income tax purposes after the proposed sale or transfer, (2) the Transfer-Restricted Notes are in definitive, physical form and (3) the Note Transfer Restrictions (as defined below) shall have been complied with.

 

For purposes of complying with alternative (b) above in this Section 2.05(m) with respect to the proposed sale or transfer of a Transfer-Restricted Note, each prospective beneficial owner of any Transfer-Restricted Note shall represent, warrant and covenant to the Trustee and the Issuers in writing, on the date of such proposed sale or transfer, that (a) it is a U.S. Person within the meaning of Code section 7701(a)(30), (b) either (1) such beneficial owner is not a partnership, grantor trust or S corporation (a “ Flow-Through Entity ”) or (2) if such beneficial owner is a Flow-Through Entity or indirectly owns an interest in the Transfer-Restricted Notes through a Flow-Through Entity, (i) more than 50% of the value of such beneficial owner’s ownership interest in the Flow-Through Entity is not attributable to the Flow-Through Entity’s interest in the Transfer-Restricted Notes and (ii) a principal purpose of the use of the Flow-Through Entity is not to enable the sum of the number of beneficial owners of the Transfer-Restricted Notes and the equity interests of all Issuers to exceed 95 persons (the “ 95-Person Limit ”) and (c) it will not use the Transfer-Restricted Notes and will not allow the Transfer-Restricted Notes to be used as collateral for the issuance of any securities that could cause any Issuer to become taxable as a corporation for U.S. federal income tax purposes and (2) will not take any action and will not allow any other action that could cause any Issuer to become taxable as a corporation for U.S. federal income tax purposes (the “ Note Transfer Restrictions ”).

 

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Section 2.06                             Book-Entry Notes .

 

(a)                                  The Book-Entry Notes of each Series shall be delivered as one or more Notes held by the Book-Entry Custodian or, if appointed to hold such Notes as provided below, the Depository, and registered in the name of the Depository or its nominee and, except as set forth in any related Series Supplement or as otherwise provided in Section 2.06(c)  below, transfer of such Notes may not be registered by the Note Registrar unless such transfer is to a successor Depository that agrees to hold such Notes for the respective Note Owners with Ownership Interests therein.  Except as provided in Sections 2.01 and 2.05 above, and Section 2.06(c)  below, such Note Owners shall hold and transfer their respective Ownership Interests in and to such Notes through the book-entry facilities of the Depository and, except as provided in Sections 2.01 and 2.05 above, and Section 2.06(c)  below, shall not be entitled to Definitive Notes in respect of such Ownership Interests.  All transfers by Note Owners of their respective Ownership Interests in the Book-Entry Notes to be held by the related transferees as Book-Entry Notes shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing each such Note Owner.  Each Depository Participant shall only transfer the Ownership Interests in the Book-Entry Notes of Note Owners it represents or of brokerage firms for which it acts as agent in accordance with the Depository’s normal procedures.  The Indenture Trustee is hereby initially appointed as the Book-Entry Custodian and hereby agrees to act as such in accordance herewith and in accordance with the agreement that it has with the Depository authorizing it to act as such.  Neither the Indenture Trustee nor the Note Registrar shall have any responsibility to monitor or restrict the transfer of any Book-Entry Note transferable through the book-entry facilities of the Depository.  The Book-Entry Custodian may, and, if it is no longer qualified to act as such, the Book-Entry Custodian shall, appoint, by a written instrument delivered to the Issuers, the Property Manager and Special Servicer, and, if the Indenture Trustee is not the Book-Entry Custodian, the Indenture Trustee, any other transfer agent (including the Depository or any successor Depository) to act as Book-Entry Custodian under such conditions as the predecessor Book-Entry Custodian and the Depository or any successor Depository may prescribe; provided , that the predecessor Book-Entry Custodian shall not be relieved of any of its duties or responsibilities by reason of any such appointment other than with respect to an appointment of the Depository.  If the Indenture Trustee resigns or is removed in accordance with the terms hereof, the successor trustee or, if it so elects, the Depository shall immediately succeed to its predecessor’s duties as Book-Entry Custodian.  The Issuers shall have the right to inspect, and to obtain copies of, any Notes held as Book-Entry Notes by the Book-Entry Custodian.

 

(b)                                  The Issuers, the Indenture Trustee, the Property Manager, the Special Servicer, the Back-Up Manager and the Note Registrar may for all purposes, including the making of payments due on the Book-Entry Notes, deal with the Depository as the Noteholder and the authorized representative of the Note Owners with respect to such Notes for the purposes of exercising the rights of Noteholders hereunder.  The rights of Note Owners with respect to the Book-Entry Notes shall be limited to those established by law and agreements between such Note Owners and the Depository Participants and brokerage firms representing such Note Owners.  Multiple requests and directions from, and votes of, the Depository as holder of the Book-Entry Notes with respect to any particular matter shall not be deemed inconsistent if they are made with respect to different Note Owners.  The Indenture Trustee may establish a reasonable record date in connection with solicitations of consents from or voting by Noteholders and shall give notice to the Depository of such record date.

 

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(c)                                   If (i) the Issuers advise the Indenture Trustee and the Note Registrar in writing that the Depository is no longer willing or able to properly discharge its responsibilities with respect to the Book-Entry Notes (or any portion thereof), and (ii) the Issuers are unable to locate a qualified successor, the Note Registrar shall notify all affected Note Owners, through the Depository, of the occurrence of any such event and of the availability of Definitive Notes to such Note Owners requesting the same.  Upon surrender to the Note Registrar of the Book-Entry Notes (or any portion thereof) by the Book-Entry Custodian or the Depository, as applicable, and the delivery of registration instructions from the Depository for registration of transfer, the applicable Issuers shall execute, and the Indenture Trustee shall cause to be authenticated and delivered, the Definitive Notes in respect of such Notes to the Note Owners identified in such instructions.  None of the applicable Issuers, the Collateral Agent, the Indenture Trustee, the Property Manager, the Special Servicer, the Back-Up Manager or the Note Registrar shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions.

 

(d)                                  Upon the issuance of Definitive Notes, for purposes of evidencing ownership of any Notes, the registered holders of such Definitive Notes shall be recognized as Noteholders hereunder and, accordingly, shall be entitled directly to receive payments on, to exercise voting and consent rights with respect to, and to transfer and exchange such Definitive Notes.

 

(e)                                   Each of the Issuers shall provide an adequate inventory of Definitive Notes of each Class of each Series to the Indenture Trustee.

 

Section 2.07                             Mutilated, Destroyed, Lost or Stolen Notes .

 

If any mutilated Note is surrendered to the Note Registrar, the applicable Issuers shall execute and the Indenture Trustee shall cause to be authenticated and delivered, in exchange therefor, a new Note of the same Series, Class and principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the applicable Issuers, the Indenture Trustee and the Note Registrar (i) evidence to their satisfaction of the destruction (including mutilation tantamount to destruction), loss or theft of any Note and the ownership thereof, and (ii) indemnity as may be reasonably required by them to hold each of them and any of their agents harmless, then, in the absence of notice to the applicable Issuers or the Note Registrar that such Note has been acquired by a bona fide purchaser, the applicable Issuers shall execute and the Indenture Trustee shall cause to be authenticated and delivered, in lieu of any such destroyed, lost or stolen Note, a new Note of the same Series, Class, tenor and denomination registered in the same manner, dated the date of its authentication and bearing a number not contemporaneously outstanding.

 

Upon the issuance of any new Note under this Section 2.07 , the applicable Issuers, the Indenture Trustee and the Note Registrar may require the payment by the Noteholder of an amount sufficient to pay or discharge any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the reasonable fees and expenses of the Authenticating Agent and the Indenture Trustee) in connection therewith.

 

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Every new Note issued pursuant to this Section 2.07 in lieu of any destroyed, mutilated, lost or stolen Note shall constitute an original additional contractual obligation of the Issuers, whether or not the destroyed, mutilated, lost or stolen Note shall be at any time enforceable by any Person, and such new Note shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes of its Class and Series duly issued hereunder.

 

The provisions of this Section 2.07 are exclusive and shall preclude (to the extent permitted by applicable law) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.

 

Section 2.08                             Noteholder Lists .

 

The Note Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of the Noteholders of each Series, which list, upon request, will be made available to the Indenture Trustee insofar as the Indenture Trustee is no longer the Note Registrar.  Upon written request of any Noteholder made for purposes of communicating with other Noteholders with respect to their rights under this Indenture, the Note Registrar shall promptly furnish such Noteholder at such Noteholder’s expense with a list of the Noteholders of record identified in the Note Register at the time of the request.  Every Noteholder, by receiving such access, or by receiving a Note or an interest therein, agrees with the Note Registrar that the Note Registrar will not be held accountable in any way by reason of the disclosure of any information as to the names and addresses of any Noteholder regardless of the source from which such information was derived.

 

Section 2.09                             Persons Deemed Owners .

 

The Issuers, the Indenture Trustee, the Note Registrar and any of their agents, may treat the Person in whose name a Note is registered as the owner of such Note as of the related Record Date for the purpose of receiving payments of principal, interest and other amounts in respect of such Note and for all other purposes, whether or not such Note shall be overdue, and none of the Issuers, the Indenture Trustee, the Note Registrar or any agents of any of them, shall be affected by notice to the contrary.

 

Section 2.10                             Payment Account .

 

(a)                                  On or prior to the Initial Closing Date, the Indenture Trustee shall establish and maintain one or more segregated trust accounts (collectively, the “ Payment Account ”) at Citibank, N.A., in its name, as Indenture Trustee, bearing a designation clearly indicating that such account and all funds deposited therein are held for the exclusive benefit of the Noteholders and the Issuers as their interests may appear. At all times, the Payment Account shall be an Eligible Account or a sub-account of an Eligible Account. On each Remittance Date, the Indenture Trustee shall deposit or cause to be deposited in the Payment Account, as provided in the Property Management Agreement, the Available Amount for such Payment Date.  Except as provided in this Indenture, the Indenture Trustee, in accordance with the terms of this Indenture, shall have exclusive control and sole right of withdrawal with respect to the Payment Account.  Funds in the Payment Account shall not be commingled with any other moneys.  All

 

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moneys deposited from time to time in the Payment Account shall be held by and under the control of the Indenture Trustee in the Payment Account for the benefit of the Noteholders and the Issuers as herein provided.

 

(b)                                  Amounts in the Payment Account shall be held uninvested.

 

(c)                                   The Indenture Trustee is authorized to make withdrawals from the Payment Account (the order set forth hereafter in this subsection (c)  not constituting an order of priority for such withdrawals) to make payments on the Notes and to other parties as set forth in the priorities of payments pursuant to Section 2.11(b)  of this Indenture, to the applicable Series Enhancers and to the Issuers as provided in Section 2.11 .

 

(d)                                  Upon the satisfaction and discharge of this Indenture pursuant to Section 3.01 , the Indenture Trustee shall pay to the holders of the Issuer Interests, as their interests may appear, all amounts, if any, held by it remaining as part of the Collateral Pool.

 

Section 2.11                             Payments on the Notes .

 

(a)                                  Subject to Section 2.11(b) , the applicable Issuers agree to pay:

 

(i)                                on each Payment Date prior to the Rated Final Payment Date for the Classes of each Series of Notes (but only to the extent of the Available Amount pursuant to Section 2.11(b) , in the case of payments of principal), interest on and principal of such Notes in the amounts and in accordance with the priorities set forth in Section 2.11(b) ; and

 

(ii)                             on the Rated Final Payment Date for the Classes of each Series of Notes, the entire applicable Series Principal Balance, together with all accrued and unpaid interest thereon.

 

Amounts properly withheld under the Code by any Person from a payment to any Holder of a Note of interest, principal or other amounts, or any such payment set aside on the Final Payment Date for such Note as provided in Section 2.11(b) , shall be considered as having been paid by the applicable Issuers to such Noteholder for all purposes of this Indenture.

 

(b)                                  With respect to each Payment Date, any interest, principal and other amounts payable on the Notes shall be paid to each Person that is a registered holder thereof at the close of business on the related Record Date; provided , however , that interest, principal and other amounts payable at the Final Payment Date of any Note shall be payable only against surrender thereof at the Indenture Trustee’s Office or such other address as may be specified in the notice of final payment.  Payments of interest, principal and other amounts on the Notes shall be made on each Payment Date other than the Final Payment Date, subject to applicable laws and regulations, by wire transfer to such accounts as each such Noteholder shall designate by written instruction received by the Indenture Trustee not later than the Record Date related to such Payment Date or otherwise by check mailed on or before such Payment Date to the Person entitled thereto at such Person’s address appearing on the Note Register as of the related Record Date.  The Indenture Trustee shall pay each Note in whole or in part as provided herein on its Final Payment Date in immediately available funds from funds in the Payment Account as

 

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promptly as possible after presentation to the Indenture Trustee of such Note at the Indenture Trustee’s Office, but in no event later than the next Business Day after the day of such presentation.  If presentation is made after 3:30 p.m., New York City time, on any day, such presentation shall be deemed to have been made on the immediately succeeding Business Day.

 

Each payment with respect to a Book-Entry Note shall be paid to the Depository, as holder thereof, and the Depository shall be responsible for crediting the amount of such payment to the accounts of its Depository Participants in accordance with its normal procedures.  Each Depository Participant shall be responsible for disbursing such payments to the related Note Owners that it represents and to each indirect participating brokerage firm (a “ brokerage firm ” or “ indirect participating firm ”) for which it acts as agent.  Each brokerage firm shall be responsible for disbursing funds to the related Note Owners that it represents.  None of the parties hereto shall have any responsibility therefor except as otherwise provided by this Indenture or applicable law.  The applicable Issuers and the Indenture Trustee shall perform their respective obligations under each Letter of Representations.

 

Except as provided in the following sentence, if a Note is issued in exchange for any other Note during the period commencing at the close of business at the office or agency where such exchange occurs on any Record Date and ending before the opening of business at such office or agency on the related Payment Date, no interest, principal or other amounts will be payable on such Payment Date in respect of such new Note, but will be payable on such Payment Date only in respect of the prior Note.  Interest, principal and other amounts payable on any Note issued in exchange for any other Note during the period commencing at the close of business at the office or agency where such exchange occurs on the Record Date immediately preceding the Final Payment Date for such Notes and ending on the Final Payment Date for such Notes, shall be payable to the Person that surrenders the new Note as provided in this Section 2.11(b) .

 

All payments of interest, principal and other amounts made with respect to the Notes of a Class of any Series will be allocated pro rata among the Outstanding Notes of such Class as set forth below.

 

If any Note on which the final payment was due is not presented for payment on its Final Payment Date, then the Indenture Trustee shall set aside such payment in a segregated, non-interest bearing account (and shall remain uninvested) separate from the Payment Account (but which may be a sub-account thereof) but which constitutes an Eligible Account (or a sub-account of an Eligible Account), and the Indenture Trustee and the Issuers shall act in accordance with Section 5.10 in respect of the unclaimed funds.

 

On each Payment Date, the Available Amount for such Payment Date will be applied by the Indenture Trustee, first to pay the following expenses of the Issuers related to the Collateral Pool (collectively, “ Collateral Pool Expenses ”), (i) to the extent not withdrawn from the Collection Account by the Property Manager on or prior to the applicable Remittance Date in accordance with the Property Management Agreement in the following order of priority:

 

(I) to the Indenture Trustee, the earned and unpaid Indenture Trustee Fees;

 

(II) to the Property Manager, the earned and unpaid Property Management Fee;

 

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(III) to the Special Servicer, any earned and unpaid Special Servicing Fees;

 

(IV) to the Back-Up Manager, any earned and unpaid Back-Up Fee;

 

(V) to the Property Manager, the Special Servicer, the Back-Up Manager and the Indenture Trustee, as applicable, an amount equal to all unreimbursed Advances, including Nonrecoverable Advances (plus interest thereon at the Reimbursement Rate) and Extraordinary Expenses for such Payment Date and to the extent unpaid from any prior Payment Date with interest thereon at the Reimbursement Rate (not to exceed the Extraordinary Expense Cap, unless an Event of Default resulting in the acceleration of the Notes has occurred and is then continuing, in which case, such limit will not apply);

 

(VI) to the parties entitled thereto, the amount of any Issuer Expenses (not to exceed the Issuer Expense Cap, unless an Event of Default resulting in the acceleration of the Notes has occurred and is then continuing, in which case, such limit will not apply); and

 

(VII) (a)  first , to the Indenture Trustee (in any of its capacities under this Indenture), (b)  second , to the Property Manager and the Special Servicer, and (c)  third , to the relevant party, the amount of Extraordinary Expenses for such Payment Date and to the extent unpaid from any prior Payment Date, to the extent not already reimbursed in sub-clauses (I)  through (VI)  above, in each case, with interest thereon at the Reimbursement Rate (not to exceed the Extraordinary Expense Cap, unless an Event of Default resulting in the acceleration of the Notes has occurred and is then continuing, in which case (i) such limit will not apply and (ii) indemnities due to the Issuers or any Control Person, member, manager, officer, employee or agent of any such Issuers, other than any such party in connection with its role as Property Manager or Special Servicer, will be payable only after payments due to the Noteholders pursuant to the allocation of Series Available Amount below).

 

Subject to the terms and provisions of each Series Supplement, the Available Amount remaining on any Payment Date after payment of Collateral Pool Expenses will be allocated in the following manner and priority (the aggregate amount allocated pursuant to clauses (1), (2), (3), (5) and (6)  below, the “ Series Available Amount ”):

 

(1)                                  to each Series, Note Interest, allocated pro rata , based on all amounts due on such Payment Date to each Series in respect of Note Interest on the Notes, plus all unpaid Note Interest from prior Payment Dates and interest thereon at the applicable Note Rates), an amount equal to such Note Interest, plus unpaid Note Interest from any prior Payment Date (together with interest thereon);

 

(2)                                  so long as no Early Amortization Period is in effect, sequentially:

 

a.                                       to each Series, the Scheduled Principal Payments for such Payment Date, allocated pro rata based on all amounts due on such Payment Date for all Series in respect of Scheduled Principal Payments; and

 

b.                                       to each Series, the Unscheduled Principal Payment for such Payment Date, allocated pro rata based on the applicable Series Principal Balance (in each case after application of the allocations

 

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described in clause (2)(a)  above); provided, however, that any Unscheduled Principal Payments allocated to any Series shall not exceed such related Series Principal Balance;

 

(3)                                  during an Early Amortization Period, to each Series, all remaining Available Amounts, allocated pro rata , based on the Series Principal Balance of the related Notes, all remaining Series Available Amounts, in an amount not to exceed the applicable Series Principal Balance of the Notes;

 

(4)                                  during a DSCR Sweep Period, to the DSCR Reserve Account, all remaining Series Available Amounts until the amount on deposit in the DSCR Reserve Account is equal to the Aggregate Series Principal Balance;

 

(5)                                  to each Series, pro rata, based on the Make Whole Amount to each Series, the applicable Make Whole Amount plus any unpaid Make Whole Amounts from any prior Payment Date;

 

(6)                                  to each Series, pro rata , based on any and all amounts due on such Payment Date for such Series in respect of Post-ARD Additional Interest (if any), as applicable, on the related Notes, and any Deferred Post-ARD Additional Interest, if any, from any prior Payment Date, an amount equal to the Post-ARD Additional Interest with respect to such Series;

 

(7)                                  to the extent not paid as Collateral Pool Expenses, any Issuer Expenses and Extraordinary Expenses related to such Payment Date plus any unpaid Issuer Expenses and Extraordinary Expenses from any prior Payment Date, with interest thereon at the Reimbursement Rate;

 

(8)                                  pro rata , to each Issuer, all remaining Series Available Amounts.

 

The commencement of an Early Amortization Period caused by the occurrence of an event set forth under clause (A) or clause (B) of the definition of “Early Amortization Period” shall be waivable by the Requisite Global Majority.  The occurrence of an event, upon the occurrence of which an Early Amortization Period under clause (C) of the definition of “Early Amortization Period” shall otherwise commence, shall be waivable by the Controlling Parties of all Series of Notes.

 

The Notes are nonrecourse obligations solely of the applicable Issuers and will be payable only from the Collateral included in the Collateral Pool.  Each Noteholder and Note Owner will be deemed to have agreed that they have no rights or claims against the Issuers directly or indirectly and may only look to the Collateral Pool to satisfy any such Issuer’s obligations hereunder.  Each Noteholder and Note Owner will be deemed to have agreed, by its acceptance of its Note or its Ownership Interest therein, not to file or join in filing any petition in bankruptcy or commence any similar proceeding in respect of any applicable Issuer for a period of two years and 31 days following payment in full of the Notes of all Series. Notwithstanding the provisions of this Section 2.11(b) , the Issuers may, subject to Section 9.06 , at any time advance funds to the Indenture Trustee for the purpose of allowing the Indenture Trustee to make required payments on the Notes (“ Issuer Advances ”) without right of reimbursement.

 

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(c)                                   In connection with making any payments pursuant to Section 2.11(b) , the Indenture Trustee shall make available to each Issuer on the related Payment Date via the Indenture Trustee’s internet website specified in Section 6.01(a) , a written statement detailing the amounts so paid; provided , that if such information is not so available on the Indenture Trustee’s internet website for any reason, the Indenture Trustee shall provide each Issuer with such written statement by facsimile transmission, confirmed in writing by first class mail or overnight courier.

 

Section 2.12                             Final Payment Notice .

 

(a)                                  Notice of final payment under Section 2.11(b)  shall be given by the Indenture Trustee as soon as practicable, but not later than two Business Days prior to the Final Payment Date for a Class of any Series, to each Noteholder of such Series as of the close of business on the Record Date in the calendar month preceding the Final Payment Date at such Noteholder’s address appearing in the Note Register and to each applicable Rating Agency and each applicable Issuer.

 

(b)                                  All notices of final payment in respect of a Class of Notes of any Series shall state (i) the Final Payment Date for such Notes, (ii) the amount of the final payment for such Notes and (iii) the place where such Notes are to be surrendered for payment.

 

(c)                                   Notice of final payment of a Class of Notes of any Series shall be given by the Indenture Trustee in the name and at the expense of the Indenture Trustee.  Failure to give notice of final payment, or any defect therein, to any Noteholder of such Series shall not impair or affect the validity of the final payment of any other Note.

 

Section 2.13                             Compliance with Withholding Requirements .

 

Notwithstanding any other provision of this Indenture, the Indenture Trustee shall comply with all federal withholding requirements with respect to payments to Noteholders of interest, original issue discount, or other amounts that the Indenture Trustee reasonably believes are applicable under the Code or any other applicable federal law.  The consent of Noteholders shall not be required for any such withholding.

 

Section 2.14                             Cancellation .

 

The applicable Issuers may at any time deliver to the Note Registrar for cancellation any Notes previously authenticated and delivered hereunder which such Issuers may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly canceled by the Note Registrar.

 

All Notes delivered to the Indenture Trustee for payment shall be forwarded to the Note Registrar.  All such Notes and all Notes surrendered for transfer and exchange in accordance with the terms hereof shall be canceled and disposed of by the Note Registrar in accordance with its customary procedures.

 

Section 2.15                             Reserved .

 

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Section 2.16                             The Hedge Agreements .

 

(a)                                  On any Series Closing Date, the applicable Issuers may enter into one or more Hedge Agreements with respect to any Class of any related Series of Notes.

 

(b)                                  The Indenture Trustee shall, on behalf of the applicable Issuers, distribute amounts due to each Hedge Counterparty under the applicable Hedge Agreements on any Payment Date from the Payment Account in accordance with Section 2.11 and the applicable Series Supplement.

 

(c)                                   The Indenture Trustee shall agree to any reduction in the notional amount of any Hedge Agreement requested by the applicable Issuers; provided , that, if any Notes are then Outstanding and rated by the Rating Agencies, the Indenture Trustee shall first have received the written confirmation that the Rating Condition is satisfied. Any amount paid by a Hedge Counterparty to the applicable Issuers in connection with such reduction shall constitute part of the Available Amount except as otherwise provided in the applicable Series Supplement.

 

(d)                                  Each Hedge Agreement (unless otherwise provided in the applicable Series Supplement) shall permit the complete or partial termination thereof (without the payment by the applicable Issuers of penalties or fees other than termination-related expenses) by the applicable Issuers subject to the provision of at least ten (10) Business Days notification to the Rating Agencies. The Indenture Trustee shall, prior to each applicable Series Closing Dates if required by the applicable Series Supplement, establish at Citibank, N.A. (or at such other financial institution as provided in the applicable Series Supplement and as necessary to ensure that the Hedge Counterparty Account is at all times an Eligible Account or a sub-account of an Eligible Account) a segregated trust account that shall be designated as a “ Hedge Counterparty Account ”, in its name, as Indenture Trustee, bearing a designation clearly indicating that such account and all funds deposited therein are held for the exclusive benefit of the applicable Noteholders, over which the Indenture Trustee shall have exclusive control and the sole right of withdrawal, and in which neither the applicable Issuers nor any other Person shall have any legal or beneficial interest.  The Hedge Counterparty Accounts may be sub-accounts of the Payment Account.  The only permitted withdrawal from or application of funds on deposit in, or otherwise to the credit of, a Hedge Counterparty Account shall be for application to obligations of the applicable Hedge Counterparty to the applicable Issuers under the related Hedge Agreement.

 

(e)                                   In the event a Responsible Officer of the Indenture Trustee becomes aware that a Hedge Counterparty has defaulted in the payment when due of its obligations to the applicable Issuers under the related Hedge Agreement, the Indenture Trustee shall make a demand on such Hedge Counterparty, or any guarantor, if applicable, demanding payment by 12:30 p.m., New York City time, on such date (or by such time on the next succeeding Business Day if such actual knowledge is obtained by such Responsible Officer of the Indenture Trustee after 11:00 a.m., New York City time).  The Indenture Trustee shall give notice to the applicable Noteholders upon the continuing failure by such Hedge Counterparty to perform its obligations during the two Business Days following a demand made by the Indenture Trustee on such Hedge Counterparty.

 

(f)                                    If at any time a Hedge Agreement becomes subject to early termination due to the occurrence thereunder of an event of default or a termination event, the applicable Issuers and the Indenture Trustee shall take such actions (following the expiration of any

 

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applicable grace period and after the expiration of the two Business Day period referred to in Section 2.16(e) , as applicable) to enforce the rights of the applicable Issuers and the Indenture Trustee thereunder as may be permitted by the terms of such Hedge Agreement and consistent with the terms hereof, and shall apply the proceeds of any such actions (including, without limitation, the proceeds of the liquidation of any collateral pledged by the related Hedge Counterparty) to enter into a replacement Hedge Agreement on such terms or provide such other substitute arrangement (or forebear from doing either of the foregoing) as provided in the applicable Series Supplement. Any costs attributable to entering into a replacement Hedge Agreement which exceed the aggregate amount of the proceeds of the liquidation of the terminated Hedge Agreement shall constitute Issuer Expenses payable under Section 2.11(b) . In addition, the applicable Issuers will use their best efforts to cause the termination of a Hedge Agreement to become effective simultaneously with the entry into a replacement Hedge Agreement described as aforesaid.

 

(g)                                   The applicable obligations under a Hedge Agreement must be non-recourse obligations of the applicable Issuers payable only to the extent of available funds in accordance with Section 2.11(b) . In addition, the provisions under each Hedge Agreement shall provide that the related Hedge Counterparty shall not institute against, or join any other person or entity in instituting against, any of the Issuers, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceedings under any federal or state bankruptcy or similar law (including the U.S. Bankruptcy Code), for two years and 31 days after the last Note issued by the Issuers is paid in full, and that the agreements in such provisions shall survive termination of such Hedge Agreement.

 

Section 2.17                             Tax Treatment of the Notes .

 

The Issuers have entered into this Indenture, and each Class of Notes will be issued, with the intention that, for purposes of any federal, state and local income or franchise tax and any other taxes imposed on or measured by income, such Notes will qualify as indebtedness (unless otherwise provided in the applicable Series Supplement) upon their issuance for federal income tax purposes.  The Issuers, by entering into this Indenture, each Noteholder, by acceptance of its Note, and each Note Owner, by purchasing or otherwise acquiring an Ownership Interest in a Note, agree to treat the Notes and such Ownership Interests for purposes of any federal, state and local income or franchise tax and any other taxes imposed on or measured by income, as indebtedness (unless otherwise provided in the applicable Series Supplement) upon their issuance for federal income tax purposes.

 

Section 2.18                             DSCR Reserve Account .

 

(a)                                  On or prior to the date hereof, the Indenture Trustee shall establish and maintain at Citibank, N.A. one or more segregated trust accounts (collectively, the “ DSCR Reserve Account ”), in its name, as Indenture Trustee, bearing a designation clearly indicating that such account and all funds deposited therein are held for the exclusive benefit of the Noteholders and the Issuers as their interests may appear. At all times, the DSCR Reserve Account shall be an Eligible Account or a sub-account of an Eligible Account.

 

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(b)                                  The Indenture Trustee shall deposit or cause to be deposited in the DSCR Reserve Account during any DSCR Sweep Period the amount allocated for such purpose pursuant to Section 2.11(b) . Except as provided in this Indenture, the Indenture Trustee, in accordance with the terms of this Indenture, shall have exclusive control and sole right of withdrawal with respect to the DSCR Reserve Account. Funds in the DSCR Reserve Account shall not be commingled with any other moneys. All moneys deposited from time to time in the DSCR Reserve Account shall be held by and under the control of the Indenture Trustee in the DSCR Reserve Account for the benefit of the Noteholders and the Issuers as herein provided.

 

 

(c)                                   All amounts in the DSCR Reserve Account shall remain uninvested.

 

(d)                                  Upon the termination of a DSCR Sweep Period, the Indenture Trustee shall remit such amounts to the Payment Account for application as Available Amount (other than as Unscheduled Proceeds) by the Indenture Trustee in accordance with Section 2.11(b) . During an Early Amortization Period, the Indenture Trustee shall apply all amounts on deposit in the DSCR Reserve Account as Unscheduled Principal Payments and allocate such amounts to all Series in accordance with Section 2.11(b)  on the related Payment Date.  On the Rated Final Payment Date of any Class of Notes, the Indenture Trustee shall transfer all amounts on deposit in the DSCR Reserve Account on such date to the Payment Account to be applied in accordance with Section 2.11(b) .

 

Section 2.19                             Representations and Warranties with Respect to the Issuers .

 

Except as otherwise provided in any applicable Series Supplement, each applicable Issuer hereby represents and warrants to the other parties hereto, as of the applicable Series Closing Date, as follows:

 

(a)                                  Such Issuer is a limited liability company duly created and validly existing in good standing under the laws of the State of Delaware and has full power, authority and legal right to execute and deliver the Indenture and the other Transaction Documents to which such Issuer is a party and to perform its obligations under the Indenture and the other Transaction Documents to which it is a party.

 

(b)                                  The execution and delivery by such Issuer of the Indenture and the performance by such Issuer of its obligations under the Indenture and the other Transaction Documents to which such Issuer is a party has been duly and validly authorized and directed and does not violate the applicable Limited Liability Company Agreement, nor does such execution, delivery or performance require the authorization, consent or approval of, the giving of notice to, the filing or registration with, or the taking of any other action by, any arbitrator, court or other Governmental Authority or conflict with, or result in a breach or violation of, any provision of any law or regulation governing such Issuer or any order, writ, judgment or decree of any arbitrator, court or other Governmental Authority applicable to such Issuer or any of its assets, any indenture, mortgage, deed of trust, partnership agreement or other agreement or instrument to which such Issuer is a party or by which such Issuer or any portion of the Collateral is a party or by which such Issuer or all or any portion of the Collateral is bound, which breach or violation would materially adversely affect either the ability of such Issuer to perform its obligations under

 

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the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any Property as security for the Notes.

 

(c)                                   Such Issuer has requisite power and authority to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged. Such Issuer is duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified in connection with the applicable Properties and Mortgage Loans, its business and operations. Such Issuer possesses all rights, licenses, permits and authorizations, governmental or otherwise, necessary to entitle it to own the applicable Properties and Mortgage Loans and to transact the businesses in which it is now engaged, the failure of which to obtain would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any such Property or Mortgage Loans as security for the Notes. The sole business of such Issuer is as set forth in the applicable Limited Liability Company Agreement.

 

(d)                                  The Indenture and the other Transaction Documents have been duly executed and delivered by such Issuer and, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.

 

(e)                                   Such Issuer has no employee benefit plans and is not required to make any contributions to any Plans.

 

(f)                                    Such Issuer (a) has not entered into the Indenture or any of the other Transaction Documents with the actual intent to hinder, delay, or defraud any creditor and (b) has received reasonably equivalent value in exchange for its obligations under the Indenture. Giving effect to the applicable Series of Notes, the fair saleable value of all Issuers’ assets exceed and will, immediately following the execution and delivery of the Transaction Documents, exceed the Issuers’ total liabilities, including, without limitation, subordinated, unliquidated, disputed or contingent liabilities. The fair saleable value of the Issuers’ assets is and will, immediately following the execution and delivery of the Transaction Documents, be greater than the Issuers’ probable liabilities, including the maximum amount of their contingent liabilities or debts as such debts become absolute and matured. The Issuers’ assets do not and, immediately following the execution and delivery of the Transaction Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Such Issuer does not intend to, and does not believe that it will, incur debts and liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Issuer).

 

(g)                                   Such Issuer is not: (a) an “investment company” or a company “controlled” by an “investment company,” within the meaning of the 1940 Act; (b) relying upon Section 3(c)(1) or Section 3(c)(7) of the 1940 Act as a basis for not registering under the 1940

 

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Act; (c) required to be registered under the 1940 Act because of an exclusion or exemption from the definition of “investment company” contained in Section 3(c)(5) of the 1940 Act, although there may be additional exclusions or exemptions available to the such Issuer; (d) a “covered fund” under the so-called Volcker Rule under the Dodd-Frank Wall Street Reform and Consumer Protection Act; (e) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (f) subject to any other federal or state law or regulation which prevents such Issuer from entering into the Indenture; the Indenture is not required to be qualified under the 1939 Act.

 

(h)                                  The Transaction Documents and the applicable Private Placement Memorandum (as defined in the applicable Series Supplement) do not contain any untrue statement of a material fact or omit to state any material fact necessary to make statements contained herein or therein not misleading.

 

(i)                                      The applicable Series of Notes, the Indenture, the other Transaction Documents and the organizational documents of such Issuer are not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor would the operation of any of the terms of such Series of Notes, the Indenture, any of the other Transaction Documents or the organizational documents of such Issuer, or the exercise of any right thereunder, render the Indenture unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury.

 

(j)                                     The Indenture is in full force and effect and no Event of Default or violation under the Indenture or any of the other Transaction Documents or the organizational documents of such Issuer by any party thereunder has occurred and is continuing.

 

(k)                                  Neither such Issuer nor any of its constituent Persons are contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency laws or the liquidation of all or a major portion of such Issuer’s assets or property, and such Issuer has no knowledge of any Person contemplating the filing of any such petition against it or such constituent Persons.

 

(l)                                      Such Issuer is not a “foreign person” within the meaning of Section 1445(0(3) of the Code and the related Treasury Regulations, including temporary regulations.

 

(m)                              Such Issuer does not own any asset or property other than the applicable Mortgage Loans, Properties and related Leases.

 

(n)                                  Such Issuer has not incurred any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), that has not been repaid in full, other than (i) the Notes, and (ii) trade and operational debt incurred in the ordinary course of business with trade creditors and in amounts as are normal and reasonable under the circumstances.

 

(o)                                  Such Issuer has not made any loans or advances to any third party (including any Affiliate or constituent party or any Affiliate of any constituent party).

 

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(p)                                  Such Issuer has done or caused to be done all things necessary to observe organizational formalities and preserve its existence.

 

(q)                                  Such Issuer has maintained its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any Affiliate of any constituent party, or any other Person.

 

(r)                                     Such Issuer has not guaranteed, become obligated for, pledged its assets as security for, or held itself out to be responsible for the debts or obligations of any other Person or the decisions or actions respecting the daily business or affairs of any other Person, except for (a) guarantees or pledges from which such Issuer has been released or (b) the Notes.

 

(s)                                    All of the assumptions made in any applicable substantive non-consolidation opinion letter dated the date hereof, delivered by Kutak Rock LLP in connection with the Notes and any subsequent non-consolidation opinion delivered on behalf of such Issuer as required by the terms and conditions of the Indenture (the “ Insolvency Opinion ”), including, but not limited to, any exhibits attached thereto, are true and correct in all material respects. Each Person other than such Issuer, if any, with respect to which an assumption is made in the applicable Insolvency Opinion has complied with all of the assumptions made with respect to it in such Insolvency Opinion.

 

(t)                                     Upon the issuance of the applicable Series of Notes, the Indenture Trustee has a valid and enforceable first priority perfected lien or perfected security interest, as applicable, in the Collateral, subject only to Permitted Encumbrances.

 

(u)                                  As of the date hereof, each applicable Series Closing Date and at all times throughout the term of the Notes, (i) none of the funds or other assets of such Issuer constitute property of, or are beneficially owned, directly or indirectly, by any Person, entity or government subject to trade restrictions under U.S. law, including but not limited to, the USA PATRIOT Act (including the anti-terrorism provisions thereof), the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law (such person, an “ Embargoed Person ”), (ii) no Embargoed Person has any interest of any nature whatsoever in such Issuer, with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law, and (iii) none of the funds of such Issuer have been derived from any lawful activity with the result that the investment in such Issuer (whether directly or indirectly) is prohibited by law or the Notes are in violation of law.

 

(v)                                  No part of the proceeds of the Notes will be used for the purpose of purchasing or acquiring any “margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governor’s, or for any purposes prohibited by Legal Requirements or by the terms and conditions of the Indenture or the other Transaction Documents.

 

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Section 2.20                             Representations and Warranties With Respect To Properties and Leases .

 

Except as set forth in Schedule I of the applicable Series Supplement, each of the applicable Issuers shall make the following representations and warranties and the representations and warranties set forth in Exhibit A of such Series Supplement, as of the applicable Series Closing Date, Transfer Date, Post-Closing Acquisition Date or Master Lease Addition Date, as applicable, with respect to the Properties and Leases indicated in such Series Supplement or otherwise added to the Collateral Pool by such Issuer in connection with the issuance of any Series of Notes or as Qualified Substitute Properties, Qualified Substitute Hybrid Leases, Post-Closing Properties or Additional Master Lease Properties:

 

(a)                                  There are no pending actions, suits or proceedings, arbitrations or governmental investigations against such Issuer or the related Properties, an adverse outcome of which would materially affect (i) such Issuer’s performance under the Notes, the Indenture (including any applicable Series Supplement) or the other Transaction Documents to which it is a party, or the use of such Properties for the use currently being made thereof, the operation of such Properties as currently being operated or the value of such Properties or (ii) the collectability or enforceability of the Mortgages with respect to such Properties or the related Leases.

 

(b)                                  Such Issuer has good, marketable (or with respect to the related Properties located in Texas, indefeasible) and insurable title to each Property and good title to the balance of such Property, and has the full power, authority and right to deed, encumber, mortgage, give, grant, bargain, sell, alienate, setoff, convey, confirm, pledge, assign and hypothecate the same and such Issuer possesses an unencumbered fee estate, or ground lease interest, in each Property and the Improvements thereon (other than the Improvements with respect to a Hybrid Lease) and it owns each Property free and clear of all liens, encumbrances and charges whatsoever except for Permitted Encumbrances and each Mortgage is a valid, enforceable and continuing first lien on and security interest in the applicable Property, subject only to said Permitted Encumbrances.

 

(c)                                   The Permitted Encumbrances do not materially and adversely affect (i) the ability of such Issuer to pay in full the principal and interest on the Notes in a timely manner or (ii) the use of the related Properties for the use currently being made thereof or the operation of such Properties as currently being operated.

 

(d)                                  Upon the execution by such Issuer and the recording of each Mortgage, and upon the execution and proper filing of UCC Financing Statements (if required by a jurisdiction to perfect the security interest set forth in the Mortgage), the Indenture Trustee will have a valid first lien on the related Properties and a valid security interest in such Issuer’s interest in the “Equipment” (as defined in the Mortgages), if any, subject to no liens, charges or encumbrances other than the Permitted Encumbrances.

 

(e)                                   Each Property is covered by an ALTA (or an equivalent form thereof as adopted in the applicable jurisdiction) Title Insurance Policy, in an amount at least equal to the initial Appraised Value of such Property, issued during the six (6) months after the date of acquisition thereof. The Title Insurance Policy insures, as of the date of such policy (or any date-down endorsement to such policy), that the related Mortgage is a valid first lien on the fee or

 

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leasehold interest in such Property subject only to the Permitted Encumbrances (to the extent stated therein); such Title Insurance Policy is in full force and effect and names the Collateral Agent as the mortgagee of record; such Title Insurance Policy is assignable to assignees of the insured in accordance with its terms.  All premiums for the Title Insurance Policy have been paid and no material claims have been made hereunder. The Title Insurance Policy has been issued by a company licensed to issue such policies in the state in which such Property is located.

 

(f)                                    The related Properties have adequate rights of access to public ways and are served by adequate water, sewer, sanitary sewer and storm drain facilities. Except as disclosed in surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, all public utilities necessary to the continued use and enjoyment of such Properties as presently used and enjoyed are located in the public right-of-way abutting such Property or an adjacent mortgaged property, and all such utilities are connected so as to serve such Properties, directly from such public right-of-way, through such adjacent mortgaged property or through valid easements insured under the Title Insurance Policies. All roads necessary for the current utilization of such Properties have been completed and dedicated to public use and accepted by all Governmental Authorities or are the subject of access easements for the benefit of the applicable Property or an adjacent mortgaged property.

 

(g)                                   Except as disclosed in the Title Insurance Policies, to the knowledge of such Issuer, there are no material pending or proposed special or other assessments for public Improvements or otherwise affecting the related Properties, nor, to the knowledge of such Issuer, are there any contemplated Improvements to such Properties that may result in such special or other assessments.

 

(h)                                  There are no delinquent or unpaid Taxes affecting any Property which are or may become a lien of priority equal to or higher than the lien of the related Mortgage. For purposes of the representation and warranty, Taxes shall not be considered unpaid until the date on which interest and/or penalties would be payable thereon.

 

(i)                                      Each related Property is free and clear of any recorded mechanics’ and recorded materialmen’s liens or liens in the nature thereof which would materially and adversely affect the value of such Property.

 

(j)                                     No material Improvements on any Property are located in an area designated as Flood Zone A or Flood Zone V by the Federal Emergency Management Agency or otherwise located in a flood zone area as identified by the Federal Emergency Management  Agency as a 100 year flood zone or special hazard area, except as may be shown on the surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, for which Properties such Issuer has caused the Tenant under the related Lease to obtain flood insurance in accordance with the provisions of the Property Management Agreement;

 

(k)                                  All material certifications, permits, licenses and approvals, including, without limitation, certificates of completion and occupancy permits required for the legal use, occupancy and operation of the related Properties (collectively, the “ Licenses ”) currently being operated have been obtained and are in full force and effect except to the extent the failure of any such License to be in full force and effect would not have a material adverse effect on such

 

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Issuer or the use and operation of any Property. The related Properties are free of material damage and are in good repair in all material respects, and there is no proceeding pending or to the knowledge of such Issuer, is threatened or contemplated, for the total or material partial condemnation of, or affecting, such Properties, or for the relocation of roadways providing access to any Property.

 

(l)                                      Except as illustrated on surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, all of the material Improvements which were included in determining the Appraised Value of each Property lie wholly within the boundaries and building restriction lines of such Property except to the extent such Improvements may encroach upon an adjoining Property, and no improvements on adjoining properties, other than an adjoining Property, encroach materially upon any property, and no easements or other encumbrances upon a Property encroach materially upon any of the Improvements, so as to affect the value or marketability of any Property, except those which are insured against by the Title Insurance Policies. Except as set forth on reports and surveys delivered to the Indenture Trustee in connection with the issuance of the Notes, all of the Improvements comply with all material requirements of any applicable zoning and subdivision laws and ordinances.

 

(m)                              In connection with the acquisition of each Property, such Issuer inspected or caused to be inspected such Property by (i) appraisal inspection performed by an independent, third party Member of the Appraisal Institute appraiser and (ii) by a property condition engineer or (iii) otherwise as required by STORE Capital’s underwriting guidelines then in effect; the related Lease File or Loan File, as applicable, contains a survey with respect to such Property, which survey was deemed sufficient to delete the standard title survey exception (to the extent the deletion of such exception is available in the related state).

 

(n)                                  The related Properties are in compliance in all material respects with all Recorded Covenants and all Legal Requirements, including, without limitation, building and zoning ordinances and codes, the failure of which to comply with the same would result in a material adverse effect on either the ability of such Issuer to perform its obligations under the Indenture (including such applicable Series Supplement) and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any related Property as security for the Notes.

 

(o)                                  No fraudulent acts were committed by STORE Capital or such Issuer during the origination process with respect to each such Lease; and, there has not been committed by such Issuer or any other Person in occupancy of or involved in the operation or use of the related Properties any act or omission affording the federal government or any state or local government the right of forfeiture as against such Properties or any part thereof or any moneys paid in performance of such Issuer’s obligations under any of the Transaction Documents.

 

(p)                                  Such Issuer is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which such Issuer or any of the related Properties are bound, which default would materially adversely affect either the ability of such Issuer to perform its obligations under the Indenture (including such applicable Series

 

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Supplement) and the other Transaction Documents to which it is a party or the financial condition of such Issuer or the value of any related Property as security for the Notes.

 

(q)                                  All financial data that have been delivered to the Indenture Trustee in respect of the related Properties, including, to such Issuer’s knowledge, any such data relating to Tenants under Leases, (i) are true, complete and correct in all material respects, (ii) accurately represent the financial condition of such Properties as of the date of such reports and (iii) to the extent prepared or audited by an independent certified public accounting firm, have been prepared in accordance with GAAP throughout the periods covered, except as disclosed therein; provided, however, that it is expressly understood by each party hereto that any cost estimates, projections and other predictions contained in such data are not deemed to be representations of such Issuer. Since the date of such financial statements, there has been no materially adverse change in the financial condition, operations or business of such Issuer from that set forth in said financial statements.

 

(r)                                     Each Property is comprised of one (1) or more parcels, which constitute a separate tax lot or lots, and does not constitute a portion of any other tax lot not a part of such Property or is subject to an endorsement under the related Title Policy insuring the Property, or in certain cases, an application has been made to the applicable governing authority for creation of separate tax lots, in which case an escrow amount sufficient to pay taxes for the existing tax parcel of which the Property is a part will be required until the separate tax lots are created.

 

(s)                                    The operation of any of the terms of the related Lease, or the exercise of any rights thereunder, does not render the Lease unenforceable, in whole or in part, or subject to any right of rescission, set-off, abatement, diminution, counterclaim or defense.

 

(t)                                     Except as set forth on a schedule to the applicable Series Supplement, each Property (1)  is free of any damage that would materially and adversely affect the use or value of such Property and (2) in good repair and condition so as not to materially and adversely affect the use or value of such Property; and all improvements contained on such Property are in good working order so as not to materially and adversely affect the use or value of such Property.

 

(u)                                  Except as set forth on a schedule to the applicable Series Supplement, in connection with each Property with respect to which a Lease Guarantor has executed a Lease Guaranty with respect to all payments due under the related Lease:

 

(i)                                such Lease Guaranty is in full force and effect and, to such Issuer’s knowledge, there are no defaults by the related Lease Guarantors thereunder;

 

(ii)                             such Lease Guaranty, on its face, (1) contains no conditions to such payment, other than a notice and right to cure; (2) provides that it is the guaranty of both the performance and payment of the financial obligations of the Tenant under the Lease; and (3) does not provide that the rejection of the Lease in a bankruptcy or insolvency of the Tenant shall affect the related Lease Guarantor’s obligations under such Lease Guaranty; and

 

(iii)                          such Lease Guaranty is binding on the successors and assigns of the related Lease Guarantor and inures to the benefit of the lessor’s successors and

 

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assigns; such Lease Guaranty cannot be released or amended without the lessor’s consent or unless a predetermined performance threshold is achieved or a predetermined period of time has elapsed.

 

(v)                                  Except as set forth on a schedule to the applicable Series Supplement:

 

(i)                                the related Properties are not subject to any Leases other than the Leases (and the subleases and assignments as permitted thereunder) described in the Owned Property Schedule attached to the applicable Series Supplement and made a part hereof. No Person has any possessory interest in any Property or right to occupy the same except under and pursuant to the provisions of the Leases and subleases or assignments permitted thereunder. The current Leases are in full force and effect and there are no material defaults thereunder by such Issuer or any Tenant. No rent (including security deposits) has been paid more than one (1) month in advance of its due date. All material work to be performed by such Issuer under each Lease has been performed as required and has been accepted by the applicable Tenant, and any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by such Issuer to any Tenant has already been received by such Tenant. There has been no prior sale, transfer or assignment from such Issuer of any Property or Leases in the Collateral or hypothecation or pledge of any Lease or of the rents received therein, except for such hypothecations or pledges that have been released. Except as permitted under the Leases, no Tenant listed on the Owned Property Schedule attached to the applicable Series Supplement has assigned its Lease and no such Tenant holds its leased premises under assignment or sublease. Such Owned Property Schedule to the applicable Series Supplement sets forth a true and correct list of each Property that is subject to a Third Party Purchase Option or an option to terminate such Lease prior to the Rated Final Payment Date, together with the earliest date on which each such option may be exercised;

 

(ii)                             the Tenant under each Lease is in possession and paying rent pursuant to the applicable Lease; such Issuer is the owner of the lessor’s interest in each Lease; the Tenant is required to make rental payments as directed by such Issuer, as lessor, and its successors and assigns;

 

(iii)                          each Tenant has all material licenses, permits, material agreements, including, but not limited to franchise agreements, if applicable, necessary for the operation and continuance of such Tenant’s business on the related Property; no Issuer has received notice of any Tenant in default of such Tenant’s obligations under any such applicable license, permit or agreement, which default would materially and adversely affect its business operations on the subject Property; and no Issuer has received notice of a material default under any applicable franchise or operating agreement;

 

(iv)                         neither such Issuer nor to such Issuer’s knowledge, any Tenant is the subject of any bankruptcy or insolvency proceeding;

 

(v)                            there are no pending actions, suits or proceedings by or before any court or Governmental Authority against or affecting such Issuer, or, to such Issuer’s

 

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knowledge, the related Properties or any Tenant that, if determined adverse to such Issuer or any Property or any Tenant, would materially and adversely affect the value of any Property, the ability of such Issuer to pay principal, interest or any other amounts due under the Notes, or the ability of any Tenant to pay any amounts due under the applicable Lease;

 

(vi)                         the obligations of the related Tenant under the Lease, including, but not limited to, the obligation of Tenant to pay rent, are not affected by reason of: (i) any damage to or destruction of any portion of a related Property, except damage to such Property caused by casualty in the last twelve (12) or twenty-four (24) months of the lease term or substantial damage to the leased property such that the improvements cannot be repaired so as to allow Tenant to conduct a substantial part of its business within a specified time period ranging from one hundred eighty (180) days to one (1) year; (ii) any taking of such Property, except a total condemnation and taking of the leased property or a partial condemnation and taking that renders the leased property unsuitable for the continuation of Tenant’s business; (iii) any prohibition, limitation, interruption, cessation, restriction, prevention or interference of Tenant’s use, occupancy or enjoyment of such Property, except with respect to certain abatement rights in connection with casualty and condemnation which may be provided for under the related Lease;

 

(vii)                      every obligation associated with owning, developing and operating the Property, including, but not limited to, the costs associated with utilities, taxes, insurance, capital and structural improvements, maintenance and repairs is an obligation of Tenant;

 

(viii)                   such Issuer, as lessor under the Lease, does not have any material monetary or non-monetary obligations under the Lease and has made no representation or warranty under the Lease, the breach of which would result in the abatement of rent, a right of setoff or termination of the Lease;

 

(ix)                         except as otherwise provided in the related Lease, the Tenant may not assign or sublease the Property without the consent of such Issuer, and in the event the Tenant sublets the leased property, the Tenant remains primarily obligated under the Lease.

 

(x)                            the Tenant has agreed to indemnify such Issuer, as lessor under the Lease, from any claims of any nature relating to the Lease and the related Property other than the lessor’s gross negligence or willful misconduct, including, without limitation, arising as a result of violations of Environmental Laws resulting from the Tenant’s operation of the property;

 

(xi)                         any obligation or liability imposed by any easement or reciprocal easement agreement is an obligation of Tenant, and such Issuer has no liability to Tenant for performance of the same;

 

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(xii)                      the Tenant under a Lease or related ancillary document (which document does not negate other representations and warranties set forth herein) is required to make rental payments to such Issuer, as lessor, and its successor and assigns);

 

(xiii)                   pursuant to the terms of each Lease, each Lease is automatically subordinate to the related Mortgage, and to the extent the terms of a Lease do not include such automatic subordination language, the Issuer, as lessor, and related Tenant have executed a subordination, non-disturbance, and attornment agreement;

 

(xiv)                  except for certain rights of first offer or rights of first refusal set forth in certain Leases, the Lease is freely assignable by the lessor and its successor and assigns (including, but not limited to, the Indenture Trustee, which acquires title to a Property by foreclosure or otherwise) to any person without the consent of the Tenant, and in the event the lessor’s interest is so assigned, the Tenant is obligated to recognize the assignee as lessor under such Lease, whether under the Lease or by operation of law; and

 

(xv)                     the Tenant has not been released, in whole or in part, from its obligations under the terms of the Lease.

 

(w)                                With respect to any Property and Lease originated or acquired after the Series Closing Date, including with respect to any Qualified Substitute Properties, Qualified Substitute Hybrid Leases, Post-Closing Properties or Additional Master Lease Properties purchased or substituted by such Issuer from a third party (subject to exceptions scheduled and set forth in the related Purchase and Sale Agreement, if applicable), such Property and Lease are required to be originated or acquired pursuant to the terms and provisions of the Indenture and the Property Management Agreement in accordance with the related underwriting guidelines.

 

(x)                                  All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the transfer of the related Properties to such Issuer have been paid. All mortgage, mortgage recording, stamp, intangible or other similar tax required to be paid by any Person under applicable Legal Requirements currently in effect in connection with the execution, delivery, recordation, filing, registration, perfection or enforcement of any of the Transaction Documents, including, without limitation, the Mortgages, have been paid, and, under current Legal Requirements, each of the Mortgages is enforceable in accordance with their respective terms by the Indenture Trustee (or any subsequent holder thereof).

 

(y)                                  To such Issuer’s knowledge, except as disclosed in the environmental reports delivered to the Custodian in connection with the issuance of the Notes, in all material respects: (a) no Property is in violation of any Environmental Laws; (b) no Property is subject to any private or governmental lien or judicial or administrative notice or action or inquiry, investigation or claim relating to Hazardous Substances; (c) no Hazardous Substances are or have been (including the period prior to such Issuer’s acquisition of each Property) released, discharged, generated, treated, disposed of or stored on, incorporated in, or removed or transported from each Property other than in material compliance with all Environmental Laws, or

 

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for which have been addressed and received regulatory closure from applicable government agencies; and (d) no Hazardous Substances other than Permitted Materials, are present in, on or under any nearby real property which could migrate to or otherwise affect each Property.

 

(z)                                   To such Issuer’s knowledge, no Asbestos is located on any Property except as may have been disclosed in the environmental reports delivered to the Custodian in connection with the issuance of the Notes.

 

(aa)                           No portion of the related Properties has been purchased or leased with proceeds of any illegal activity.

 

(bb)                           Each Qualified Substitute Property satisfies the requirements set forth in the definition of Qualified Substitute Property.

 

(cc)                             Each Post-Closing Property satisfies the requirements set forth in the definition of Post-Closing Property.

 

Section 2.21                             Representations and Warranties With Respect To Mortgage Loans and Loan Components of Hybrid Leases .

 

Except as set forth in Schedule I of the applicable Series Supplement, each of the applicable Issuers shall make the following representations and warranties and the representations and warranties set forth in Exhibit A of such Series Supplement, as of the applicable Series Closing Date or Transfer Date, with respect to the Mortgage Loans and each loan component of a Hybrid Lease indicated in such Series Supplement or otherwise added to the Collateral Pool by such Issuer in connection with the issuance of any Series of Notes or as Qualified Substitute Loans or, with respect to the related loan component, as Qualified Substitute Hybrid Leases, Post-Closing Properties or Additional Master Lease Properties; provided, however, that, references to “Mortgage Loan,” “Loan,” “Loan Documents,” “Loan File,” “Borrower,” “Mortgage,” “Mortgage Note” and any other terms relating to the Mortgage Loans used in this Section 2.21 shall be construed to relate to the loan components of a Hybrid Lease, the related documents, files, borrowers, mortgages, mortgage notes and other related concepts, each, as applicable, each associated with a Hybrid Lease:

 

(a)                                  Immediately prior to the transfer and assignment of the Mortgage Loan to such Issuer, the Originator had good title to, and was the sole owner and holder of, the Mortgage Loan, free and clear of any and all liens, encumbrances and other interests on, in or to the Mortgage Loan.  Such transfer and assignment from the Originator to such Issuer of the Mortgage Loan by collateral assignment and by individual allonges of the Mortgage Notes and assignments of the Mortgages in blank legally and validly assigns all of the Originator’s right, title and ownership of the Mortgage Loan to such Issuer (and, with respect to the Mortgage, to the Collateral Agent) free and clear of any pledge, lien, encumbrance or security interest.

 

(b)                                  Such Issuer has full right and authority to own and possess the Mortgage Loan.  The entire agreement with the related Originator (whether originated by the Originator or a different originator) is contained in the related Loan Documents and there are no warranties, agreements or options regarding such Mortgage Loan or the related Property not set forth

 

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therein.  Other than the Loan Documents, there are no agreements between any predecessor in interest in the Mortgage Loan and the Borrower.

 

(c)                                   The information pertaining to the Mortgage Loan set forth in the mortgage loan schedule attached to the related Purchase and Sale Agreement was true and correct in all material respects as of the related transfer date.  The Mortgage Loan was originated or acquired in accordance with, and fully complies with, STORE Capital’s underwriting guidelines then in effect in all material respects.  All documents comprising the Loan File have been delivered to the Custodian, on behalf of the Indenture Trustee, with respect to each Mortgage Loan by the Related Series Closing Date.  The related Loan File contains all of the documents and instruments required to be contained therein.

 

(d)                                  Financing Statements have been filed and/or recorded (or, if not filed and/or recorded, have been submitted in proper form for filing and recording), in all public places necessary to perfect a valid first priority security interest in all items of personal property defined as part of the Property and in all cases, subject to a purchase money security interest and to the extent perfection may be effected pursuant to applicable law solely by recording or filing Financing Statements.

 

(e)                                   With respect to each Loan, the related Mortgage constitutes a valid, legally binding and enforceable first priority lien upon the related Property and a fee or leasehold interest in the improvements located thereon and forming a part thereof, prior to all other liens and encumbrances, except for Permitted Encumbrances.  The lien of the Mortgage is insured by a Title Insurance Policy, issued by a nationally recognized title insurance company, insuring the originator of the Loan, its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan after all advances of principal, subject only to Permitted Encumbrances (or, if a Title Insurance Policy has not yet been issued in respect of the Loan, a policy meeting the foregoing description is evidenced by a commitment for title insurance “marked up” (or by “pro-forma” otherwise agreed to in a closing instruction letter countersigned by the title company) as of the closing date of the Loan).  Each Title Insurance Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no material claims have been made thereunder and no claims have been paid thereunder.  Neither the Originator nor the applicable Issuer has, by act or omission, done anything that would materially impair the coverage under such Title Insurance Policy.  Each Title Insurance Policy contains no exclusion for, or affirmatively insures (except for any Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the area shown on the survey is the same as the property legally described in the Mortgage and (b) to the extent that the Property consists of two or more adjoining parcels, such parcels are contiguous.  Immediately following the transfer and assignment of the Mortgage Loan to the applicable Issuer, such Title Insurance Policy (or, if it has yet to be issued, the coverage to be provided thereby) inures to the benefit of such Issuer without the consent of or notice to the insurer.

 

(f)                                    Neither the Originator nor such Issuer has waived any material default, breach, violation or event of acceleration existing under the Mortgage or Mortgage Note.

 

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(g)                                   The Borrower has not waived any material default, breach, violation or event of acceleration by any Tenant existing under a related Lease.

 

(h)                                  There is no valid offset, defense, counterclaim or right of rescission to the payment or performance obligations of the Loan.

 

(i)                                      The related Property is free and clear of any damage that would materially and adversely affect its value as security for the Loan.  No proceeding for the condemnation of all or any material portion of such Property has been commenced.

 

(j)                                     An engineering report was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the origination by, or transfer to, an Issuer in connection with the Series Closing Date or Related Series Closing Date immediately following such origination, which indicates that each related Property (a) is free and clear of any material damage, (b) is in good repair and condition, (c) to the extent any damage is noted in the report, the related Borrower is required to repair same within a commercially reasonable time frame subject to the terms and provisions of the related Loan, and (d) is free of structural defects, except to the extent of any damage or deficiencies that would not materially and adversely affect the use, operation or value the Mortgage Property.  No proceeding for the condemnation of all or any material portion of such Property has been commenced or threatened.

 

(k)                                  The proceeds of the Mortgage Loan have been fully disbursed and there is no requirement for future advances thereunder.  All costs, fees and expenses incurred in making, closing and recording the Loan, including, but not limited to, mortgage recording taxes and recording and filing fees relating to the origination of such Loan, have been paid.  Any and all requirements as to completion of any on-site or off-site improvement by the Borrower and as to disbursements of any escrow funds therefor that were to have been complied with have been complied with.

 

(l)                                      The Borrower under the related Mortgage Note, Mortgage and all other Loan Documents had the power, authority and legal capacity to enter into, execute and deliver the same, and, as applicable, such Mortgage Note, Mortgage and other Loan Documents have been duly authorized, properly executed and delivered by the parties thereto, and each is the legal, valid and binding obligation of the related Borrower, guarantor or other obligor and the maker thereof (subject to any non-recourse provisions contained in any of the foregoing agreements and any applicable state anti-deficiency legislation), enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws relating to or affecting the rights of creditors generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).

 

(m)                              All improvements upon the related Property are insured under insurance policies (as described in a Schedule to the related Purchase and Sale Agreement, if any, entitled the “ Insurance Schedule ”).  The Loan Documents require the Borrower to maintain, or cause any related Tenant to maintain, and the related Lease requires such Tenant to maintain, insurance coverage described on the Insurance Schedule and all insurance required under applicable law, including, without limitation, insurance against loss by hazards with extended coverage in an

 

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amount (subject to a customary deductible) at least equal to the full replacement cost of the improvements located on such Property, including without limitation, flood insurance if any portion of the improvements located upon such Property was, at the time of the origination of the Loan, in a flood zone area as identified in the Federal Register by the Federal Emergency Management Agency as a 100 year flood zone or special hazard area, and flood insurance was available under the then current guidelines of the Federal Insurance Administration is in effect with a generally acceptable insurance carrier.  The Loan Documents require the Borrower to maintain, or to cause any related Tenant to maintain, on the related Property a fire and extended perils insurance policy, in an amount not less than the replacement cost and the amount necessary to avoid the operation of any co-insurance provisions with respect to such Property. All such insurance policies contain a standard “additional insured” clause (or similar clause) naming the Borrower (as landlord under the related Lease), its successors and assigns (including, without limitation, subsequent owners of such Property), as additional insured, and may not be reduced, terminated or canceled without thirty (30) (and, in some cases, ten (10)) days’ prior written notice to the additional insured.  In addition, the Mortgage requires the Borrower to (i) cause the holder of the Mortgage to be named as an additional insured mortgagee, and (ii) maintain (or to require any related Tenant to maintain) in respect of the related Property workers’ compensation insurance (if applicable), commercial general liability insurance in amounts generally required by such holder of the Mortgage, and at least 6 months’ rental or business interruption insurance.  The related Loan Documents obligate the Borrower to maintain such insurance and, at such Borrower’s failure to do so, authorizes the mortgagee to maintain such insurance at the Borrower’s cost and expense and to seek reimbursement therefor from such Borrower.  Each such insurance policy, as applicable, is required to name the holder of the Mortgage as an additional insured or contain a mortgagee endorsement naming the holder of the Mortgage as loss payee and requires prior notice to the holder of the Mortgage of termination or cancellation, and no such notice has been received, including any notice of nonpayment of premiums, that has not been cured.  There have been no acts or omissions that would impair the coverage of any such insurance policy or the benefits of the mortgage endorsement.  All insurance contemplated in this section is maintained with insurance companies with a General Policy Rating of “A” or better by S&P or “A:VIII” or better by Best’s Insurance Guide and are licensed to do business in the state wherein the Borrower or the Property subject to the policy, as applicable, is located (“ Insurance Rating Requirements ”).

 

(n)                                  As of the applicable Related Series Closing Date, the related Property was subject to one or more environmental site assessments or reports performed pursuant to ASTM 1527-13 (or an update of a previously conducted assessment or report) within 12 months prior to such Related Series Closing Date, and neither the Originator nor the applicable Issuer has knowledge of any material and adverse environmental conditions or circumstance affecting such Property that was not disclosed in the related assessment or report(s).  Neither the Originator nor the related Issuer has knowledge of any material and adverse environmental conditions or circumstances affecting any Property other than, with respect to any adverse environmental condition described in such report, those conditions for which remediation has been completed or otherwise satisfactorily addressed and, thereafter, to the extent that such report or remediation program is so recommended: (i) a program of annual integrity testing and/or monitoring was recommended and implemented in connection with such Property; (ii) an operations and maintenance plan or periodic monitoring of such related Property was recommended and implemented; or (iii) a follow-up plan was otherwise required to be taken under CERCLA or

 

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under regulations established thereunder from time to time by the Environmental Protection Agency, and such plan has been implemented in the case of (i), (ii) and (iii) above.  The Originator determined in accordance with STORE Capital’s underwriting guidelines then in effect that adequate funding was available for such program or plan, as applicable.  The Originator has not taken any action with respect to the Mortgage Loan or the related Property that can subject the applicable Issuer, or its successors and assigns in respect of the Loan, to any liability under CERCLA or any other applicable federal, state or local environmental law, and neither the Originator nor the applicable Issuer has received any actual notice of a material violation of CERCLA or any applicable federal, state or local environmental law with respect to such Property that was not disclosed in the related report.  The Mortgage or other Loan Documents require the Borrower (and any related Leases require the related Tenant) to comply with all applicable federal, state and local environmental laws and regulations.  With respect to each Loan, (i)(a) a property condition or engineering report was prepared, if the related Property was constructed prior to 1985, with respect to asbestos-containing materials (“ ACMs ”) and (b) if such report disclosed the existence of any material and adverse ACMs affecting the related Property, the related Borrower (A) was required to remediate the identified condition prior to closing the Mortgage Loan or provide additional security or establish with the mortgagee a reserve in an amount deemed to be sufficient by the Property Manager, for the remediation of the problem and/or (B) agreed in the Loan Documents to establish an operations and maintenance plan after the closing of the Mortgage Loan that should reasonably be expected to mitigate the environmental risk related to the identified ACMs.

 

(o)                                  The Mortgage Loan is not cross-collateralized or cross-defaulted with any mortgage loan that is not included in the Collateral Pool.

 

(p)                                  Except by written instruments that are part of the Loan File, recorded or filed in the applicable public office if necessary to maintain the priority of the lien of the related Mortgage, (i) the terms of the Mortgage, Mortgage Note and other Loan Documents have not been impaired, waived altered, modified, satisfied, canceled or subordinated in any material respect, (ii) no related Property or any portion thereof has been released from the lien of the related Mortgage in any manner which materially interferes with the security intended to be provided by such Mortgage or the use, value or operation of such Property, and (iii) neither Borrower nor any guarantor has been released from its obligations under the Loan.

 

(q)                                  There are no delinquent taxes, ground rents, assessments for improvements or other similar outstanding lienable charges affecting the related Property which are or may become a lien of priority equal to or higher than the lien of the Mortgage.  For purposes of this representation and warranty, real property taxes and assessments shall not be considered unpaid until the date on which interest and/or penalties would be payable thereon.

 

(r)                                     Except for any Mortgage Loan secured by a ground lease, the interest of the Borrower in the related Property consists of a fee simple estate in real property.

 

(s)                                    Each Mortgage Loan is a whole loan and not a participation interest.

 

(t)                                     The assignment of the Mortgage referred to in the Loan File constitutes the legal, valid and binding assignment of such Mortgage from the relevant assignor to the

 

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applicable Issuer or to the Collateral Agent.  The assignment of leases and rents set forth in the Mortgage or separate from the Mortgage and related to and delivered in connection with each Mortgage Loan establishes and creates a valid, subsisting and, subject only to Permitted Encumbrances, enforceable first priority lien and first priority security interest in the Borrower’s interest in all leases, subleases, licenses or other agreements pursuant to which any person is entitled to occupy, use or possess all or any portion of the real property subject to the Mortgage, and each assignor thereunder has the full right to assign the same.  The related assignment of Mortgage or any assignment of leases and rents not included in a Mortgage, executed and delivered in favor of such Issuer is in recordable form and constitutes a legal, valid and binding assignment, sufficient to convey to the assignee named therein all of the assignor’s right, title and interest in, to and under such assignment of leases and rents.  No person other than the related Borrower owns any interest in any payment due under such lease or leases that is superior to or of equal priority with the lender’s interest therein.  The related Mortgage or related assignment of leases, subject to applicable law, provides that, upon an event of default under the Loan, a receiver will be appointed for the collection of rents or for the related mortgagee to enter into possession to collect the rents or for rents to be paid directly to the mortgagee.

 

(u)                                  All escrow deposits relating to the Mortgage Loan that are required to be deposited with the related holder of the Mortgage Loan or its agent have been so deposited and there are no deficiencies (subject to any applicable grace or cure periods) in connection therewith, and all such escrows and deposits that are required under the related Loan Documents have been conveyed to the applicable Issuer or its designee and identified as such with appropriate detail.  No other escrow amounts have been released except in accordance with the terms and conditions of the related Loan Documents.

 

(v)                                  As of the date of origination of such Mortgage Loan and, as of the transfer date, as the case may be, the related Property securing such Mortgage Loan was and is free and clear of any mechanics’ and materialmen’s liens or liens in the nature thereof which create a lien prior to that created by the Mortgage, except those which are insured against by the Title Insurance Policy referred to in paragraph (e) above.

 

(w)                                As of the date of the origination of the Mortgage Loan, no improvement that was included for the purpose of determining the Appraised Value of the related Property securing such Mortgage Loan at the time of origination of the Mortgage Loan lay outside the boundaries and building restriction lines of such property in any way that would materially and adversely affect the value of such related Property or the ability to operate such Property under the related Lease (unless affirmatively covered by the Title Insurance Policy referred to in paragraph (e) above), and no improvements on adjoining properties encroached upon such Property or any related easements to any material extent.

 

(x)                                  (i) There exists no material default, breach or event of acceleration under the Mortgage Loan or any of the Loan Documents or the related lease, if any, (ii) there exists no event (other than payments due but not yet delinquent) that, with the passage of time or with notice and the expiration of any grace or cure period, would constitute such a material default, breach or event of acceleration, (iii) no payment on any Mortgage Loan is, or has previously been during any time owned by the Originator or the applicable Issuer, 30 or more days delinquent, and (iv) no payment on any related lease is or has previously been 30 or more days

 

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delinquent; provided, however, that this representation and warranty does not cover any default, breach or event of acceleration that specifically pertains to any matter otherwise covered or addressed by any other representation and warranty made by the applicable Issuer with respect to the Mortgage Loans.  No person other than the holder of such Mortgage Loan may declare any event of default under the Mortgage Loan or accelerate any indebtedness under the Loan Documents.

 

(y)                                  In connection with the origination of each Mortgage Loan, the applicable Issuer inspected or caused to be inspected within twelve months of the applicable Related Series Closing Date the related Property by inspection or otherwise as required in STORE Capital’s underwriting guidelines then in effect.

 

(z)                                   Except as set forth in the Series Supplement, the Mortgage Loan contains no equity participation by or shared appreciation rights in the lender or beneficiary under the Mortgage, and does not provide for any contingent or additional interest in the form of participation in the cash flow of the related Property, or for negative amortization.

 

(aa)                           No holder of the Mortgage Loan has advanced funds or induced, solicited or knowingly received any advance of funds from a party other than the owner of the related Property, directly or indirectly, for the payment of any amount required by the Mortgage Loan (other than amounts paid by the related Tenant as specifically provided under the related lease).  No Originator or any affiliate thereof has any obligation to make any capital contribution to any Borrower under a Mortgage Loan.

 

(bb)                           To such Issuer’s knowledge, based on due diligence customarily performed in the origination or acquisition of comparable mortgage loans, as of the date of origination or acquisition of the Mortgage Loans, the related Borrowers, were in compliance with all applicable laws relating to the ownership and operation of the related Properties as they were then operated and were in possession of all material licenses, permits and authorizations required by applicable laws for the ownership and operation of such Properties as they were operated.  With respect to Properties that are operated as franchised properties, and except with respect to Mortgage Loans for which the related Tenant is the franchisor, the Tenant of such Property has entered into a legal, valid, and binding franchise agreement and such Tenant has represented in the applicable Lease Documents that, as of the date of origination or acquisition of the Mortgage Loan, there were no defaults under the franchise agreement by such Tenant.

 

(cc)                             The origination, servicing and collection practices the related Originator or Issuer used with respect to the Mortgage Loan since such Originator’s origination or, as applicable, Originator’s or Issuer’s acquisition thereof have complied with applicable law in all material respects and are consistent and in accordance with the terms of the related Loan Documents and in accordance with the applicable servicing standard and customary industry standards.

 

(dd)                           The Mortgage or Mortgage Note, together with applicable state law, contains customary and enforceable provisions (subject to the exceptions set forth in paragraph (l) above) such as to render the rights and remedies of the holders thereof adequate for the practical realization against the Property of the principal benefits of the security intended to be

 

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provided thereby, including the right of foreclosure under the laws of the state in which such Property is located.

 

(ee)                             The Mortgage provides that insurance proceeds and condemnation proceeds will be applied for one of the following purposes: to restore or repair the related Property (the lender (or a trustee appointed by it) having the right to hold and disburse such proceeds as the repair or restoration progresses); to repay the principal of the Mortgage Loan; or to be used as otherwise directed by the holder of such Mortgage.

 

(ff)                               There are no actions, suits, legal, arbitration or administrative proceedings or investigations by or before any court or governmental authority or, to such Issuer’s knowledge, pending against or affecting the Borrower or the related Property that, if determined adversely to such Borrower or such Property, would materially and adversely affect (a) title to the Property, (b) the validity or enforceability of the Mortgage, (c) such Borrower’s ability to perform under the related Mortgage Loan, (d) any related guarantor’s ability to perform under the related guaranty, (e) the use, operation or value of the Property, (f) the principal benefit of the security intended to be provided by the Loan Documents, (g) the current ability of the Property to generate net cash flow sufficient to service such Mortgage Loan, or (h) the current principal use of the Property.

 

(gg)                             If the Mortgage is a deed of trust, a trustee, duly qualified under applicable law to serve as such, is properly designated and serving under such Mortgage.  Except in connection with a trustee’s sale or as otherwise required by applicable law, after default by the Borrower, no fees or expenses are payable to such trustee.

 

(hh)                           The Mortgage does not permit the related Property to be encumbered by any lien junior to or of equal priority with the lien of the Mortgage (excluding any lien relating to another Mortgage Loan that is cross collateralized with the Mortgage Loan) without the prior written consent of the holder thereof.  There is no mezzanine debt related to the Property.

 

(ii)                                   The Borrower is not a debtor in any state or federal bankruptcy or insolvency proceeding.

 

(jj)                                 As of the date of origination by the related Originator or acquisition of each Mortgage by such Issuer, as applicable, each Borrower which is not a natural person was duly organized and validly existing under the laws of the state of its jurisdiction.

 

(kk)                           The Mortgage Loan contains provisions for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan if, without complying with the requirements of the Mortgage Loan, (i) the related Property, or any controlling interest in the Borrower, is directly or indirectly pledged, transferred or sold or (ii) the related Property is encumbered with a subordinate lien or security interest against the related Property.

 

(ll)                                   The Loan Documents for each of the Mortgage Loans generally provide that the Borrower is to provide periodic financial and operating reports including, without limitation, annual profit and loss statements, statements of cash flow and other related information that the applicable Issuer reasonably requests from time to time.

 

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(mm)                   To the applicable Issuer’s actual knowledge, based upon zoning letters, zoning reports, the Title Insurance Policy insuring the lien of the Mortgage, historical use and/or other due diligence customarily performed by the Originator in connection with the origination of the Mortgage Loan, the improvements located on or forming part of the related Property comply in all material respects with applicable zoning laws and ordinances (except to the extent that they may constitute legal non-conforming uses).  In the event of casualty or destruction, (a) the Property may be restored or repaired to the full extent necessary to maintain the use of the structure immediately prior to such casualty or destruction, (b) law and ordinance insurance coverage has been obtained for the Property in amounts customarily required by prudent commercial mortgage lenders that provides coverage for additional costs to rebuild and/or repair the property to current applicable laws, zoning ordinances, rules, covenants and restrictions, or (c) the inability to restore the Property to the full extent of the use or structure immediately prior to the casualty would not materially and adversely affect the use, operation or value of such Property.

 

(nn)                           Any Property is located within one of the 50 United States or the District of Columbia.

 

(oo)                           With respect to a Mortgage Loan secured by a Property located in “seismic zones” 3 or 4 with the probable maximum loss exceeding 20%, the Borrower or Issuer (or an affiliate of Issuer) has obtained, and is required under the Loan Documents to maintain, earthquake insurance from an insurer in compliance with the Insurance Rating Requirements and in an amount not less than 100% of the probable maximum loss for the related Property with respect to the improvements on and forming a part of such Property, or is required to cause the Tenant to maintain (and the Tenant has obtained) earthquake insurance if such Property is located in any such area.

 

(pp)                           The applicable Issuer does not have knowledge of any circumstance or condition with respect to such Mortgage Loan, the related Property, the related Lease or the Borrower’s or the Tenant’s credit standing that can reasonably be expected to cause such Issuer to regard such Mortgage Loan as unacceptable security, cause such Mortgage Loan or the related Lease to become delinquent or have a material adverse effect on the value or marketability of such Mortgage Loan.

 

(qq)                           The related Property has adequate rights of access to public rights-of-way and is served by utilities, including, without limitation, adequate water, sewer, electricity, gas, telephone, sanitary sewer, and storm drain facilities. All public utilities necessary to the continued use and enjoyment of such Property as presently used and enjoyed are located in such public rights-of-way abutting such Property or are the subject of access easements for the benefit of such Property, and all such utilities are connected so as to serve such Property without passing over other property or are the subject of access easements for the benefit of such Property. All roads necessary for the full use of such Property for its current purpose have been completed and dedicated to public use and accepted by all governmental authorities or are the subject of access easements for the benefit of such Property.  The related Property constitutes one or more separate tax parcels which do not include any property which is not part of the Property or is subject to an endorsement under the related Title Insurance Policy insuring the Property, or in certain cases, an application has been made to the applicable governing authority for creation of separate tax lots,

 

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in which case the Mortgage Loan requires the Borrower to escrow an amount sufficient to pay taxes for the existing tax parcel of which the Property is a part until the separate tax lots are created.

 

(rr)                                 With respect to any Mortgage Loan where all or a material portion of the Property securing such Mortgage Loan is a leasehold estate, and the related Mortgage does not also encumber the related ground lessor’s fee interest in such Property, based upon the terms of the ground lease and any estoppel letter or other writing received from the ground lessor and included in the related Loan File and, if applicable, the related Mortgage:

 

(i)                                The ground lease or a memorandum regarding such ground lease has been duly recorded.  The ground lessor has permitted the interest of the related lessee to be encumbered by the related Mortgage.  There has been no material change in the terms of the ground lease since its recordation, except by any written instruments which are included in the related Loan File.

 

(ii)                             The ground lease may not be amended, modified, canceled or terminated without the prior written consent of the owner of the Mortgage Loan and that any such action without such consent is not binding on the lender, its successors or assigns.

 

(iii)                          The ground lease has an original term (or an original term plus one or more optional renewal terms, which, under all circumstances, may be exercised, and is enforceable, by the lender) that extends beyond the stated maturity of the related Mortgage Loan.

 

(iv)                         Based on the Title Insurance Policy referenced in paragraph (e) above, the ground leasehold interest is not subject to any liens or encumbrances superior to, or of equal priority with, the Mortgage, subject to permitted encumbrances and liens that encumber the ground lease’s fee interest.

 

(v)                            The ground lease is assignable to the lender and its assigns without the consent of the ground lessor thereunder.

 

(vi)                         Such Issuer or Originator has not received any written notice of default under or notice of termination of such ground lease.  The ground lease is in full force and effect and no default has occurred under the ground lease and there is no existing condition which, but for the passage of time or the giving of notice, would result in a material default under the terms of the ground lease.

 

(vii)                      The ground lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, provides that no notice of default or termination is effective unless such notice is given to the lender, and requires that the ground lessor will supply an estoppel.

 

(viii)                   The lender is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under the ground lease through legal proceedings, or to take other action so long as the lender is

 

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proceeding diligently) to cure any default under the ground lease which is curable after the receipt of notice of any default, before the ground lessor may terminate the ground lease.

 

(ix)                         The ground lease does not impose restrictions on subletting that would be viewed as commercially unreasonable by a prudent commercial mortgage lender.  The ground lessor is not permitted to disturb the possession, interest or quiet enjoyment of any subtenant of the ground lessee in the relevant portion of the related Property subject to the ground lease for any reason, or in any material manner, which would adversely affect the security provided by the related Mortgage.

 

(x)                            Any related insurance proceeds or condemnation award (other than in respect of a total or substantially total loss or taking) is required under the related ground lease to be applied either to the repair or restoration of all or part of the related Property, with the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest.

 

(xi)                         Any related insurance proceeds, or condemnation award in respect of a total or substantially total loss or taking of the related Property is required to be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest (except as provided by applicable law or in cases where a different allocation would not be viewed as commercially unreasonable by any institutional investor, taking into account the relative duration of the ground lease and the related Mortgage and the ratio of the market value of the related Property to the outstanding principal balance of such Mortgage Loan).  Pursuant to the related ground lease, until the principal balance and accrued interest are paid in full, neither the lessee nor the ground lessor under the ground lease has an option to terminate or modify the ground lease without the prior written consent of the lender as a result of any casualty or partial condemnation, except to provide for an abatement of the rent.

 

(xii)                      Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease upon termination of the ground lease for any reason, including rejection of the ground lease in a bankruptcy proceeding.

 

(ss)                               With respect to each Mortgage Loan and any Qualified Substitute Loans or, with respect to the related loan component, Qualified Substitute Hybrid Leases purchased or substituted by an Issuer from a third party, each Mortgage Loan and the related Property are required to be originated pursuant to the Indenture and the Property Management Agreement in accordance with STORE Capital’s underwriting guidelines then in effect or in accordance with a Borrower’s, Tenant’s or a different form of document that is otherwise approved by such Issuer on a case by case basis in a manner that provides for such Issuer to receive the substantive benefits intended to be realized in accordance with STORE Capital’s underwriting guidelines then in effect.

 

(tt)                                 None of the Mortgage Loans are construction loans.

 

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(uu)                           Each Borrower covenants in the Loan Documents that is shall keep all material licenses, permits, franchises, certificates of occupancy, consents, and other approvals necessary for the operation of the Property in full force and effect, and to the applicable Issuer’s knowledge based upon any of a letter from any government authorities or other affirmative investigation of local law compliance consistent with the investigation conducted by such Issuer for similar commercial mortgage loans intended for securitization; all such material licenses, permits, franchises, certificates of occupancy, consents, and other approvals are in effect.  The Mortgage Loan requires the related Borrower to be qualified to do business in the jurisdiction in which the related Property is located and for the Borrower and the Property to be in compliance in all material respects with all regulations, zoning and building laws.

 

(vv)                           To the extent required under applicable law, as of the related Series Closing Date or as of the date that such entity held the Mortgage Note, each holder of the Mortgage Note was authorized to transact and do business in the jurisdiction in which each related Property is located, or the failure to be so authorized does not materially and adversely affect the enforceability of such Mortgage Loan by the applicable Issuer.

 

(ww)                       The Loan Documents for each Mortgage Loan provide that such Mortgage Loan (a) becomes full recourse to the Borrower and guarantor (which is a natural person or persons, or an entity distinct from the Borrower (but may be affiliated with the Borrower) that has assets other than equity in the related Property that are not de minimis) in any of the following events: (i) if any petition for bankruptcy, insolvency, dissolution or liquidation pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by, consented to, or acquiesced in by, the Borrower; (ii) Borrower or guarantor shall have colluded with other creditors to cause an involuntary bankruptcy filing with respect to the Borrower or (iii) transfers of either the Property or equity interests in Borrower made in violation of the Loan Documents; and (b) contains provisions providing for recourse against the Borrower and guarantor (which is a natural person or persons, or an entity distinct from the Borrower (but may be affiliated with the Borrower) that has assets other than equity in the related Property that are not de minimis), for losses and damages sustained in the case of (i) misappropriation of rents, security deposits, insurance proceeds, or condemnation awards; (ii) the Borrower’s fraud or willful misrepresentation; (iii) willful misconduct by the Borrower or guarantor; (iv) breaches of the environmental covenants in the Loan Documents; or (v) commission of material physical waste at the Property.

 

(xx)                           [Reserved].

 

(yy)                           Each Mortgage Loan requires the Borrower to be a Single-Purpose Entity for at least as long as the Mortgage Loan is outstanding.  Both the Loan Documents and the organizational documents of the Borrower with respect to each Mortgage Loan with a principal balance in excess of $5 million as of the related Series Closing Date provide that the Borrower is a Single-Purpose Entity, and each Mortgage Loan with a principal balance of $20 million or more has a counsel’s opinion regarding non-consolidation of the Borrower.  For this purpose, a “Single-Purpose Entity” shall mean an entity, other than an individual, whose organizational documents (or if the Mortgage Loan has a principal balance as of the related Series Closing Date equal to $5 million or less, its organizational documents or the related Loan Documents) provide substantially to the effect that it was formed or organized solely for the purpose of owning and

 

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operating one or more of the Properties securing the Mortgage Loans and prohibit it from engaging in any business unrelated to such Property or Properties, and whose organizational documents further provide, or which entity represented in the related Loan Documents, substantially to the effect that it does not have any assets other than those related to its interest in and operation of such Property or Properties, or any indebtedness other than as permitted by the related Mortgage(s) or the other related Loan Documents, that it has its own books and records and accounts separate and apart from those of any other person (other than a Borrower for a Mortgage Loan that is cross-collateralized and cross-defaulted with the related Mortgage Loan), and that it holds itself out as a legal entity, separate and apart from any other person or entity.

 

(zz)                             Each Mortgage Loan bears interest at a rate that remains fixed throughout the remaining term of such Mortgage Loan, except in the case of ARD loans and situations where default interest is imposed.

 

(aaa)                    Prior to the origination date of the related Mortgage Loan, the applicable Originator obtained financial information with respect to the Borrower and the related tenant in accordance with the requirements of STORE Capital’s underwriting guidelines then in effect.

 

(bbb)                    The applicable Originator has obtained an organizational chart or other description of each Borrower which identifies all beneficial controlling owners of the Borrower.  Prior to the origination date of the related Mortgage Loan, the applicable Originator reviewed and approved the Borrower in accordance with the requirements of STORE Capital’s underwriting guidelines then in effect.

 

(ccc)                       Such Issuer obtained an estoppel from the tenant on the Property within ninety (90) days prior to the origination date of the related Mortgage Loan, (w) confirming the rent payments under the related lease, (x) the term of the related lease, including any extension options, (y) the related lease is in full force and effect, and (z) there exists no default under such lease, either by the lessee thereunder or by the Borrower, as lessor.

 

(ddd)                    The Loan File contains an appraisal of the related Property with an appraisal date within six (6) months of the Mortgage Loan origination date. The appraisal is signed by an appraiser who is a Member of the Appraisal Institute and, to the best of such Issuer’s knowledge, had no interest, direct or indirect, in the Property or the Borrower or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. Each appraiser has represented in such appraisal or in a supplemental letter that the appraisal satisfies the requirements of the “Uniform Standards of Professional Appraisal Practice” as adopted by the Appraisal Standards Board of the Appraisal Foundation.

 

(eee)                       Issuer and Originator have complied with all applicable anti-money laundering laws and regulations, including without limitation the USA Patriot Act of 2001 with respect to the origination of the Mortgage Loan.

 

Section 2.22                             Representations and Warranties With Respect to Hybrid Leases .

 

Except as set forth in Schedule I of the applicable Series Supplement, each of the applicable Issuers shall make the following representations and warranties and the

 

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representations and warranties set forth in Exhibit A of such Series Supplement, as of the applicable Series Closing Date, Transfer Date or Post-Closing Acquisition Date, with respect to the Hybrid Leases indicated in such Series Supplement or otherwise added to the Collateral Pool by such Issuer in connection with the issuance of any Series of Notes, as Qualified Substitute Hybrid Leases or as Post-Closing Properties:

 

(a)                                  The related Lease and loan agreements provide that such Issuer may exercise its remedies under each related Lease to terminate the related Tenant’s right to access the related Property and assume ownership of, or leasehold estate in, all the Improvements located on such Property without foreclosing on the mortgage related to the loan component of such Hybrid Lease, unless an obligation to foreclose is otherwise imposed by a court of law.

 

(b)                                  The related Lease and loan agreements provide that ownership of, or leasehold estate in, the Improvements located on the related Property shall revert to such Issuer upon expiration or early termination of such Lease notwithstanding the terms of the loan agreement with respect to the related loan component or the standing of the related borrower under such loan agreement.

 

(c)                                   Any related Lease containing a Third Party Purchase Option shall (i) contain a Third Party Option Price not less than the sum of the Fair Market Values of each Property relating to such Hybrid Lease and (ii) require that the principal balance of the related loan component be paid in full prior to the exercise of such Third Party Purchase Option.

 

(d)                                  Each Qualified Substitute Hybrid Lease satisfies the requirements set forth in the definition of Qualified Substitute Hybrid Lease.

 

(e)                                   Pursuant to the lease, loan and other operative agreements relating to the IRB Hybrid Lease, including the trust indenture under which the related industrial revenue bond was issued:

 

(i)                                The related Issuer may exercise the rights of the related Tenant and its Affiliates under (A) the ground lease under which the ground lessor is the Governmental Authority that holds the fee interest in the related Property and (B) the trust indenture pursuant to which the related industrial revenue bond is issued;

 

(ii)                             the related Tenant or its applicable Affiliate may redeem the related industrial revenue bond at any time prior to its maturity at the discretion of the holder of the related industrial revenue bond; and

 

(iii)                          upon the maturity of the related industrial revenue bond, or the earlier redemption of the related industrial revenue bond by the holder of the related industrial revenue bond, fee title to the subject land reverts to the related Issuer and fee title to the improvements reverts to the related Tenant or its applicable Affiliate, each upon the payment under the ground lease with the related Governmental Authority of (i) an amount sufficient to redeem the related industrial revenue bond, which such amounts may be netted against amount payable by such Governmental Authority as issuer of the related industrial revenue bond to the holder of the related industrial revenue bond and (ii) certain nominal administrative fees and expenses.

 

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(f)                                    Each Post-Closing Property that is subject to a Hybrid Lease satisfies the requirements set forth in the definition of Post-Closing Property.

 

ARTICLE III

 

SATISFACTION AND DISCHARGE

 

Section 3.01                             Satisfaction and Discharge of Indenture .

 

This Indenture shall cease to be of further effect except as to (i) any surviving rights herein expressly provided for, including any rights of transfer or exchange of Notes herein expressly provided for, (ii) in the case of clause (1)(B)  below, the rights of the Noteholders hereunder to receive payment of the Outstanding Principal Balance of and interest on the Notes and any other rights of the Noteholders hereunder, and (iii) the provisions of Section 3.02 , when:

 

(1)                                  either: (A) all Notes theretofore authenticated and delivered (other than (i) Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 and (ii) Notes for which payment of money has theretofore been deposited in the Payment Account by the Indenture Trustee and thereafter repaid to the Issuers or discharged from such trust, as provided in Section 5.10 ) have been delivered to the Note Registrar for cancellation; or (B) all such Notes not theretofore delivered to the Note Registrar for cancellation (i) have become due and payable or (ii) will become due and payable on the next Payment Date, and in the case of clause (B)(i)  or (B)(ii)  above, cash in an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Note Registrar for cancellation or sufficient to pay the Outstanding Principal Balance thereof and any interest thereon accrued to the date of such deposit (in the case of Notes which have become due and payable) or to the end of the related Accrual Period for the next Payment Date has been deposited with the Indenture Trustee as trust funds in trust for these purposes;

 

(2)                                  the Issuers have paid or caused to be paid all other sums payable or reasonably expected to become payable by such Issuers to the Indenture Trustee, the Collateral Agent, the Property Manager, the Special Servicer, the Back-Up Manager, each of the Rating Agencies, each of the other Persons to which amounts are payable hereunder and each of the Noteholders (in each case, if any);

 

(3)                                  the Issuers have delivered to the Indenture Trustee an Officer’s Certificate of the applicable Issuer Member (upon which the Indenture Trustee may rely) stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with; and

 

(4)                                  the Issuers have furnished to the Indenture Trustee a Tax Opinion to the effect that the actions contemplated by this Section 3.01 will not (i) cause any Class of Notes of any Series that was characterized as debt at the time

 

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of its issuance for U.S. federal income tax purposes, to be characterized other than as indebtedness for U.S. federal income tax purposes, or (ii) cause or constitute an event in which any U.S. federal income tax gain or loss would be recognized by any Noteholder or any Issuer;

 

provided , however , that if, at any time after the payment that would have otherwise resulted in the satisfaction and discharge of this Indenture and such obligations, such payment is rescinded or must otherwise be returned for any reason, effective upon such rescission or return such satisfaction and discharge of this Indenture and such obligations shall automatically be deemed never to have occurred and this Indenture and such obligations shall be deemed to be in full force and effect.

 

Notwithstanding the foregoing, the obligations of the Issuers to the Indenture Trustee under Section 5.04 hereof and the obligations of the Indenture Trustee to the Noteholders under Section 3.02 hereof shall survive satisfaction and discharge of this Indenture.

 

Section 3.02                             Application of Trust Money .

 

Subject to the provisions of Section 2.11 , Section 5.10 and Section 7.01 , all Cash deposited with the Indenture Trustee pursuant to Section 3.01 shall be held in the Payment Account and applied by the Indenture Trustee, in accordance with the provisions of the Notes and this Indenture, to pay to the Persons entitled thereto the amounts to which such Persons are entitled pursuant to the provisions hereof.

 

ARTICLE IV

 

EVENTS OF DEFAULT; REMEDIES

 

Section 4.01                             Events of Default .

 

“ Event of Default ,” wherever used herein with respect to the Notes of any Series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(a)                                  unless otherwise specified in the related Series Supplement, the failure of any Issuer to pay Note Interest on any related Notes on any Payment Date and such failure continues unremedied for a period of two (2) Business Days;

 

(b)                                  the failure of any Issuer to reduce to zero the Outstanding Principal Balance of any related Class of Notes on the applicable Rated Final Payment Date;

 

(c)                                   (i) any material default in the observance or performance of any material covenant or agreement of the Issuers made in this Indenture or any related Mortgage (other than a covenant or agreement, a default in the observance or performance of which is elsewhere in this Section 4.01 specifically dealt with), which default shall continue unremedied for a period of 30 days after there shall have been given to the Issuers by the Indenture Trustee, or to the Issuers

 

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and the Indenture Trustee by the Noteholders holding at least 25% of the Aggregate Series Principal Balance, a written notice specifying such default and requiring it to be remedied; (ii) any monetary default by any Issuer under any Transaction Document, other than this Indenture, any Mortgage or any Series of Notes, which monetary default continues beyond any applicable cure period set forth in such Transaction Document, or if no cure period is set forth in such document, such default continues unremedied for a period of five (5) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to such Issuer by the Indenture Trustee; or (iii) any material default in the observance or performance of any non-monetary covenant or agreement on the part of any Issuer contained in any Transaction Document, other than this Indenture, any Mortgage or any Series of Notes, which continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to such Issuer by the Indenture Trustee, provided, however, if such default under this clause (iii) is reasonably susceptible of cure, but not within such thirty (30) day period, then such Issuer may be permitted an additional ninety (90) days to cure such default provided such Issuer diligently and continuously pursues such cure;

 

(d)                                  (i) the impairment of the validity or effectiveness of this Indenture or the material impairment of the validity or effectiveness of any Mortgage, the subordination of the lien of any such Mortgage, the creation of any lien or other encumbrance on any part of the Collateral Pool in addition to the lien of any such Mortgage or the failure of the lien of any such Mortgages to constitute a valid first priority perfected security interest in the Collateral included in the Collateral Pool, in each case that has a material adverse effect with respect to the Collateral Pool and subject to liens expressly permitted under the terms of the Property Management Agreement and the related Mortgages; provided , that if susceptible of cure, no Event of Default shall arise pursuant to this clause (d)  until the continuation of any such default unremedied for a period of 5 days or, with respect to the lien of any Mortgage, 30 days after receipt by the Issuers of notice thereof; or (ii) the creation of any mechanic’s, materialmen’s or other lien or encumbrance, other than a Permitted Encumbrance and subject to such Issuer’s right to contest such lien pursuant to Section 9.04(b) , on any part of the Collateral in addition to the lien of any Mortgage, which lien is not removed of record or otherwise insured over to Indenture Trustee’s satisfaction within forty-five (45) days of the filing or recording of such lien;

 

(e)                                   a material breach of the representations and warranties of any Issuer contained in the Indenture (other than as set forth in Section 2.20, Section 2.21 and Section 2.22) that materially and adversely affects the interests of the Indenture Trustee, on behalf of the Noteholders, which continues unremedied for a period of five (5) days after the date on which written notice of such breach, requiring the same to be remedied, shall have been given to such Issuer by the Indenture Trustee;

 

(f)                                    a decree or order of a court or agency or supervisory authority having jurisdiction in the premises in an involuntary case under any present or future federal or state bankruptcy, insolvency or similar law or appointing a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities and reorganization or similar proceedings, or for the winding up or liquidation of its affairs, shall have been entered against any Issuer or Issuer Member and such decree or order shall have remained in force undischarged or unstayed for a period of ninety (90) days;

 

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(g)                                   any Issuer shall voluntarily file a petition for bankruptcy, reorganization, assignment for the benefit of creditors or similar proceeding or consent to the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings of, or relating to, such Issuer or the related Issuer Member or of, or relating to, all or substantially all of the assets of such Issuers or the related Issuer Member;

 

(h)                                  the Mortgage Loans or Properties are subject to a Collateral Transfer other than as provided in this Indenture or the Property Management Agreement;

 

(i)                                      any default on the obligations of any Issuer as set forth under any applicable Series Supplement, or any default under any other Transaction Document (that is deemed an “Event of Default under the Indenture” pursuant to the terms of such other Transaction Document); or

 

(j)                                     with respect to any Series of Notes, any material default by the related Issuer in the observance or performance of the covenants set forth in Section 9.24 of this Indenture, which default shall continue unremedied for a period of two (2) Business Days after the date on which written notice of such breach shall have been given to such Issuer.

 

Section 4.02                             Acceleration of Maturity; Rescission and Annulment .

 

If an Event of Default (other than with respect to clause (f), clause (g) or clause (j) of the definition thereof) should occur and be continuing, at the written direction of the Requisite Global Majority (which shall have the right, but not the obligation, to direct the Indenture Trustee to accelerate the Notes and, subject to the provisions of this Indenture, cause the foreclosure and sale of the Collateral included in the Collateral Pool), the Indenture Trustee shall declare all of the Notes to be immediately due and payable.  If an Event of Default specified in Section 4.01(f), (g) or (j) occurs, the unpaid Outstanding Principal Balance of such Notes, together with all accrued interest thereon through the date of acceleration, shall automatically become due and payable in full without any declaration or other act on the part of the Indenture Trustee or any Noteholder.

 

At any time after such declaration of acceleration has been made and before a judgment or decree for payment of the money due in respect of the Notes has been obtained by the Indenture Trustee as hereinafter provided in this Article IV , the Requisite Global Majority may rescind and annul such declaration and its consequences if:

 

(a)                                  the Issuers have paid to or deposited with the Indenture Trustee a sum sufficient to pay:

 

(i)                                all payments of principal of and interest on the Notes and all other amounts that would, in each case, then be due hereunder or upon the Notes if the Event of Default giving rise to such acceleration had not occurred; and

 

(ii)                             all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and counsel; and

 

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(b)                                  all Events of Default, other than the nonpayment of the principal of the Notes that has become due solely by virtue of such acceleration, have been cured or waived as provided in Section 4.12 .

 

No such rescission and annulment shall affect any subsequent default or impair any right consequent thereto.

 

Section 4.03                             Collection of Indebtedness and Suits for Enforcement by Indenture Trustee .

 

(a)                                  If the Issuers fail to pay all amounts due upon an acceleration of the Notes under Section 4.02 forthwith upon demand and such declaration and its consequences shall not have been rescinded and annulled, the Indenture Trustee, in its capacity as Indenture Trustee and as trustee of an express trust, shall, if directed by the Requisite Global Majority (which will have the right, but not the obligation, to direct the Indenture Trustee to cause the foreclosure and sale of the Collateral in the Collateral Pool), institute a judicial proceeding for the collection of the sums so due and unpaid, prosecute such proceeding to judgment or final decree and enforce the same against the Issuers or any other obligor upon such Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the Collateral, wherever situated, or may institute and prosecute such non-judicial proceedings in lieu of judicial proceedings as are then permitted by applicable law.

 

(b)                                  If an Event of Default occurs and is continuing, the Indenture Trustee may, in its discretion and in any order, proceed to protect and enforce its rights and the rights of the Noteholders by such appropriate proceedings as the Indenture Trustee shall deem most effective 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 Indenture Trustee by this Indenture or any Mortgage or by law.

 

(c)                                   In case (x) there shall be pending, relative to the Issuers or any Person having or claiming an interest in the Collateral Pool, proceedings under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, (y) a receiver, assignee, debtor-in-possession or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or shall have taken possession of any Issuer or its property or (z) there shall be pending a comparable judicial proceeding brought by creditors of any Issuer or affecting the property of such Issuer, the Indenture Trustee, irrespective of whether the principal of or interest on any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:

 

(i)                                to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective attorneys, and for

 

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reimbursement of all reasonable expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of willful misconduct, negligence or bad faith of the Indenture Trustee or any predecessor Indenture Trustee, as applicable) and of the Noteholders allowed in such proceedings;

 

(ii)                             unless prohibited by applicable law and regulations, to vote on behalf of the Noteholders in any election of a trustee, a standby trustee or Person performing similar functions in any such proceedings;

 

(iii)                          to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders and of the Indenture Trustee on their and its behalf; and

 

(iv)                         to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Noteholders allowed in any judicial proceedings relative to any Issuer, its creditors and its property;

 

and any trustee, receiver, liquidator, custodian or other similar official in any such proceeding is hereby authorized by each of Noteholders to make payments to the Indenture Trustee, and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective attorneys, and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of willful misconduct, negligence or bad faith of the Indenture Trustee or predecessor Indenture Trustee.

 

(d)                                  Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any related Noteholder or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.

 

(e)                                   In any proceedings brought by the Indenture Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Noteholders, and it shall not be necessary to make any Noteholder a party to any such proceedings.

 

(f)                                    All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its counsel, be for the ratable

 

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benefit of the Noteholders in respect of which such judgment has been recovered, subject to the payment priorities of Section 2.11(b) .

 

Section 4.04                             Remedies .

 

If an Event of Default has occurred and is continuing, and the Notes have been declared due and payable pursuant to Section 4.02 and such declaration and its consequences shall not have been rescinded and annulled, the Indenture Trustee shall, at the written direction of the Requisite Global Majority, in addition to performing any tasks as provided in Section 4.03 , do one or more of the following:

 

(a)                                  institute, or cause to be instituted, Proceedings for the collection of all amounts then payable on or under the Collateral or this Indenture with respect to the Notes, whether by declaration of acceleration or otherwise, of the sums due and unpaid, prosecute such Proceedings, enforce any judgment obtained and collect from the Collateral included in the Collateral Pool the moneys adjudged to be payable;

 

(b)                                  liquidate, or cause to be liquidated, all or any portion of the Collateral Pool at one or more public or private sales called and conducted in any manner permitted by applicable laws; provided , however , that the Indenture Trustee shall give the Issuers written notice of any private sale called by or on behalf of the Indenture Trustee pursuant to this Section 4.04(b)  at least 10 days prior to the date fixed for such private sale;

 

(c)                                   institute, or cause to be instituted, Foreclosure Proceedings with respect to all or part of the Collateral included in the Collateral Pool;

 

(d)                                  exercise, or cause to be exercised, any remedies of a secured party under the UCC;

 

(e)                                   maintain the lien of this Indenture and the Mortgages over the Collateral included in the Collateral Pool and, in its own name or in the name of the Issuers or otherwise, collect and otherwise receive in accordance with the Property Management Agreement or this Indenture any money or property at any time payable or receivable on account of or in exchange for the Properties and Leases in the Collateral Pool;

 

(f)                                    take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee hereunder; and

 

(g)                                   exercise, or cause to be exercised, any remedies contained in any Mortgage;

 

provided , however , that the Indenture Trustee shall not, unless required by law, sell or otherwise liquidate all or any portion of the Collateral Pool following any Event of Default except in accordance with Section 4.15 ; provided , further , that, with respect to instituting any remedies pursuant to this Section 4.04 in any state wherein the law prohibits more than one “judicial action” or “one form of action” to enforce a mortgage obligation, the Indenture Trustee shall enforce any of the Indenture Trustee’s rights hereunder with respect to any Properties in accordance with the directions of the Property Manager.

 

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In the event that the Indenture Trustee, following an Event of Default hereunder, institutes Foreclosure Proceedings, the Indenture Trustee shall promptly give a notice to that effect to the Issuers and each Rating Agency.

 

Section 4.05                             Application of Money Collected .

 

Any money collected by the Indenture Trustee pursuant to this Article shall be deposited in the Payment Account and, on each Payment Date, shall be applied in accordance with Section 2.11 and, in case of the distribution of such money on account of the principal of or interest on the Notes, upon presentation and surrender of the Notes if fully paid.

 

Section 4.06                             Limitation on Suits .

 

Except as provided in Section 4.07 , no Noteholder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

(1)                                  such Noteholder has previously given written notice to the Indenture Trustee of a continuing Event of Default;

 

(2)                                  the Requisite Global Majority shall have made written request to the Indenture Trustee to institute proceedings in respect of such Event of Default in its own name as Indenture Trustee hereunder;

 

(3)                                  such Noteholder has offered to the Indenture Trustee adequate indemnity or security satisfactory to the Indenture Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(4)                                  the Indenture Trustee for 60 days after its receipt of such notice, request and offer of indemnity or security has failed to institute any such proceeding; and

 

(5)                                  an Event of Default shall have occurred and be continuing;

 

it being understood and intended that no one or more of such Noteholders shall have any right in any manner whatever by virtue of, or by availing itself or themselves of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Noteholders, or to obtain or to seek to obtain priority or preference over any other of such Noteholders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Noteholders.  Subject to the foregoing restrictions, the Noteholders may exercise their rights under this Section 4.06 independently.

 

Section 4.07                             Unconditional Right of Noteholders to Receive Principal and Interest .

 

Notwithstanding any other provision in this Indenture, the Holder of any Note at Maturity shall have the right, which is absolute and unconditional, to receive payments of interest, principal and other amounts then due on such Note (subject to Section 2.11 ) and to institute suit for the enforcement of any such payment (subject to Section 4.06 ), and such rights

 

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shall not be impaired without the consent of such Noteholder, unless a non-payment has been cured pursuant to the second paragraph of Section 4.02 .  The Issuers shall, however, be subject to only one consolidated lawsuit by the Noteholders, or by the Indenture Trustee on behalf of the Noteholders, for any one cause of action arising under this Indenture or otherwise.

 

Section 4.08                             Restoration of Rights and Remedies .

 

If the Indenture Trustee or any Noteholder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued, waived, rescinded or abandoned for any reason, or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case, subject to any determination in such proceeding, the Issuers, the Indenture Trustee and the Noteholders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such proceeding had been instituted.

 

Section 4.09                             Rights and Remedies Cumulative .

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 , no right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.  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.

 

Section 4.10                             Delay or Omission Not Waiver .

 

No delay or omission of the Indenture Trustee or any Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.  Every right and remedy given by this Indenture or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, to the extent permitted by applicable law, by the Indenture Trustee or the Noteholders, as the case may be.

 

Section 4.11                             Control by Requisite Global Majority .

 

The Requisite Global Majority shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee under Section 4.04 , or exercising any trust or power conferred on the Indenture Trustee (including, without limitation, the exercise of its rights under any Account Control Agreement); provided , that such direction shall not be in conflict with any rule of law or with this Indenture or involve the Indenture Trustee in personal liability; provided , further , that the Indenture Trustee may take any other action deemed proper by the Indenture Trustee which is not inconsistent with such direction.  Notwithstanding the foregoing, the Requisite Global Majority will not be required to provide, and the Indenture Trustee will not be required to obtain, a Tax Opinion in the case of a direction by the Requisite Global Majority to the Indenture Trustee, following an Event of

 

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Default, to realize upon the Collateral included in the Collateral Pool by liquidating such Collateral or otherwise.

 

Section 4.12                             Waiver of Past Defaults .

 

Prior to the acceleration of the Maturity of the Notes, the Requisite Global Majority may waive any past default hereunder and its consequences, except a default:

 

(1)                                  in the distribution of principal or interest on any Note, for which a waiver shall require the consent of Noteholders holding 100% of the Series Principal Balance of all Notes affected thereby;

 

(2)                                  in respect of a covenant or provision hereof which under Article VIII cannot be modified or amended without the consent of the Holder of each Note affected thereby, for which a waiver shall require the consent by each such Holder;

 

(3)                                  depriving the Indenture Trustee of a lien on any part the Collateral, for which a waiver shall require the consent of the Indenture Trustee; or

 

(4)                                  depriving the Indenture Trustee or the Collateral Agent of any fees, reimbursement, or indemnification, to which the Indenture Trustee or the Collateral Agent is entitled, for which a waiver shall require the written consent of the Indenture Trustee or the Collateral Agent, as applicable.

 

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom (and any Early Amortization Period under clause (B) of the definition thereof resulting therefrom) shall be deemed to have been cured, for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.  Any costs or expenses incurred by the Indenture Trustee or the Collateral Agent in connection with such waiver shall be reimbursable to the Indenture Trustee, as applicable, as an Extraordinary Expense from amounts on deposit in the Payment Account.

 

Section 4.13                             Undertaking for Costs .

 

All parties to this Indenture agree, and each Noteholder and Note Owner by its acceptance of such Note or an Ownership Interest therein 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 Indenture Trustee for any action taken, suffered or omitted by it as Indenture 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 and expenses based on time expended, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by any Issuer, or to any suit instituted by the Indenture Trustee, or to any suit instituted by any Noteholder or group of Noteholders, holding in the aggregate at least 25% of the Aggregate Series Principal Balance, or to any suit instituted by any Noteholder for the

 

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enforcement of the payment of the principal of or interest on any Note on or after the Maturity of such Note.

 

Section 4.14                             Waiver of Stay or Extension Laws .

 

Each Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim to take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; each Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of such law and covenants that it will not hinder, delay or impede the exercise of any power herein granted to the Indenture Trustee, but will suffer and permit the exercise of every such power as though no such law had been enacted.

 

Section 4.15                             Sale of Collateral .

 

(a)                                  The power to effect any public or private sale of any portion of the Collateral Pool pursuant to Section 4.03 or Section 4.04 shall not be exhausted by any one or more sales as to any portion of the Collateral remaining unsold, but shall continue unimpaired until either the entirety of the Collateral Pool shall have been sold or all amounts payable on the Notes and under this Indenture with respect thereto shall have been paid.  The Indenture Trustee may from time to time postpone any sale by public announcement made at the time and place of such sale.  The Indenture Trustee hereby expressly waives its right to any amount fixed by law as compensation for any such sale but such waiver does not apply to any amounts to which the Indenture Trustee is otherwise entitled under Section 5.04 .

 

(b)                                  Subject to Section 4.15(c) , the Indenture Trustee shall not sell the Collateral included in the Collateral Pool pursuant to Section 4.03 or Section 4.04 , unless:

 

(i)                                the Requisite Global Majority consents to or directs the Indenture Trustee to make the related sales; or

 

(ii)                             the proceeds of such liquidation would be greater than or equal to the Aggregate Series Principal Balance.

 

The foregoing provisions of this Section 4.15 shall not preclude or limit the ability of the Indenture Trustee or its designee to purchase all or any portion of the Collateral at any sale, public or private, and the purchase by the Indenture Trustee or its designee of all or any portion of the Collateral at any sale shall not be deemed a sale or disposition thereof for purposes of this Section 4.15(b) .

 

(c)                                   In the event that any Series of Notes is not fully paid on the applicable Rated Final Payment Date, the applicable Controlling Party shall have the right to require the sale of the Collateral, subject to Section 4.15(b)  and (d) .

 

(d)                                  In connection with a sale of all or any portion of the Collateral Pool:

 

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(i)                                any Holder or Holders of Notes may bid for and purchase the property offered for sale, and upon compliance with the terms of sale may hold, retain and possess and dispose of such property, without further accountability, and may, in paying the purchase money therefor, deliver any Outstanding Notes or claims for interest thereon in lieu of cash up to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon, and such Notes, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the Holders thereof after being appropriately stamped to show such partial payment;

 

(ii)                             the Indenture Trustee shall execute and deliver, without recourse, an appropriate instrument of conveyance transferring its interest in any portion of the Collateral Pool in connection with a sale thereof;

 

(iii)                          the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuers to transfer and convey any such Issuer’s interest in any portion of the Collateral Pool in connection with a sale thereof, and to take all action necessary to effect such sale;

 

(iv)                         no purchaser or transferee at such a sale shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys; and

 

(v)                            no purchaser or transferee at such a sale shall have been a prior owner of such Collateral if such prior owner was STORE Capital or an Affiliate thereof.

 

Section 4.16                             Action on Notes .

 

The Indenture Trustee’s right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture.  Neither the lien of the Mortgages and this Indenture nor any rights or remedies of the Indenture Trustee, any Series Enhancer or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against any Issuer or by the levy of any execution under such judgment upon any portion of the Collateral Pool.

 

ARTICLE V

 

THE INDENTURE TRUSTEE

 

Section 5.01                             Certain Duties and Responsibilities .

 

The Issuers hereby irrevocably constitute and appoint the Indenture Trustee, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in place and stead of the Issuers and in the name of the Issuers or in its own name or in the name of a nominee, from time to time in the Indenture Trustee’s discretion, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Indenture, all as set forth in this Section.

 

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(a)                                  The rights, duties and liabilities of the Indenture Trustee in respect of this Indenture shall be as follows:

 

(i)                                The Indenture Trustee shall have the full power and authority to do all things not inconsistent with the provisions of this Indenture that it may deem advisable in order to enforce the provisions hereof or to take any action with respect to a default or an Event of Default hereunder, or to institute, appear in or defend any suit or other proceeding with respect hereto, or to protect the interests of the Noteholders.  The Issuers shall prepare and file or cause to be filed, at the applicable Issuers’ expense, a UCC Financing Statement and any continuation statements, describing such Issuers as debtor, the Indenture Trustee as secured party and the Collateral included in the Collateral Pool as the collateral, in all appropriate locations in the State of Delaware promptly following the initial issuance of each Series of Notes, and within six months prior to each fifth anniversary of the original filing.  The Indenture Trustee is hereby authorized and obligated to make, at the expense of the applicable Issuers, all required filings and refilings with respect to which the Indenture Trustee receives written direction from an Issuer, necessary to preserve the liens created by the Mortgages and this Indenture as provided therein and herein.  The Indenture Trustee shall not be required to take any action to exercise or enforce the trusts hereby created which, in the opinion of the Indenture Trustee, shall be likely to involve expense or liability to the Indenture Trustee, unless the Indenture Trustee shall have received an agreement satisfactory to it in its reasonable discretion to indemnify it against such liability and expense.  Except as otherwise expressly provided herein, the Indenture Trustee shall not be required to ascertain or inquire as to the performance or observance of any of the covenants or agreements contained herein, or in any other instruments to be performed or observed by the Issuers.

 

(ii)                             Subject to the other provisions of this Article V , the Indenture Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Indenture Trustee that are specifically required to be furnished pursuant to any provisions of this Indenture, shall examine them to determine whether they are on their face in the form required by this Indenture to the extent expressly set forth herein.  If any such instrument is found on its face not to conform to the requirements of this Indenture in a material manner, the Indenture Trustee shall take such action as it deems appropriate to have the instrument corrected.  The Indenture Trustee shall not incur any liability in acting upon any signature, notice, request, consent, certificate, opinion, or other instrument reasonably believed by it to be genuine.  In administering the trusts hereunder, the Indenture Trustee may execute any of the trusts or powers hereunder directly or through its agents or attorneys; provided , that it shall remain liable for the acts of all such agents and attorneys.  The Indenture Trustee may, at its own expense (except as otherwise provided in Section 5.04 ), consult with counsel, accountants and other professionals to be selected and employed by it, and the Indenture Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice of any such Person nor for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts.

 

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(iii)                          The Indenture Trustee shall not, except as otherwise provided in Section 5.01(a)(i) , have any duty to make, arrange or ensure the completion of any recording, filing or registration of any instrument or other document (including any UCC Financing Statements), or any amendments or supplements to any of said instruments or to determine if any such instrument or other document is in a form suitable for recording, filing or registration, and the Indenture Trustee shall not have any duty to make, arrange or ensure the completion of the payment of any fees, charges or taxes in connection therewith.

 

(iv)                         Whenever in performing its duties hereunder, the Indenture Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee may, in the absence of bad faith on the part of the Indenture Trustee, rely upon (unless other evidence in respect thereof be specifically prescribed herein) an Officer’s Certificate of any applicable Issuer Member and such Officer’s Certificate shall be full warrant to the Indenture Trustee for any action taken, suffered or omitted by it on the faith thereof.

 

(v)                            Except in its capacity as successor to the Property Manager, the Indenture Trustee shall not have any obligations to see to the payment or discharge of any liens (other than the liens of this Indenture and the Mortgages) upon the Collateral included in the Collateral Pool, or to see to the application of any payment of the principal of or interest on any Note secured thereby or to the delivery or transfer to any Person of any property released from any such lien, or to give notice to or make demand upon any mortgagor, mortgagee, trustor, beneficiary or other Person for the delivery or transfer of any such property.  The Indenture Trustee (and any successor trustee or co-trustee in its individual capacity) nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens or encumbrances on the Collateral included in the Collateral Pool, arising as a result of the Indenture Trustee (or such successor trustee or co-trustee, as the case may be) acting negligently, in bad faith or with willful misconduct in its capacity as Indenture Trustee (or such successor trustee or co-trustee, as the case may be).

 

(vi)                         The Indenture Trustee shall not be concerned with or accountable to any Person for the use or application of any deposited moneys or of any property or securities or the proceeds thereof that shall be released or withdrawn in accordance with the provisions hereof or of any property or securities or the proceeds thereof that shall be released from the lien hereof or thereof in accordance with the provisions hereof or thereof and the Indenture Trustee shall not have any liability for the acts of other parties that are not in accordance with the provisions hereof.

 

(b)                                  The rights, duties and liabilities of the Indenture Trustee in respect of the Collateral Pool and this Indenture, in addition to those set forth in Section 5.01(a) , shall be as follows:

 

(i)                                except during the continuance of an Event of Default with respect to the Notes, the Indenture Trustee undertakes to perform such duties and only such

 

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duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and

 

(ii)                             the Indenture Trustee may, in the absence of bad faith on its part, conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture or any other Transaction Document, as applicable; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Indenture, to the extent expressly set forth herein.

 

(c)                                   Subject to Section 4.12 , in case an Event of Default known to the Indenture Trustee with respect to the Notes has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Indenture and the Mortgages, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs.

 

(d)                                  No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(i)                                this subsection shall not be construed to limit the effect of subsections (a) , (b)  or (c)  of this Section;

 

(ii)                             the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;

 

(iii)                          the Indenture 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 directions of any applicable party pursuant to a Transaction Document, the Requisite Global Majority, any Controlling Party or Noteholders of more than 50% (unless a lower or higher percentage of Noteholders is expressly permitted or required to authorize such action hereunder, in which case such lower or higher percentage) of the Aggregate Series Principal Balance, as the case may be, relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising or omitting exercise any trust or power conferred upon the Indenture Trustee, under this Indenture with respect to the Notes; and

 

(iv)                         the Indenture Trustee shall not be required to take notice or be deemed to have notice or knowledge of a default in the observance of any covenant contained in Section 9.06 or Article X unless either (i) a Responsible Officer of the Indenture Trustee shall have actual knowledge of such default or (ii) written notice of such default shall have been given by the Issuers or by any Noteholder to and received by a Responsible Officer of the Indenture Trustee.  In the absence of receipt of such

 

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notice or actual knowledge the Indenture Trustee may conclusively assume that is no default or Event of Default.

 

The Indenture Trustee shall perform the duties and obligations specified to be performed by the Indenture Trustee in the Property Management Agreement and in the other Transaction Documents.

 

Section 5.02                             Notice of Defaults .

 

The Indenture Trustee, promptly but not later than two (2) Business Days after a Responsible Officer of the Indenture Trustee acquires actual knowledge of the occurrence of any default under this Indenture, shall notify the Issuers the Noteholders and the Rating Agencies of any such default (a “ Notice of Default ”), unless all such defaults known to the Indenture Trustee shall have been cured before the giving of such notice or unless the same is rescinded and annulled, or waived by the Requisite Global Majority pursuant to Section 4.02 or Section 4.12 .  For the purpose of this Section 5.02 , the term “default” means any event which is, or after notice,  or direction of the Requisite Global Majority or lapse of time would become, an Event of Default with respect to the Notes.

 

Section 5.03                             Certain Rights of Indenture Trustee .

 

Subject to the provisions of Section 5.01 , in connection with this Indenture:

 

(a)                                  the Indenture Trustee may request and rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties as may be required by such party or parties pursuant to the terms of this Indenture or any other Transaction Document, as applicable;

 

(b)                                  any request or direction of an Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order and any resolution of the board of managers of the Issuer Member may be sufficiently evidenced by a Resolution;

 

(c)                                   whenever in the administration of this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;

 

(d)                                  the Indenture Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel rendered thereby shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(e)                                   [reserved];

 

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(f)                                    the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Indenture Trustee in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuers, personally or by agent or attorney;

 

(g)                                   the Indenture Trustee may, at its own expense (except as otherwise provided in Section 5.04 ), execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys of the Indenture Trustee; provided , that it shall remain liable for the acts of all such attorneys and agents;

 

(h)                                  the Indenture Trustee shall not be required to provide any surety or bond of any kind in connection with the execution or performance of its duties hereunder;

 

(i)                                      except with respect to the representations made by it in Section 5.06 , the Indenture Trustee shall not make any representations as to the validity or sufficiency of this Indenture;

 

(j)                                     the Indenture Trustee shall not at any time have any responsibility or liability with respect to the legality, validity or enforceability of the Collateral included in the Collateral Pool other than its failure to act in accordance with the terms of this Indenture or the Property Management Agreement;

 

(k)                                  The Indenture Trustee shall be under no obligation to exercise any of the powers vested in it by this Indenture or any other Transaction Document, as applicable, or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Noteholders, pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity satisfactory to the Indenture Trustee against the costs, expenses and liabilities which may be incurred therein or thereby (which in the case of the Requisite Global Majority will be deemed to be satisfied by a letter agreement with respect to such costs from such Noteholders); nothing contained herein shall, however, relieve the Indenture Trustee of the obligation, upon the occurrence of an Event of Default of which a Responsible Officer of the Indenture Trustee shall have actual knowledge, and such Event of Default having not been cured, to exercise such of the rights and powers vested in it by this Indenture, and to use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs;

 

(l)                                      The Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or the rights and powers conferred upon it by this Indenture;

 

(m)                              The right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not

 

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