Exhibit 10.1
EXECUTION VERSION
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,
STORE MASTER FUNDING XIV, LLC
as an Issuer,
and
EACH JOINING PARTY
each, as an Issuer,
STORE CAPITAL CORPORATION
as Property Manager and Special Servicer,
KEYBANK NATIONAL ASSOCIATION
as Back-Up Manager
and
CITIBANK, N.A.,
not individually but solely as Indenture Trustee
SIXTH AMENDED AND RESTATED PROPERTY MANAGEMENT AND
SERVICING AGREEMENT
Dated as of November 13, 2019
Net-Lease Mortgage Notes
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS | 2 | ||
Section 1.01 | Defined Terms | 2 | |
Section 1.02 | Other Definitional Provisions | 33 | |
Section 1.03 | Certain Calculations in Respect of the Leases and the Mortgage Loans | 34 | |
Section 1.04 | Fee Calculations | 35 | |
ARTICLE II REPRESENTATIONS AND WARRANTIES; RECORDINGS AND FILINGS; BOOKS AND RECORDS; DEFECT, BREACH, CURE, REPURCHASE AND SUBSTITUTION | 36 | ||
Section 2.01 | Representations and Warranties of STORE Capital, the Back-Up Manager and the Issuers | 36 | |
Section 2.02 | Recordings and Filings; Books and Records; Document Defects | 40 | |
Section 2.03 | Repurchase or Transfer and Exchange for Document Defects, Collateral Defects and Breaches of Representations and Warranties | 42 | |
Section 2.04 | Non Petition Agreement | 43 | |
ARTICLE III ADMINISTRATION AND SERVICING OF PROPERTIES, LEASES AND MORTGAGE LOANS | 44 | ||
Section 3.01 | Administration of the Properties, Leases and Mortgage Loans | 44 | |
Section 3.02 | Collection of Monthly Lease Payments and Monthly Loan Payments; General Receipts Accounts; Lockbox Transfer Accounts; Collection Account; Release Account | 45 | |
Section 3.03 | Advances | 49 | |
Section 3.04 | Withdrawals From the Collection Account, Release Account and Liquidity Reserve Account | 51 | |
Section 3.05 | Investment of Funds in the Collection Account, the Release Account, the Exchange Reserve Account and the Liquidity Reserve Account | 52 | |
Section 3.06 | Maintenance of Insurance Policies: Errors and Omissions and Fidelity Coverage | 54 | |
Section 3.07 | DSCR Reserve Account | 57 | |
Section 3.08 | Issuers, Custodian and Indenture Trustee to Cooperate; Release of Lease Files and Loan Files | 57 | |
Section 3.09 | Servicing Compensation: Interest on Advances | 58 | |
Section 3.10 | Property Inspections; Collection of Financial Statements; Delivery of Certain Reports | 60 |
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Section 3.11 | Quarterly Statement as to Compliance | 61 | |
Section 3.12 | Reports by Independent Public Accountants | 61 | |
Section 3.13 | Access to Certain Information; Delivery of Certain Information | 61 | |
Section 3.14 | Management of REO Properties and Properties Relating to Defaulted Assets | 62 | |
Section 3.15 | Release, Sale and Exchange of Defaulted Assets and Terminated Lease Properties | 63 | |
Section 3.16 | Renewals, Modifications, Waivers, Amendments; Consents and Other Matters | 66 | |
Section 3.17 | Transfer of Servicing Between Property Manager and Special Servicer; Record Keeping | 69 | |
Section 3.18 | Sub-Management Agreements | 70 | |
Section 3.19 | Casualty | 72 | |
Section 3.20 | Condemnation | 74 | |
Section 3.21 | Separateness Provisions | 77 | |
Section 3.22 | Estoppels | 78 | |
Section 3.23 | Environmental Matters | 78 | |
ARTICLE IV REPORTS | 80 | ||
Section 4.01 | Reports to the Issuers and the Indenture Trustee | 80 | |
Section 4.02 | Use of Agents | 82 | |
ARTICLE V THE PROPERTY MANAGER AND THE SPECIAL SERVICER | 83 | ||
Section 5.01 | Liability of the Property Manager, the Special Servicer and the Back-Up Manager | 83 | |
Section 5.02 | Merger, Consolidation or Conversion of the Property Manager, the Special Servicer and the Back-Up Manager | 83 | |
Section 5.03 | Limitation on Liability of the Property Manager, the Special Servicer and the Back-Up Manager | 83 | |
Section 5.04 | Term of Service; Property Manager and Special Servicer Not to Resign | 84 | |
Section 5.05 | Rights of Certain Persons in Respect of the Property Manager and the Special Servicer | 85 | |
Section 5.06 | Designation of Special Servicer by the Indenture Trustee | 85 | |
Section 5.07 | Property Manager or Special Servicer as Owner of Notes | 86 | |
ARTICLE VI SERVICER REPLACEMENT EVENTS | 86 | ||
Section 6.01 | Servicer Replacement Events | 86 | |
Section 6.02 | Appointment of Successor Servicer | 89 | |
Section 6.03 | Back-Up Manager | 91 | |
Section 6.04 | Additional Remedies of Issuers and the Indenture Trustee upon a Servicer Replacement Event | 93 |
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ARTICLE VII TRANSFERS AND EXCHANGES OF PROPERTIES AND MORTGAGE LOANS BY ISSUERS; RELEASE OF PROPERTIES AND MORTGAGE LOANS BY ISSUERS | 93 | ||
Section 7.01 | Exchange of Mortgage Loans and Properties | 93 | |
Section 7.02 | Sale Pursuant to Third Party Purchase Option | 96 | |
Section 7.03 | Transfer of Lease to New Property | 96 | |
Section 7.04 | Release of Property by an Issuer | 97 | |
Section 7.05 | Terminated Lease Property and REO Property | 97 | |
Section 7.06 | Risk-Based or Credit Risk Substitution | 98 | |
Section 7.07 | Disposition Period | 98 | |
Section 7.08 | Qualified Deleveraging Event | 98 | |
Section 7.09 | Series Collateral Release | 99 | |
Section 7.10 | Like-Kind Exchange | 99 | |
Section 7.11 | Exchange Reserve Account | 101 | |
Section 7.12 | Triple A Release Event | 102 | |
Section 7.13 | 102 | ||
ARTICLE VIII TERMINATION | 103 | ||
Section 8.01 | Termination | 103 | |
ARTICLE IX MISCELLANEOUS PROVISIONS | 103 | ||
Section 9.01 | Amendment | 103 | |
Section 9.02 | Counterparts | 103 | |
Section 9.03 | Governing Law | 103 | |
Section 9.04 | Notices | 104 | |
Section 9.05 | Severability of Provisions | 104 | |
Section 9.06 | Effect of Headings and Table of Contents | 104 | |
Section 9.07 | Notices to the Rating Agencies and Others | 105 | |
Section 9.08 | Successors and Assigns: Beneficiaries | 106 | |
Section 9.09 | Complete Agreement | 106 | |
Section 9.10 | Consent to Jurisdiction | 106 | |
Section 9.11 | No Proceedings | 106 | |
Section 9.12 | Cooperation | 106 | |
Section 9.13 | Acknowledgment of Receipts by Indenture Trustee | 106 |
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EXHIBITS
EXHIBIT A | [RESERVED] | |
EXHIBIT B-l | FORM OF REQUEST FOR RELEASE — PROPERTY MANAGER | |
EXHIBIT B-2 | FORM OF REQUEST FOR RELEASE — SPECIAL SERVICER | |
EXHIBIT C-1 | FORM OF NOTICE AND ACKNOWLEDGMENT OF DESIGNATION OF REPLACEMENT SPECIAL SERVICER | |
EXHIBIT C-2 | FORM OF ACKNOWLEDGMENT BY PROPOSED SPECIAL SERVICER ACCEPTING APPOINTMENT | |
EXHIBIT D | FORM OF LIMITED POWERS OF ATTORNEY FROM ISSUER OR INDENTURE TRUSTEE | |
EXHIBIT E | FORM OF ESTOPPEL CERTIFICATE, SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT | |
EXHIBIT F | FORM OF JOINDER | |
EXHIBIT G | FORM OF CERTIFICATE UNDER SECTION 7.01(b) | |
EXHIBIT H | FORM OF DETERMINATION DATE REPORT | |
EXHIBIT I | CALCULATION OF FIXED CHARGE COVERAGE RATIOS | |
EXHIBIT J-1 | FORM OF MASTER EXCHANGE AGREEMENT | |
EXHIBIT J-2 | FORM OF EXCHANGE AGREEMENT | |
EXHIBIT K-1 | FORM OF ESCROW AGREEMENT | |
EXHIBIT K-2 | FORM OF ESCROW AGREEMENT |
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This SIXTH AMENDED AND RESTATED PROPERTY MANAGEMENT AND SERVICING AGREEMENT, dated as of November 13, 2019 (this “Agreement”), is made among STORE Master Funding I, LLC, as an issuer (an “Issuer”), STORE Master Funding II, LLC, as an issuer (an “Issuer”), STORE Master Funding III, LLC, as an issuer (an “Issuer”), STORE Master Funding IV, LLC, as an issuer (an “Issuer”), STORE Master Funding V, LLC, as an issuer (an “Issuer”), STORE Master Funding VI, LLC, as an issuer (an “Issuer”), STORE Master Funding VII, LLC, as an issuer (an “Issuer”), STORE Master Funding XIV, LLC, as an issuer (an “Issuer”), each Joining Party, each as an issuer (each, an “Issuer”), STORE Capital Corporation, a Maryland corporation, as property manager and special servicer (together with its successors in such capacities, the “Property Manager” and “Special Servicer,” respectively), Citibank, N.A., not individually but solely as indenture trustee (together with its successors in such capacity, the “Indenture Trustee”) and KeyBank National Association, as Back-Up Manager (together with its successors in such capacity, the “Back-Up Manager”).
PRELIMINARY STATEMENT
As of the Initial Closing Date certain of the Issuers owned certain Properties and related Leases and, as of each successive Series Closing Date, the applicable Issuer will own certain Properties and related Leases and the Mortgage Loans as set forth in the applicable Series Supplement, and upon the issuance of the Notes under the Indenture, the applicable Issuer will grant a first priority security interest in its right, title and interest in and to such Properties, Leases and Mortgage Loans to the Indenture Trustee as security for the indebtedness evidenced by the Indenture and the Notes issued under the Indenture. The Property Manager has agreed to provide property management services with respect to the Properties and to service the Leases and the Mortgage Loans in accordance with this Agreement.
WHEREAS, STORE Master Funding I, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager, entered into a Property Management Agreement, dated August 23, 2012 (the “First Predecessor Property Management Agreement”);
WHEREAS, STORE Master Funding I, STORE Master Funding II, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager, entered into an amended and restated Property Management Agreement, dated March 27, 2013 (the “Second Predecessor Property Management Agreement”);
WHEREAS, STORE Master Funding I, STORE Master Funding II, STORE Master Funding III, STORE Master Funding IV, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager, entered into a further Amended and Restated Property Management Agreement, dated December 3, 2013 (the “Third Predecessor Property Management Agreement”);
WHEREAS, STORE Master Funding I, STORE Master Funding II, STORE Master Funding III, STORE Master Funding IV, STORE Master Funding V, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager, entered into a further Amended and Restated Property Management Agreement, dated May 6, 2014 (the “Fourth Predecessor Property Management Agreement”);
WHEREAS, STORE Master Funding I, STORE Master Funding II, STORE Master Funding III, STORE Master Funding IV, STORE Master Funding V, STORE Master Funding VI, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager, entered into a further Amended and Restated Property Management Agreement, dated April 16, 2015, which was amended pursuant to the First Amendment to the Fourth Amended and Restated Property Management and Servicing Agreement, dated as of July 10, 2015, and further amended pursuant to the Second Amendment to the Fourth Amended and Restated Property Management and Servicing Agreement, dated as of September 17, 2018 (the “Fifth Predecessor Property Management Agreement”);
WHEREAS, STORE Master Funding I, STORE Master Funding II, STORE Master Funding III, STORE Master Funding IV, STORE Master Funding V, STORE Master Funding VI, STORE Master Funding VII, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager, entered into a further Amended and Restated Property Management Agreement, dated as of October 22, 2018 (the “Sixth Predecessor Property Management Agreement”; and together with the First Predecessor Property Management Agreement, the Second Predecessor Property Management Agreement, the Third Predecessor Property Management Agreement, the Fourth Predecessor Property Management Agreement and the Fifth Predecessor Property Management Agreement, the “Predecessor Property Management Agreement”);
WHEREAS, pursuant to Section 9.01 of the Predecessor Property Management Agreement, subject to the provisions of the Indenture governing amendments, supplements and other modifications to the Predecessor Property Management Agreement, such Agreement may be amended by the parties thereto from time to time by the mutual written agreement signed by the parties thereto;
WHEREAS, pursuant to Section 8.04 of the Indenture, the Issuers and the other parties to the Predecessor Property Management Agreement may amend the Predecessor Property Management Agreement in connection with a New Issuance without the consent of the Noteholders;
WHEREAS, as evidenced by their respective signatures hereto, the Issuers and the other parties to the Predecessor Property Management Agreement desire to amend the Predecessor Property Management Agreement in its entirety as set forth herein; and
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DefinedTerms.
Whenever used in this Agreement, including in the Preliminary Statement, the words and phrases set forth below, unless the context otherwise requires, shall have the meanings specified in this Section 1.01. Capitalized terms used in this Agreement, including the Preliminary Statement, and not defined herein, unless the context otherwise requires, shall have the respective meanings specified in Section 1.01 of the Indenture (as defined below).
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“4-Wall FCCR”: A unit’s FCCR before taking into account indirect corporate overhead or general and administrative costs, equal to the ratio of (1) the sum of the unit’s EBITDAR, less all non-recurring income, to (2) the unit’s Fixed Charges payable in respect of the unit, in each case for the period of time as to which such figure is presented.
“Additional Servicing Compensation”: Property Manager Additional Servicing Compensation and Special Servicer Additional Servicing Compensation.
“Additional Subsidies”: Funds deposited in or held in an Exchange Account other than funds that constitute Relinquished Property Proceeds; provided any such funds may not be already subject to the lien of the Indenture.
“Advance”: Any P&I Advance or Property Protection Advance.
“Advance Interest”: Interest accrued on any Advance at the Reimbursement Rate and payable to the Property Manager, the Back-Up Manager or the Indenture Trustee, as the case may be, each in accordance with Section 3.09(e).
“Aggregate Appraised Value”: On any date of determination, the sum of the Appraised Values of all Properties.
“Aggregate Collateral Value”: On any date of determination, the sum of the Collateral Values of the Mortgage Loans and Properties in the Collateral Pool.
“Agreement”: This Sixth Amended and Restated Property Management and Servicing Agreement and all amendments hereof and supplements hereto.
“Allocated Hybrid Amount”: With respect to a Property relating to a Hybrid Lease, a fraction, (a) the numerator of which is the appraised value of the Improvements located on such Property (as set forth in the most recent appraisal obtained in accordance with the definition of Appraised Value) and (b) the denominator of which is the sum of the appraised values of the Improvements located on all Properties relating to such Hybrid Lease (as set forth in the most recent appraisal obtained in accordance with the definition of Appraised Value).
“Allocated Loan Amount”: With respect to any Property or Mortgage Loan at any time, the product of (i) the Aggregate Series Principal Balance at such time and (ii) a fraction, (a) the numerator of which is the Collateral Value of such Property or Mortgage Loan at such time and (b) the denominator of which is the sum of (A) the Aggregate Collateral Value at such time and (B) the product of (1) the Aggregate Collateral Value of Post-Closing Properties and (2) a fraction, the numerator of which is the outstanding balance of the Post-Closing Acquisition Reserve Account and the denominator of which is the initial balance of the Post-Closing Acquisition Reserve Account.
“ALTA”: American Land Title Association, or any successor thereto.
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“Appraised Value”: With respect to any Property means an appraised value obtained in accordance with the Indenture and determined pursuant to an independent appraisal completed by an MAI certified appraiser in accordance with the Uniform Standards of Professional Appraisal Practice and which takes into account the leased fee value of the related buildings and land of such Property, consistent with industry standards, and excludes the value of trade equipment and other tangible personal property and business enterprise value, and (1) with respect to any Property that secures a Mortgage Loan included in the Collateral Pool (other than any such Property relating to a Qualified Substitute Loan added since the most recent Issuance Date) is the most recent appraisal report completed by an MAI certified appraiser and obtained by, or caused to be obtained by, the Property Manager with respect to such Property, (2) with respect to any Property in the Collateral Pool that does not secure a Mortgage Loan (other than Qualified Substitute Properties added since the most recent Issuance Date), is the most recent appraisal report completed by an MAI certified appraiser and obtained, or caused to be obtained by, the Property Manager for such Property in connection with the most recent Issuance Date and (3) with respect to any Qualified Substitute Property or Property relating to a Qualified Substitute Loan added to the Collateral Pool since the most recent Issuance Date, is the most recent appraisal report completed by an MAI certified appraiser and obtained by, or caused to be obtained by, the Property Manager for such Property or Qualified Substitute Property in conjunction with the related substitution. Notwithstanding that the term “Owned Property” used throughout this Agreement and the other Transaction Documents includes the commercial real estate property subject to the ground lease and any sublease related to a Hybrid Lease but excludes any Improvements located on such property, for the purpose of this definition of “Appraised Value,” the term “Owned Property” includes any Improvements located on such property related to a Hybrid Lease.
“Assignment of Leases”: With respect to any Mortgage Loan, any assignment of leases, rents and profits or similar document or instrument executed by the Borrower in connection with the origination or subsequent modification or amendment of the related Mortgage Loan.
“Available Amount”: The Available Amount on any Payment Date will consist of (i) all amounts received in respect of the Collateral Pool during the related Collection Period, (ii) all amounts on deposit in the Collection Account (other than amounts relating to any Excluded Asset) on the related Determination Date, including amounts earned, if any, on the investment of funds on deposit in the Collection Account, the Exchange Reserve Account, if applicable, and the Release Account during the related Collection Period, (iii) Unscheduled Proceeds, (iv) amounts received on account of payments under any Lease Guaranties or Loan Guaranties, (v) amounts received on account of payments under the Guaranty, (vi) amounts received in connection with a Voluntary Prepayment or Early Refinancing Prepayment, (vii) any amounts that have been released from the Liquidity Reserve Account to the Payment Account to be treated as Available Amounts and (viii) in connection with the Exchange Program, amounts that have been transferred to the Release Account from the Exchange Account for such Payment Date, if applicable;provided, however, that the following amounts will be excluded from Available Amount: (a) amounts on deposit in the Release Account and not transferred to the Collection Account for such Payment Date, (b) the amount of any Workout Fees, Liquidation Fees or Additional Servicing Compensation, (c) amounts withdrawn from the Collection Account to reimburse the Property Manager, the Indenture Trustee or the Back-Up Manager, as applicable, for any unreimbursed Advances, including any Nonrecoverable Advances (plus interest thereon) and to pay the Property Management Fee, the Back-Up Fee, any Special Servicing Fee and any Emergency Property Expenses, (d) amounts required to be paid by an Issuer as lessor under the Leases in respect of franchise or similar taxes, (e) any amount received from a Tenant or Borrower as reimbursement for any cost paid by or on behalf of an Issuer as lessor or lender under any Lease or Mortgage Loan, (f) any amounts collected by or on behalf of an Issuer as lessor or lender and held in escrow or impound to pay future obligations due under a Lease or Mortgage Loan, as applicable, (g) amounts received in connection with a Series Collateral Release, (h) amounts on deposit in the Exchange Account that have not been transferred to the Release Account for such Payment Date, if applicable and (i) any amounts received on account of payments relating to any Excluded Asset.
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“Back-Up Fee”: With respect to each Mortgage Loan and Property, the monthly fee payable to the Back-Up Manager pursuant to Section 3.09(f) in an amount equal to the product of (i) the Back-Up Fee Rate and (ii) the Aggregate Series Principal Balance as of the related Determination Date.
“Back-Up Fee Rate”: With respect to each Property, a monthly rate equal to the product of (i) one-twelfth and (ii) 0.010%.
“Back-Up Manager”: As defined in the preamble.
“Back-Up Servicing Transfer Date”: As defined in Section 6.03(c).
“Bankruptcy Code”: The federal Bankruptcy Code of 1978, Title 11 of the United States Code, as amended from time to time.
“Borrower”: The obligor or obligors on a Mortgage Note, including any Person that has acquired the related Collateral and assumed the obligations of the original obligor under the Mortgage Note.
“Casualty and Condemnation Proceeds Sub-Account”: A sub-account of the Collection Account into which shall be deposited insurance proceeds arising from an Insured Casualty and amounts received in connection with a Condemnation.
“Change of Control”: Either the acquisition of the beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of 35% or more of the common stock of STORE Capital by a single Person or group of related Persons or the sale of all or substantially all of the assets of STORE Capital.
“Collateral Defect”: As defined in Section 2.03(a).
“Collateral Value”: As of any determination date (i) with respect to each Property owned by an Issuer not relating to a Hybrid Lease, such Property’s Appraised Value, (ii) with respect to a Property owned by an Issuer relating to a Hybrid Lease, the sum of (1) the appraised value of the land or ground lease interest in the land comprising such Property (as set forth in the most recent appraisal obtained in accordance with the definition of Appraised Value) and (2) the lesser of (a) the appraised value of the Improvements located on such Property (as set forth in the most recent appraisal obtained in accordance with the definition of Appraised Value) and (b) the outstanding principal balance of the loan secured by a mortgage or deed of trust, as applicable, on the Improvements located on, and ground lease interest in, such Property multiplied by the Allocated Hybrid Amount with respect to such Property and (iii) with respect to each Loan, the lesser of (1) the Appraised Value of the related Underlying Mortgaged Property or Underlying Mortgaged Properties and (2) the outstanding principal balance of such Loan.
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“Collection Account”: The segregated account or accounts created and maintained by the Property Manager in the name of the Issuers pursuant to Section 3.02(d) and, in each case, pledged to the Indenture Trustee for the benefit of the Noteholders, which shall be entitled “STORE Master Funding I, LLC, Blocked Collection Account” or, with respect to any account in the name of any other Issuer, such title as the Property Manager and the Indenture Trustee shall agree.
“Collection Account Bank”: As defined in Section 3.02(d) hereof.
“Collection Period”: With respect to any Payment Date, the period commencing on the day immediately following the Determination Date in the month immediately preceding the month in which such Payment Date occurs (or, in the case of the initial Payment Date, commencing on the Initial Closing Date) and ending with the Determination Date related to such Payment Date.
“Condemnation”: As defined in Section 3.20(a) hereof.
“Condemnation Proceeds”: All proceeds received in connection with the Condemnation of any Property or Improvements in connection with a Hybrid Lease other than proceeds applied to the restoration of such Property or released to the related Tenant or Borrower or the applicable Issuer in accordance with this Agreement or payable to the applicable Issuer in accordance with Section 3.20(b).
“Consolidated” (or “consolidated”) or “Consolidating” (or “consolidating”): When used with reference to any financial term in this Agreement, the aggregate for two or more Persons of the amounts signified by such term for all such Persons determined on a consolidated basis in accordance with GAAP.
“Corrected Unit”: Any Property or Mortgage Loan that had been a Specially Managed Unit but with respect to which (a) as of the date of determination, no circumstance identified in clauses (i) through (v) of the definition of the term “Specially Managed Unit” then exists and (b) one or more of the following as are applicable occur:
(i) if a circumstance described in clause (i)of the definition of the term “Specially Managed Unit” previously existed with respect to such Property or Mortgage Loan, such condition shall have ceased to exist and the relatedTenantorBorrowerhas made two consecutive full and timelyMonthly Lease PaymentsorMonthly Loan Paymentsunder the terms of the relatedLeaseorMortgage Loan(as such terms may be changed or modified in connection with abankruptcy or similar proceeding involvingthe relatedTenantorBorroweror by reason of a modification, waiver oramendmentgranted or agreed to by theSpecial Servicer);
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(ii) if a default described in clause (ii)of the definition of the term “Specially Managed Unit” previously existed with respect to such Property or Mortgage Loan, such default is cured;
(iii) if a circumstance described in clause (iii)of the definition of the term “Specially Managed Unit” previously existed with respect to such Property or Mortgage Loan, such circumstances cease to exist in thegood faith and reasonable judgment oftheSpecial Servicer;
(iv) if a circumstance described in clause (iv)of the definition of the term “Specially Managed Unit” previously existed with respect to such Property or Mortgage Loan, aLeaseorMortgage Loanis entered into with respect to suchPropertyin accordance with the terms of thisAgreement; and
(v) if theProperty Managerpreviously received the notice described in clause (v)of the definition of the term “Specially Managed Unit” with respect to such Property or Mortgage Loan, theProperty Managerreceives notice that the relatedTenantorBorrowerwill resume makingMonthly Lease Paymentsunder suchTenant’s LeaseorMonthly Loan Paymentsunder suchBorrower’sMortgage Loanand suchTenantorBorrowerhas made two consecutive full and timelyMonthly Lease PaymentsorMonthly Loan Paymentsunder the terms of the relatedLeaseorMortgage Loan(as such terms may be changed or modified in connection with abankruptcy or similar proceeding involvingthe relatedTenantorBorroweror by reason of a modification, waiver oramendmentgranted or agreed to by theSpecial Servicer).
“Custody Agreement”: The Second Amended and Restated Custody Agreement, dated as of May 6, 2014, as may be amended from time to time, among STORE Master Funding I, LLC, STORE Master Funding II, LLC, STORE Master Funding III, LLC, STORE Master Funding IV, LLC, STORE Master Funding V, LLC, the Indenture Trustee, the Custodian and each joining party thereto, each such joining party, as an Issuer, as amended by that certain Joinder Agreement, dated as of April 16, 2015, among STORE Master Funding I, LLC, STORE Master Funding II, LLC, STORE Master Funding III, LLC, STORE Master Funding IV, LLC, STORE Master Funding V, LLC, STORE Master Funding VI, LLC, the Indenture Trustee, the Custodian and each joining party thereto, each such joining party, as an Issuer, as further amended by that certain Joinder Agreement, dated as of November 13, 2019, among STORE Master Funding I, LLC, STORE Master Funding II, LLC, STORE Master Funding III, LLC, STORE Master Funding IV, LLC, STORE Master Funding V, LLC, STORE Master Funding VI, LLC, STORE Master Funding VII, LLC, STORE Master Funding XIV, LLC, the Indenture Trustee, the Custodian and each joining party thereto, each such joining party, as an Issuer,1 and as the same may be further amended or supplemented from time to time.
1NTD: Joinder to be added to closing checklist.
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“Default Interest”: With respect to any (i) Lease, any amounts collected thereon (other than late payment charges or amounts representing the Third Party Option Price paid by the related Tenant or any third party) that represent penalty interest accrued at the rate specified in such Lease and (ii) Mortgage Loan, any amounts collected thereon (other than late payments, late payment charges or Yield Maintenance Premiums) that represent penalty interest in excess of interest on the principal balance of such Mortgage Loan accrued at the related Interest Rate.
“Defaulted Asset”: Any Mortgage Loan or Lease and Property included in the Collateral Pool (a) with respect to which a Monthly Lease Payment or Monthly Loan Payment is overdue for more than 30 consecutive days (without taking into account the required giving of notices under such Lease or Mortgage Loan), or (b) with respect to which the related Tenant or Borrower is otherwise in default beyond any applicable notice, grace or cure period, and which Lease or Mortgage Loan has not been rejected in any bankruptcy, insolvency or similar proceeding.
“Defaulting Party”: As defined in Section 6.02(a).
“Deficiency”: As defined in Section 4.01(f).
“Delinquent Asset”: Any Mortgage Loan or Lease and Property included in the Collateral Pool (other than a Defaulted Asset), with respect to which any Monthly Loan Payment or Monthly Lease Payment, as applicable, is overdue for more than 60 consecutive days (without taking into account the required giving of notices under such Lease or Mortgage Loan), and which Lease or Mortgage Loan has not been rejected in any bankruptcy, insolvency or similar proceeding.
“Determination Date Report”: As defined in Section 4.01(a).
“Disbursement Occurrence”: A disbursement of funds in an Exchange Account pursuant to the terms of a Master Exchange Agreement.
“Document Defect”: As defined in Section 2.02(c).
“Due Date”: With respect to any Mortgage Loan or Lease, the day of each calendar month on which the Monthly Loan Payment or Monthly Lease Payment, as applicable, with respect thereto is due.
“Emergency Property Expenses”: As defined in Section 3.03(e).
“Environmental Insurer”: Any Qualified Insurer that issues Environmental Policies relating to any of the Mortgage Loans or Properties.
“Environmental Policy”: Any insurance policy issued by an Environmental Insurer, together with any endorsements thereto, providing insurance coverage for losses, with respect to certain Mortgage Loans or Properties, caused by the presence of Hazardous Substances on, or the migration of Hazardous Substances from, the related Properties.
“Escrow Agent”: As defined in the applicable Master Exchange Agreement.
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“Escrow Agreement”: An escrow agreement that may be entered into, among the Escrow Agent, the Qualified Intermediary, STORE Capital, the Issuers and any joining party thereto, as amended, restated, supplemented or otherwise modified from time to time, substantially in the form of Exhibit K-1 or Exhibit K-2 hereto.
“Escrow Payment”: Any payment received by the Property Manager or the Special Servicer for the account of any Tenant or Borrower for application toward the payment of real estate taxes, assessments, insurance premiums, ground rents (if applicable) and similar items in respect of the related Property.
“Exchange”: An exchange transaction pursuant to the terms of a Master Exchange Agreement.
“Exchange Account”: As defined in the applicable Master Exchange Agreement.
“Exchange Act”: Securities and Exchange Act of 1934, as amended.
“Exchange Cash Collateral”: As defined in Section 7.11(b).
“Exchange Commencement Date”: The date on which a Relinquished Property is transferred in connection with an Exchange pursuant to a Master Exchange Agreement.
“Exchange Reserve Account”: As defined in Section 7.11(a).
“Exchanged Assets”: Collectively, all Exchanged Loans, Exchanged Properties and Exchanged Hybrid Leases.
“Exchanged Hybrid Lease”: A Hybrid Lease that is exchanged for a Qualified Substitute Hybrid Lease or Qualified Substitute Hybrid Property in a transaction with a third party or an Affiliate of STORE Capital and subject to the conditions and limitations described in this Agreement.
“Exchanged Loan”: A Mortgage Loan that is exchanged for a Qualified Substitute Property or Qualified Substitute Loan, in each case, in a transaction with a third party or an Affiliate of STORE Capital and subject to the conditions and limitations described in this Agreement.
“Exchanged Property”: A Property and the related Lease not relating to a Hybrid Lease that is exchanged for a Qualified Substitute Property in a transaction with a third party or an Affiliate of STORE Capital and subject to the conditions and limitations described in this Agreement.
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“Excluded Asset”: A Property owned by an Issuer that has been identified by the applicable Issuer as not included in the Collateral Pool and that has been certified by the applicable Issuer in an Officer’s Certificate delivered to the Property Manager and the Indenture Trustee as satisfying the following conditions: (i) such Property complies, in all material respects, with all of the representations and warranties made with respect to Owned Properties under the Indenture (with each date therein referring to the date of acquisition of such Property), (ii) such Property has received an environmental site assessment in connection with the acquisition of the related Excluded Asset that did not identify any material environmental items, (iii) the contractual amount of any third party option price with respect to such Property is at least equal to the fair market value of such Property, (iv) such Property is leased pursuant to a “triple-net” lease or Hybrid Lease, (v) such Property is consistent with STORE Capital’s investment criteria and does not present any material risk or contingent obligations, taking into account the Servicing Standard and the best interests of the Noteholders and (vi) such Property has an Appraised Value that, when combined with all Excluded Assets then owned by the Issuers, would not exceed 5% of the Aggregate Collateral Value (for purposes of this provision, the Aggregate Collateral Value as measured as of the most recent Issuance Date).
“Fair Market Value”: At any time, a price determined by the Property Manager (or by the Special Servicer with respect to a Specially Managed Unit) in accordance with the Servicing Standard to be the most probable price that the related Lease, Mortgage Loan or Property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus, plus any unreimbursed Advances, Emergency Property Expenses, Liquidation Fees, Workout Fees, Special Servicing Fees and Extraordinary Expenses (plus interest thereon as applicable), in each case, related to such Lease, Mortgage Loan or Property. In making any such determination, the Property Manager or Special Servicer may obtain an MAI certified appraisal of the related Property and shall assume the consummation of a sale as of a specified date (and, with respect to Properties not securing Mortgage Loans, the passing of title from the seller to the buyer) under conditions whereby: (i) the buyer and the seller are typically motivated; (ii) both parties are well informed or well advised, and acting in what they consider their best interests; (iii) a reasonable time is allowed for exposure in the open market; (iv) payment is made in terms of cash in United States dollars or in financial arrangements comparable thereto; and (v) the price represents the normal consideration for such Lease, Mortgage Loan or Property unaffected by special or creative financing or sales concessions granted by anyone associated with the sale.
“Fixed Charge Coverage Ratio” or “FCCR”: The fixed charge coverage ratio for a Tenant determined in accordance with the provisions of Exhibit I attached hereto.
“FNMA”: Federal National Mortgage Association or any successor.
“GAAP”: Generally accepted accounting principles as in effect in the United States, consistently applied, as of the date of such application.
“General Receipts Account”: The account or accounts created and maintained pursuant to Section 3.02(b).
“General Receipts Account Bank”: As defined in Section 3.02(b).
“Ground Lease”: With respect to any Property, the lease agreement, if any, between the Ground Lessor thereof and the applicable Issuer with respect to the land comprising such Property.
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“Ground Lessor”: The fee owner (or intermediate lessor) of the land with respect to any Property which is subject to a Ground Lease.
“Hazardous Substances”: As defined in Section 3.23(a).
“Hybrid Lease”: A transaction pursuant to which the related Issuer acquires fee title to or a ground lease interest in the underlying real property (with no fee interest in the Improvements located on such real property) and (i) as ground lessor, enters into a ground lease with respect to a Property and, simultaneously, (ii) as lender, makes a loan to the entity that is the ground lessee under such ground lease, or an affiliate thereof, secured by a mortgage or deed of trust, as applicable, on such ground lessee’s fee or leasehold interest in the Improvements located on the related Property and leasehold interest in the real property subject to such ground lease.
“Hybrid Lease FCCR” The aggregate FCCR for all Properties under a Hybrid Lease, which includes the sum of all cash flows for all of the Properties and related Leases and loan components under such Hybrid Lease. Only one Hybrid Lease FCCR is reported for each Hybrid Lease that is included in the Collateral Pool.
“Improvements”: The buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements and improvements erected or located on the related Property.
“Indenture”: The Seventh Amended and Restated Master Indenture, dated as of November 13, 2019, among STORE Master Funding I, LLC, STORE Master Funding II, LLC, STORE Master Funding III, LLC, STORE Master Funding IV, LLC, STORE Master Funding V, LLC, STORE Master Funding VI, LLC, STORE Master Funding VII, LLC, STORE Master Funding XIV, LLC and the Indenture Trustee, and any supplement thereto relating to the issuance of any series of Notes, including all amendments and supplements thereto.
“Insurance Proceeds”: Proceeds paid under any Property Insurance Policy, to the extent such proceeds are not applied to the restoration of the related Property or Improvements in connection with a Hybrid Lease in accordance with this Agreement or payable to the Issuers pursuant to Section 3.19(b)(i).
“Insured Casualty”: As defined in Section 3.19(a).
“Interest Accrual Period”: With respect to each Due Date related to any Mortgage Loan, the period specified in the related Loan Documents.
“Interest Carry-Forward Amount”: As defined in the Indenture.
“Interest Rate”: With respect to any Mortgage Loan, the annualized rate at which interest is scheduled (in the absence of a default) to accrue on such Mortgage Loan from time to time during any Interest Accrual Period in accordance with the related Mortgage Note and applicable law, as such rate may be modified in accordance with this Agreement or in connection with a bankruptcy, insolvency or similar proceeding involving the related Borrower.
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“Issuance Date”: With respect to any Series of Notes, the applicable Series Closing Date.
“Joinder Agreement”: With respect to any Series of Notes, the Joinder Agreement, dated as of the applicable Series Closing Date, among the applicable Joining Party, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager, substantially in the form ofExhibit F attached hereto.
“Joining Party”: Any STORE SPE, as indicated in the applicable Joinder Agreement.
“KeyBank”: KeyBank National Association.
“Land and Building Lease”: A lease pursuant to which land, buildings and other Improvements are leased by a Tenant from the related land and building lessor.
“Lease”: Each lease listed on the Owned Property Schedule from time to time. As used herein and in the other Transaction Documents, the term “Lease” includes (i) the related lease agreement and all amendments, modifications and waiver agreements related thereto and (ii) with respect to a Hybrid Lease, the ground lease and any sublease related to such Hybrid Lease and the loan secured by a mortgage or deed of trust, as applicable, on the Improvements on, and the leasehold interest in, the Property subject to such ground lease.
“Lease Documents”: Any related lease agreement, non-disturbance agreement, guaranty or other agreement or instrument, to the extent made for the benefit of the related Originator.
“Lease Expiration Date”: With respect to any Lease, the date specified in such Lease (as in effect on the Initial Closing Date or, if later, the date such Lease was first included in the Collateral Pool) on which the term of the Lease expires or such earlier date on which the Tenant has an option to terminate the Lease (as in effect on the Initial Closing Date or, if later, the date such Lease was first included in the Collateral Pool), without regard to any unexercised options to renew or extend such Lease or change in or modification of such terms in connection with a bankruptcy or similar proceeding involving the related Tenant or a modification, waiver, extension or amendment of such Lease granted or agreed to by the Special Servicer pursuant to Section 3.16.
“Lease File”: With respect to each Property and the related Lease, the following documentation:
(i) the executed original of theLeaseand anyamendment, modification, waiveragreementor instrument related thereto or a copy thereof certified to be true, correct and complete by the relatedIssuer;
(ii) the executed original of anyLease Guarantyand anyamendment, modification, waiveragreementor instrument related thereto to the extent in the possession of the relatedIssueror a copy thereof certified to be true, correct and complete by suchIssuer;
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(iii) a file stamped copy of anyUCC Financing Statementsin favor of theIndenture Trusteerequired to be filed with respect to suchPropertyin order to perfect theIndenture Trustee’s lien with respect to suchLeaseor, if a file stamped copy has not been returned from one applicable filing office, a copy of suchUCC Financing Statementas certified by theProperty Managerto be a true and complete copy of the original that will be submitted for recording;
(iv) the executed original recordedMortgageand any assignment thereof in favor of theCollateral Agent, on behalf of theIndenture Trustee, with respect to the relatedProperty, or, if such originalMortgageand/or any assignment thereof has not been returned from the applicable public recording office, a complete copy thereof delivered by the relatedOriginatoror the relatedIssueror any applicabletitle companythat closed or is closing suchMortgageas a true and complete copy of the original thereof submitted for recording (which delivery shall be deemed to be a certification by suchOriginatorand suchIssuerthat such copy is a true and complete copy of the original submitted for recording);
(v) an original or copy of the lender’s title insurance policy relating to theMortgagefor suchProperty, together with all riders thereto showing theIndenture Trusteeor theCollateral Agent, on behalf of theIndenture Trustee, and its successors and assigns as the named insured, or, with respect to eachPropertyas to which a title insurance policy has not yet been issued, a policy meeting the foregoing description as evidenced by a commitment for title insurance “marked up” together with a closing instruction letter setting forth such requirements of the lender’s title insurance policy (or by “pro-forma” otherwise agreed to by thetitle company) as of the closing date of the acquisition of suchProperty;
(vi) aTenantestoppel certificate, if any, to the extent in the possession of the relatedIssueror the relatedOriginator, in which theTenantacknowledges that theLeaseis in full force and effect, that the lessor is not in default under the terms of theLease, and that no circumstances currently exist that would give theTenantthe right to abate or offset its rent;
(vii) evidence of insurance showing the relatedIssueror itsAffiliateas the insured or an additional insured party under certain casualty insurance policies, if any;
(viii) with respect to anyLeaseto a franchisee, a copy of the related franchiseagreement, to the extent in the possession of the relatedIssueror the relatedOriginator;
(ix) theSNDA, if any, for eachLeaseexisting as of the date of thisAgreementor the relatedTransfer Date, as applicable;
(x) anypropertyzoning reports;
(xi) the relatedGround Lease, if any, and anyamendment, modification, waiveragreementor instrument related thereto, together with the applicableGround Lessorestoppel;
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(xii) an appraisal of theProperty,includinginformation on rental rates andleaseterms for comparable space, recent sales of comparableproperties, and recent sales of unimproved land with similar zoning;
(xiii) environmental reports, if applicable;
(xiv) a copy of the environmental insurance policy, if applicable, together with the original assignment thereof to theIndenture Trustee;
(xv) asurveyof theProperty;
(xvi) propertycondition report, if applicable;
(xvii) anypurchase optionagreements, to the extent not included in theLease;
(xviii) with respect to anyGround Lease, an assignment ofGround Lease, if any, and a non-disturbanceagreementfrom theGround Lessorand the fee mortgagee, if any;
(xix) all original letters of credit, if any;
(xx) with respect to aHybrid Lease, the documents set forth in the definition of “Loan File” containedherein; and
(xxi) a checklist of the foregoing documents;
provided, that (x) no assignment of any of the foregoing documents in favor of the Indenture Trustee shall be considered to be effective until the applicable Series Closing Date, notwithstanding any earlier date on any such assignment, (y) whenever the term “Lease File” is used to refer to documents actually received by the Custodian pursuant to this Agreement or the Custody Agreement, such term shall not be deemed to include such documents required to be included therein unless they are actually so received and (z) whenever the term “Lease File” is used in connection with any receipt or certification by the Custodian for documents described in clauses (ii), (vi), (vii), (ix), (x), (xi), (xiii), (xiv), (xvii), (xviii) and (xix) of this definition, such term shall be deemed to include such documents and any amendment, modification, waiver, agreement or instrument related thereto, only to the extent that a Responsible Officer of the Custodian has actual knowledge of their existence.
“Lease Guarantor”: Any guarantor under a Lease Guaranty.
“Lease Guaranty”: With respect to any Lease, the guaranty related to such Lease executed by an Affiliate or parent of the Tenant in favor of the lessor.
“Lease Transfer Property”: As defined in Section 7.03.
“Liquidated Lease”: A Defaulted Asset that is a Lease with respect to which the related Property has been either re-leased or sold, or any Lease related to a Property purchased from the applicable Issuer or disposed of by such Issuer pursuant to an exchange, whether or not terminated because of a default by the Tenant.
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“Liquidation Fee”: A liquidation fee payable to the Special Servicer with respect to (a) each Mortgage Loan, Lease or Property repurchased by an Issuer or the Support Provider due to a Collateral Defect if purchased after the applicable cure period, (b) any Specially Managed Unit as to which the Special Servicer obtains a full, partial or discounted payoff for some or all of the Allocated Loan Amount of the Property from the related Tenant or Mortgage Loan from the related Borrower, or (c) any Specially Managed Unit or REO Property as to which the Special Servicer recovered any Liquidation Proceeds;provided, that no Liquidation Fee will be payable from any Liquidation Proceeds collected in connection with the purchase of any Specially Managed Unit or REO Property by the Property Manager or the Special Servicer.
“Liquidation Proceeds”: All net proceeds realized by the applicable Issuer, the Property Manager or the Special Servicer in respect of the purchase or sale of a Mortgage Loan or Property.
“Loan Documents”: With respect to each of the Mortgage Loans, the related loan agreement, if any, and Mortgage Note, and any related Mortgage, Ground Lease or Land and Building Lease, as applicable, Loan Guaranty or other agreement or instrument, to the extent made for the benefit of the related lender or holder of the Mortgage Note.
“Loan File”: With respect to each Mortgage Loan and the loan component of each Hybrid Lease, the following documentation:
(i) the originalMortgage Noteendorsed, without recourse, to the order of theIndenture Trustee, theCollateral Agentor in blank and bearing all intervening endorsements;
(ii) the original of theMortgageand, if applicable, the originals of any intervening recorded assignments thereof showing a complete chain of assignment from theOriginatorof theMortgage Loanto the most recent assignee of record thereof, if any, in each case with evidence of recording indicated thereof or, if any such originalMortgageor assignment has not been returned from the applicable public recording office, a copy thereof as a true and complete copy of the original thereof submitted for recording (which delivery shall be deemed to be a certification by suchOriginatorand the relatedIssuerthat such copy is a true and complete copy of the original submitted for recording);
(iii) originals or copies of any other documents related to theMortgage Loan(other than theMortgage NoteandMortgagedescribed in clauses(i)and(ii)above) and copies of any relatedUCC Financing Statementsfiled under theUCCas in effect in any jurisdiction, if any, together with originals or copies of any intervening assignments of suchLoan DocumentsandUCC Financing Statements, with evidence of filing indicated on each suchUCC Financing Statementand assignment thereof;
(iv) original letters of credit, if any;
(v) an original assignment of the relatedMortgage, in favor of theCollateral Agentand in recordable form, to the extent applicable;
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(vi) an original omnibus assignment of the documents related to theMortgage Loan(other than theMortgagedescribed in clause(v)above) in favor of theIndenture Trusteeor theCollateral Agent, on behalf of theIndenture Trustee, (or in blank), together with original assignments of any relatedUCC Financing Statementsin favor of theIndenture Trusteeor theCollateral Agent, on behalf of theIndenture Trustee, and in a form suitable for filing;
(vii) originals or copies of all assumption, modification and substitution agreements in those instances where the terms of any relatedloandocument have been modified or theMortgage Loanhas been assumed, together with any evidence of recording thereon or that such document has been submitted for recording, when appropriate;
(viii) originals or copies of allGround Leases, if any, the relatedGround Leaseestoppels andamendmentsthereof;
(ix) the original or a copy of the lender’s title insurance policy, together with all endorsements or riders (or copies thereof) that were issued with or subsequent to the issuance of such policy, insuring the priority of theMortgageas a first lien on the relatedPropertyor, with respect to eachMortgage Loanas to which a title insurance policy has not yet been issued, a policy meeting the foregoing description as evidenced by a commitment for title insurance “marked up” together with a closing instruction letter setting forth such requirements of the lender’s title insurance policy (or by “pro-forma” otherwise agreed to by thetitle company) as of the closing date of theMortgage Loan;
(x) a copy of anytenantorborrowerestoppel certificate, if available;
(xi) a copy of the appraisal (whether in hard copy, electronic copy or CD-ROM format) containing the appraisal information for the relatedProperty;
(xii) copies of environmental reports, if applicable;
(xiii) a copy of any environmental insurance policy, if applicable, together with the original assignment thereof to theIndenture Trustee;
(xiv) evidence of insurance showing the applicableIssueror itsAffiliateas the insured or an additional insured party under certain casualty insurance policies, if any;
(xv) the executed original of anyLoan Guarantyand anyamendment, modification, waiveragreementor instrument related thereto to the extent in the possession of the relatedIssueror a copy thereof certified to be true, correct and complete by suchIssuer;
(xvi) a checklist of the foregoing documents;
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provided, that (x) no assignment of any of the foregoing documents in favor of the Indenture Trustee shall be considered to be effective until the applicable Series Closing Date, notwithstanding any earlier date on any such assignment, (y) whenever the term “Loan File” is used to refer to documents actually received by the Custodian pursuant to this Agreement or the Custody Agreement, such term shall not be deemed to include such documents required to be included therein unless they are actually so received and (z) whenever the term “Loan File” is used in connection with any receipt or certification by the Indenture Trustee for documents described in clauses (iii), (iv), (vii), (viii), (ix) (only as it relates to endorsements or riders with respect thereto), (x), (xii), (xiii), (xiv) and (xv) of this definition, such term shall be deemed to include such documents and any amendment, modification, waiver, agreement or instrument related thereto, only to the extent that a Responsible Officer of the Custodian has actual knowledge of their existence.
“Loan Guarantor”: Any guarantor under a Loan Guaranty.
“Loan Guaranty”: With respect to any Mortgage Loan, the guaranty related to such Mortgage Loan executed by an Affiliate or parent of the Borrower in favor of an Issuer.
“Lockbox Transfer Account”: The account or accounts created and maintained pursuant to Section 3.02(c).
“Lockbox Transfer Account Bank”: As defined in Section 3.02(c).
“MAI”: A designation signifying that the designee is a member of the Appraisal Institute.
“Master Exchange Agreement”: A master exchange agreement or exchange agreement, entered into by STORE Capital, the Issuers, the Qualified Intermediary and/or the owner of the Qualified Intermediary, as amended, restated, supplemented or otherwise modified from time to time, substantially in the form ofExhibit J-1 orExhibit J-2 hereto.
“Master Lease FCCR”: The aggregate FCCR for all Properties under a master lease, which includes the sum of all cash flows for all of the Properties under such master lease. Only one Master Lease FCCR is reported for each master lease that is included in the Collateral Pool.
“Modified Collateral Detail and Realized Loss Report”: As defined in Section 4.01(c).
“Monthly DSCR”: With respect to any Determination Date, the quotient, expressed as a ratio, of (i) the sum of the Monthly Lease Payments, Monthly Loan Payments and any income earned from the investment of funds on deposit in the Collection Account and the Release Account in Permitted Investments during the related Collection Period, and (ii) the Total Debt Service for the related Payment Date.
“Monthly Lease Payment”: With respect to any Lease, the fixed or “base” rent monthly payment that is actually payable by the related Tenant from time to time under the terms of such Lease (excluding any Percentage Rent), after giving effect to any provision of such Lease providing for periodic increases in such fixed or “base” rent by fixed percentages or dollar amounts or by percentages based on increases in the Consumer Price Index.
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“Monthly Loan Payment”: With respect to any Mortgage Loan, the scheduled monthly payment of principal and interest on such Mortgage Loan that is or would be, as the case may be, payable by the related Borrower on each Due Date under the terms of the related Mortgage Note as in effect on the applicable Series Closing Date or, if otherwise applicable, such date such Mortgage Loan was first included in the Collateral Pool, without regard to any subsequent change in or modification of such terms in connection with a bankruptcy or similar proceeding involving the related Borrower or a modification, waiver or amendment of such Mortgage Loan granted or agreed to by the Special Servicer pursuant to this Agreement, and assuming that each prior Monthly Loan Payment has been made in a timely manner.
“Mortgage Loan”: Each fixed- and adjustable-rate, monthly pay, first lien, commercial mortgage loan, as listed on the Mortgage Loan Schedule and from time to time included in the Collateral Pool.
“Mortgage Loan Schedule”: The list of Mortgage Loans identified on an exhibit or schedule to each applicable Series Supplement in connection with the issuance of a related Series of Notes. Such list shall set forth the following information with respect to each Mortgage Loan:
(i) the identification number for the relatedProperty;
(ii) the street address (includingcity, state and zip code) of the relatedProperty;
(iii) the relatedIssuer loannumber and name ofBorrower;
(iv) theAppraised Valueof the relatedProperty;
(v) theMortgage Loan’s maturity date, if applicable;
(vi) the concept of the relatedProperty; and
(vii) theAllocated Loan Amount.
“Mortgage Note”: The original executed note evidencing the indebtedness of a Borrower under a Mortgage Loan, together with any rider, addendum or amendment thereto, or any renewal, substitution or replacement of such note.
“Net Default Interest”: With respect to any (i) Lease, any Default Interest collected thereon, net of any Advance Interest accrued on Advances made in respect of such Lease and reimbursable from such Default Interest in accordance with Section 2.11 of the Indenture and (ii) Mortgage Loan, any Default Interest collected thereon, net of any Advance Interest accrued on Advances made in respect of such Mortgage Loan and reimbursable from such Default Interest in accordance with Section 2.11 of the Indenture.
“Net Investment Earnings”: The amount by which the aggregate of all interest and other income realized during a Collection Period on funds held in the Collection Account, Release Account and any other accounts established under the Indenture from time to time, if any, exceeds the aggregate of all losses, if any, incurred during such Collection Period in connection with the investment of such funds in accordance with Section 3.05.
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“Net Worth”: With respect to STORE Capital, the excess of total assets of STORE Capital over total liabilities of STORE Capital, adding back accumulated depreciation but excluding the impact of “other comprehensive income”, all as determined in accordance with GAAP.
“Nonrecoverable Advance”: Any portion of an Advance previously made or proposed to be made which, in the case of an Advance previously made, has not been previously reimbursed to the Property Manager or the Indenture Trustee, as applicable, and which the Property Manager, in accordance with the terms hereof, or the Indenture Trustee, in its sole discretion exercised in good faith, as applicable, determines, taking into account amounts that may be collected or realized on such Mortgage Loans, Properties or Leases prior to final liquidation and Liquidation Proceeds, will not, or, in the case of a proposed Advance, would not, be ultimately recoverable together with interest thereon at the Reimbursement Rate from amounts to be deposited in the Collection Account under the terms of this Agreement with respect to such Mortgage Loans, Properties or Leases (including, without limitation, payments by the Tenants and Borrowers and collections under the related Leases and Mortgage Loans, Default Interest and late payment fees, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, and proceeds from the operation and servicing of such Properties, Leases and Mortgage Loans), as evidenced by an Officer’s Certificate pursuant to Section 3.03(f). In making any determination as to nonrecoverability pursuant to the provisions of the Transaction Documents following the occurrence and continuance of an event of default under the Indenture, the Property Manager (including the Back-Up Manager, as successor Property Manager, and the Indenture Trustee, as applicable) may consider the limitations on its enforcement remedies.
“Officer’s Certificate”: A certificate signed by a Servicing Officer of the Property Manager or the Special Servicer or a Responsible Officer of the Indenture Trustee or the applicable Issuer Member on behalf of an Issuer, as the case may be, and with respect to any other Person, a certificate signed by the Chairman of the Board, the President, a Vice President or Assistant Vice President, the Treasurer, the Secretary, or one of the Assistant Treasurers or Assistant Secretaries of such Person.
“Opinion of Counsel”: A written opinion of counsel (which shall be rendered by counsel that is Independent of the Issuers, the Issuer Members, the Indenture Trustee, the Property Manager and the Special Servicer) in form and substance reasonably acceptable to and delivered to the addressees thereof.
“Owned Property”: Each parcel of real property listed on the Owned Property Schedule and from time to time included in the Collateral Pool. As used herein and in the other Transaction Documents, the term “Owned Property” when used with respect to a Hybrid Lease, includes the commercial real estate property subject to the ground lease and any sublease related to such Hybrid Lease but, other than with respect to the definition of Appraised Value, excludes any Improvements located on such property.
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“Owned Property Schedule”: The list of Properties and related Leases identified on an exhibit or schedule to each applicable Series Supplement in connection with the issuance of a related Series of Notes. Such list shall set forth the following information with respect to each Lease:
(i) the identification number for theProperty;
(ii) the relatedIssuer leasenumber and name of the relatedTenant;
(iii) theLease Expiration Datefor suchLease;
(iv) the street address (includingcity, state and zip code) of suchProperty;
(v) theAppraised Valueof suchProperty;
(vi) the concept operated on suchProperty; and
(vii) theAllocated Loan Amount.
“P&I Advance”: Any advance of principal and/or interest made by the Property Manager or the Indenture Trustee, as applicable, pursuant to Section 3.03 of this Agreement. Each reference to reimbursement or payment of a P&I Advance shall be deemed to include, whether or not specifically referred to, payments or reimbursement of interest thereon at the Reimbursement Rate through the date of payments or reimbursement.
“Payoff Amount”: With respect to any Released Loan or Released Property, an amount equal to the Collateral Value of such Released Loan or Released Property, plus any unpaid Monthly Loan Payments or Monthly Lease Payments, as applicable, and any unreimbursed Advances, Emergency Property Expenses, Liquidation Fees, Workout Fees, Special Servicing Fees, Issuer Expenses, Back-Up Fees, Extraordinary Expenses (and any fees and expenses incurred in connection with such release) (in each case, plus interest thereon as applicable), in each case related to such Released Loan or Released Property or the related Lease.
“Percentage Rent”: With respect to any Lease, the rent thereunder, if any, calculated as a percentage of the total sales generated by the related Tenant at the related Property in excess of (or in lieu of, as applicable) the Monthly Lease Payments as provided in the applicable Lease.
“Permitted Leases”: Those Leases referenced on the Owned Property Schedule and any other Leases entered into in accordance with the terms and conditions of the Indenture and this Agreement.
“Permitted Materials”: As defined in Section 3.23(a).
“Post-Closing Properties Adjustment Amount”: The product of (A) the sum of the amounts described in clauses (a) (i), (ii), (iii), (iv) and (v) of the definition of Total Debt Service and (B) a fraction, the numerator of which is the balance of the Post-Closing Acquisition Reserve Account and the denominator of which is the Aggregate Series Principal Balance.
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“Primary Servicing Office”: (i) With respect to the Property Manager or the Special Servicer, the office of the Property Manager or the Special Servicer, as the context may require, that is primarily responsible for such party’s servicing obligations hereunder and (ii) with respect to the Back-Up Manager, the office of the Back-Up Manager, as the context may require, that is primarily responsible for such party’s servicing obligations hereunder.
“Prime Rate”: The “prime rate” published in the “Money Rates” section ofThe Wall Street Journal, as such “prime rate” may change from time to time. IfThe Wall Street Journal ceases to publish the “prime rate,” then the Indenture Trustee shall select an equivalent publication that publishes such “prime rate”; and if such “prime rate” is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then the Indenture Trustee shall select a comparable interest rate index. In either case, such selection shall be made by the Indenture Trustee in its sole discretion and the Indenture Trustee shall notify the Property Manager and the Special Servicer in writing of its selection.
“Property”: An Owned Property and/or an Underlying Mortgaged Property, as the context requires.
“Property Insurance Policy”: With respect to any Property, any hazard insurance policy, flood insurance policy, or other insurance policy that is maintained from time to time in respect of such Property (including, without limitation, any blanket insurance policy maintained by or on behalf of the applicable Issuer).
“Property Management Fee”: With respect to each Mortgage Loan and each Property owned by an Issuer, the monthly fee payable to the Property Manager pursuant to Section 3.09(a) in amount equal to the product of: (i) the Property Management Fee Rate and (ii) the aggregate Allocated Loan Amount (as of the related Determination Date) of all Mortgage Loans and Properties in the Collateral Pool that did not relate to Specially Managed Units during the related Collection Period.
“Property Management Fee Rate”: With respect to each Lease and Mortgage Loan, a monthly rate equal to the product of (i) one-twelfth and (ii) 0.25%.
“Property Manager”: STORE Capital, in its capacity as property manager under this Agreement, or any successor property manager appointed as herein provided.
“Property Manager Additional Servicing Compensation”: The additional servicing compensation payable to the Property Manager pursuant to Section 3.09(b).
“Property Protection Advances”: With respect to the Leases, the Mortgage Loans and the Properties:
(i) All customary, reasonable and necessary out-of-pocket costs and expenses incurred by theProperty Manager(or, if applicable, theBack-Up Manager), in connection with servicing theLeases, thePropertiesand theMortgage Loans, in accordance with theServicing Standardand thisAgreement, for the purpose of paying real estate taxes, premiums onProperty Insurance Policies(not already paid pursuant to Section 2.11 of theIndenture, as confirmed by the applicableIssuer) and other amounts necessary to preserve or maintain the security interest and lien of theIndenture Trusteein, and value of, each relatedProperty(includingany costs and expenses necessary to re-leasesuchProperty),LeaseorMortgage Loan(includingcosts and expenses related to collection efforts).
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(ii) All customary, reasonable and necessary out-of-pocket costs and expenses incurred by theProperty Manager, theBack-Up ManagerorSpecial Servicerin connection with the servicing of aMortgage Loanafter a default, delinquency or other unanticipated event, or in connection with the administration of anyREO Property,including, but not limited to, the cost of (a) the preservation, insurance, restoration, protection and management of anyCollateral,includingthe cost of any “force placed” insurance policy purchased by theProperty Managerto the extent such cost is allocable to a particular item ofCollateralthat theProperty Manageris required to cause to be insured pursuant to Section3.06, (b) obtaining anyLiquidation Proceeds(insofar as suchLiquidation Proceedsare of the nature described in the definition thereof) orInsurance Proceedsin respect of anyCollateralorREO Property, (c) any enforcement of judicial proceedings with respect to anyCollateral,includingforeclosures, and (d) the operation, management, maintenance and liquidation of anyREO Property. Notwithstanding anything to the contrary, “Property Protection Advances” shall notincludeallocable overhead of theProperty Manageror theSpecial Servicer, such as costs for office space, office equipment, supplies and related expenses, employee salaries and related expenses and similar internal costs and expenses.
“Purchase Option”: An option by a Tenant or other Person that is not an Affiliate of the applicable Issuer to purchase a Property pursuant to the related Lease.
“Qualified Deleveraging Event”: Except as otherwise defined in a related Series Supplement with respect to a particular Series of Notes, (i) one or more firm commitment underwritten public offerings of the equity interests of STORE Capital or any direct or indirect parent entity of STORE Capital pursuant to a registration statement under the Securities Act, which result in aggregate cash proceeds to STORE Capital or any direct or indirect parent entity of STORE Capital of at least $75,000,000 (net of underwriting discounts and commissions), (ii) an acquisition of greater than fifty percent (50%) of the equity interests of STORE Capital or any direct or indirect parent of STORE Capital by an entity that has shares that are traded on a national exchange, or (iii) the firm commitment purchase by one or more third parties unaffiliated with the Issuers of at least $100,000,000 of unsecured corporate debt of STORE Capital or any of its subsidiaries with an investment grade rating published by Moody’s, S&P or another nationally recognized statistical rating organization.
“Qualified Insurer”: An insurance company or security or bonding company qualified to write the related Property Insurance Policy in the relevant jurisdiction.
“Qualified Intermediary”: The intermediary specified in a Master Exchange Agreement.
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“Qualified Release Amount”: A portion of the Collateral Pool that may be released in connection with an Early Refinancing Prepayment, applying a Release Price for each asset to be released equal to the greater of Fair Market Value and 125% of the Allocated Loan Amount of the Owned Properties, Hybrid Leases or Loans being released, that in the aggregate is no greater than the dollar amount of the Notes being prepaid in connection with such Early Refinancing Prepayment. For example, if $1,000,000 of the Series 2019-1 Notes are prepaid in connection with an Early Refinancing Prepayment, the Issuers will be permitted to release one or more Owned Properties, Hybrid Leases and/or Loans that have an aggregate Release Price equal to or less than $1,000,000. If one Owned Property has a Fair Market Value of $500,000 and an Allocated Loan Amount of $350,000, releasing such Owned Property would use $500,000 (determined by selecting the greater of (i) Fair Market Value (equal to $500,000) and (ii) one hundred twenty-five percent (125%) of the Allocated Loan Amount (equal to $437,500)) of the permitted $1,000,000 Qualified Release Amount. If a second property has a Fair Market Value of $400,000 and an Allocated Loan Amount of $400,000, releasing such Owned Property would use the remaining $500,000 (determined by selecting the greater of (i) Fair Market Value (equal to $400,000) and (ii) one hundred twenty-five percent (125%) of Allocated Loan Amount (equal to $500,000)) of the permitted $1,000,000 Qualified Release Amount.
“Qualified Substitute Hybrid Lease”: A Hybrid Lease (A) acquired by an Issuer in substitution for any Exchanged Hybrid Lease that, on the date of such substitution, (i) relates to a Property or Properties that have aggregate Collateral Values that, when combined with the Collateral Values of all other Properties relating to Qualified Substitute Properties, Qualified Substitute Hybrid Leases and Qualified Substitute Loans to be acquired by the Issuers on such date of substitution, is at least equal to the sum of (1) the Fair Market Value of all Exchanged Properties and (2) the Collateral Value of all Exchanged Loans and Exchanged Hybrid Leases on the date of substitution, (ii) complies, in all material respects, with all of the applicable representations and warranties made under the Indenture (with each date therein referring to the date of substitution), (iii) has, together with all other Qualified Substitute Properties, Qualified Substitute Hybrid Leases and Qualified Substitute Loans to be acquired by the Issuers on such date, the same or greater aggregate Monthly Lease Payments and Monthly Loan Payments as the Exchanged Properties, Exchanged Hybrid Leases and Exchanged Loans, (iv) has a remaining term that, when combined with all other Qualified Substitute Properties, Qualified Substitute Hybrid Leases and Qualified Substitute Loans to be acquired on such date, has a weighted average remaining term that equals or exceeds the weighted average remaining term of the Exchanged Properties, Exchanged Hybrid Leases and Exchanged Loans for such date, (v) if applicable, has a Third Party Option Price that is not less than the sum of what the Allocated Loan Amounts of each Property relating to such Qualified Substitute Hybrid Lease would be after giving effect to the substitution of such Hybrid Lease, (vi) when combined with all other Qualified Substitute Properties, Qualified Substitute Hybrid Leases and Qualified Substitute Loans since the most recent Issuance Date, does not cause the Weighted Average Unit FCCR of such Qualified Substitute Properties, Qualified Substitute Hybrid Leases and Qualified Substitute Loans to be less than the Weighted Average Unit FCCR (measured as of the date of each respective substitution) of all Exchanged Properties, Exchanged Hybrid Leases and Exchanged Loans since the most recent Issuance Date, (vii) is a “triple-net” lease, and (viii) has an appraisal that meets the requirements set forth in the definition of Appraised Value and was obtained no more than twelve (12) months prior to such substitution or (B) acquired by an Issuer with proceeds deposited in the Release Account that, on the date of such acquisition, (i) complies, in all material respects, with all of the applicable representations and warranties under the Indenture (with each date therein referring to the date of acquisition), (ii) has a remaining term that equals or exceeds the weighted average remaining term of the Released Properties and Released Loans, (iii) if applicable, has a Third Party Option Price that is not less than the sum of what the Allocated Loan Amounts of each Property relating to such Qualified Substitute Hybrid Lease would be after giving effect to the substitution of such Hybrid Lease, (iv) is leased to the Tenant or Tenants who leased the related Released Property or to a different Tenant or Tenants whose Unit FCCR is greater than or equal to the then-current Unit FCCR, (v) is a “triple-net” lease and (vi) has an appraisal meeting the requirements set forth in the definition of Appraised Value that was obtained no more than twelve (12) months prior to such substitution.
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“Qualified Substitute Loan”: Any commercial real estate loan, acquired by an Issuer in substitution for an Exchanged Loan or with the proceeds (or a portion thereof) from the sale of a Released Loan and which, as of the date of the acquisition thereof (i) is secured by a Qualified Underlying Property, (ii) has a Collateral Value not less than the Collateral Value of the Released Loan or Exchanged Loan, (iii) has an Interest Rate not less than such Released Loan or Exchanged Loan, (iv) complies with all of the representations and warranties originally made with respect to such Released Loan or Exchanged Loan under the Indenture (with each date therein referring to the date of substitution), (v) pays interest and, if applicable, principal on a monthly basis, (vi) has a maturity date that is not earlier than the related Released Loan or Exchanged Loan, and (vii) if such Released Loan or Exchanged Loan is a balloon Loan, has a balloon payment that is not more than 5% larger than such Released Loan’s or Exchanged Loan’s balloon payment.
“Qualified Substitute Property”: A Property not relating to a Hybrid Lease and acquired by an Issuer in substitution for any Exchanged Asset or with the Release Price (or any portion of the Release Price) from a Released Property that, in each case, on the date such Qualified Substitute Property is added to the Collateral Pool, (i)(A) in connection with any Exchanged Asset, has a Collateral Value that, when combined with the Collateral Value of all other Qualified Substitute Properties, Qualified Substitute Loans and Qualified Substitute Hybrid Leases acquired by the Issuers since the most recent Issuance Date, is at least equal to the sum of (1) the Fair Market Value of all Exchanged Properties and (2) the Collateral Value of all Exchanged Loans and Exchanged Hybrid Lease exchanged since the most recent Issuance Date (each such Exchanged Property, Exchanged Loan and Exchanged Hybrid Lease as measured on the date of their respective removals) and (B) in connection with any Property acquired with the Release Price (or a portion thereof) from a Released Property, has a Collateral Value equal to the Release Price (or portion thereof) applied to purchase such Qualified Substitute Property, (ii) complies, in all material respects, with all of the representations and warranties made with respect to Properties under the Indenture (with each date therein referring to the date of substitution), (iii) has, together with all other Qualified Substitute Properties, Qualified Substitute Loans and Qualified Substitute Hybrid Leases acquired by the Issuers since the most recent Issuance Date, the same or greater aggregate Monthly Lease Payments and Monthly Loan Payments as the Exchanged Assets and Released Assets since the most recent Issuance Date (each measured on the date of their respective removals), (iv) is leased pursuant to a Lease, that when combined with the Leases of all other Qualified Substitute Properties and Qualified Substitute Hybrid Leases and the Mortgage Loans of all other Qualified Substitute Loans acquired since the most recent Issuance Date, has a weighted average remaining term that equals or exceeds the weighted average remaining term of the Leases associated with the Exchanged Properties, Released Properties, Exchanged Hybrid Leases and Released Hybrid Leases and the Mortgage Loans associated with the Exchanged Loans and Released Loans since the most recent Issuance Date (each measured on the date of their respective removals), (v) if the Tenant thereof or any third party has an option to purchase such Qualified Substitute Property, the contractual amount of such Third Party Option Price is not less than what the Allocated Loan Amount of such Qualified Substitute Property would be after giving effect to the substitution of such Property, (vi) when combined with all other Qualified Substitute Properties, Qualified Substitute Hybrid Leases and Qualified Substitute Loans since the most recent Issuance Date, does not cause the weighted average Unit FCCR of such Qualified Substitute Properties, Qualified Substitute Hybrid Leases and Qualified Substitute Loans to be less than the weighted average Unit FCCR (measured as of the date of each respective substitution) of all Exchanged Assets and Released Assets since the most recent Issuance Date; provided, however, with respect to no more than fifteen percent (15%) of the Aggregate Appraised Value of all Owned Properties, the requirement set forth in this clause (vi) shall not apply so long as such Qualified Substitute Properties (1) have a weighted average Unit FCCR not less than 2.0x and (2) the Property Manager, in accordance with the Servicing Standard, has determined that such substitution is in the best interest of the Issuers and the Noteholders, (vii) is leased pursuant to a “triple-net” lease, and (viii) has an appraisal that meets the requirements set forth in the definition of Appraised Value and was obtained no more than (12) months prior to such substitution.
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“Qualified Underlying Property”: Any commercial real estate property securing a Qualified Substitute Loan, which, as of the date of the acquisition of such related Qualified Substitute Loan, (i) has a Fair Market Value or, when combined with the Fair Market Value of all Qualified Substitute Properties and all other Qualified Underlying Properties to be acquired on the date of such acquisition as substitution for the related Released Loan or Exchanged Loan, has a Fair Market Value in the aggregate, that is equal to or greater than the Fair Market Value of the Property that secures such Released Loan or Exchanged Loan, and (ii) complies with all of the representations and warranties originally made with respect to the Property securing the related Released Loan or Exchanged Loan under the Indenture (with each date therein referring to the date of substitution).
“Reimbursement Rate”: The rate per annum applicable to the accrual of Advance Interest, which rate per annum is equal to the Prime Rate plus 2.0%.
“Release Account”: The segregated account established and maintained by the Indenture Trustee on behalf of the Noteholders and the Issuers for the deposit of cash proceeds from the sale of any Property or Mortgage Loan.
“Release Price”: With respect to any Released Property or Released Loan, an amount equal to (i) the Third Party Option Price, if the release occurs in connection with any Third Party Purchase Option, (ii) with respect to any Delinquent Asset or Defaulted Asset purchased by the Special Servicer or the Property Manager or any assignee thereof or any Released Property or Released Loan sold to a STORE SPE, (x) prior to the date on which the Series 2013-1 Notes, the Series 2013-2 Notes, the Series 2013-3 Notes, the Series 2014-1 Notes, the Series 2015-1 Notes and the Series 2016-1 Notes have been repaid in full, the greater of (A) the Fair Market Value and (B) one hundred twenty-five percent (125%) of the Allocated Loan Amount and (y) on and after the date on which the Series 2013-1 Notes, the Series 2013-2 Notes, the Series 2013-3 Notes, the Series 2014-1 Notes, the Series 2015-1 Notes and the Series 2016-1 Notes have been repaid in full, the greater of (A) the Fair Market Value and (B) one hundred fifteen percent (115%) of the Allocated Loan Amount, (iii) the Payoff Amount with respect to any Released Property or Released Loan released due to a Collateral Defect, (iv) the Fair Market Value for any Released Property sold to a third party, STORE Capital or a STORE SPE or (v) the greater of Fair Market Value and one hundred twenty-five percent (125%) of the Allocated Loan Amount of the Owned Properties, Hybrid Leases or Mortgage Loans being released with respect to a Qualified Deleveraging Event.
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“Released Asset”: Any Released Loan or Released Property, as applicable.
“Released Loan”: As defined in Section 7.04.
“Released Property”: As defined in Section 7.04.
“Relinquished Property”: As defined in the applicable Master Exchange Agreement.
“Relinquished Property Proceeds”: Funds derived from or otherwise attributable to the transfer of Relinquished Property pursuant to a Master Exchange Agreement.
“Remedial Work”: As defined in Section 3.23(c).
“Remittance Date”: The Business Day preceding each Payment Date.
“Removed Loan”: A Released Loan or Exchanged Loan that has either been released or substituted that is removed from the Collateral Pool pursuant to Section 2.03 and Article VII hereof.
“Removed Property”: A Released Property or Exchanged Property that has either been released or substituted and that is removed from the Collateral Pool pursuant to Section 2.03 and Article VII hereof.
“REO Property”: A Property acquired by or on behalf of an Issuer as “real estate owned” whether through foreclosure, deed in lieu of foreclosure or otherwise.
“REO Revenues”: All income, rents, profits and proceeds derived from the ownership, operation or leasing of any REO Property.
“Replacement Property”: As defined in the applicable Master Exchange Agreement.
“Request for Release”: A request signed by a Servicing Officer of the applicable Issuer or the Property Manager in the form of Exhibit B-l attached hereto or of such Issuer or the Special Servicer in the form of Exhibit B-2 attached hereto.
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“Required Conditions”: With respect to any proposed substitution, release, exchange or lease transfer of a Property or Mortgage Loan, the Required Conditions will be satisfied if:
(i) the applicableIssuershall submit to theIndenture Trustee, not less than five (5) days prior to the date of such release, a release ofLienof theMortgage(and relatedTransaction Documents) for suchPropertyorMortgage Loanfor execution by theIndenture Trustee. Such release shall be in a form appropriate in each jurisdiction in which thePropertyorMortgage Loanis located. In addition, suchIssuershall provide all other documentation that is reasonably required to be delivered by any party hereto in connection with such substitution, release,exchangeorleasetransfer, together with anOfficer’s Certificatecertifying that such documentation (A) is in compliance with all Legal Requirements, and (B) will effect such release in accordance with the terms of thisAgreement;
(ii) solely with respect to a proposed substitution, release,exchangeorleasetransfer of aProperty, if thePropertysought to be substituted, released, exchanged or have itsleasetransferred is located adjacent to anotherProperty,after giving effect to suchrelease, (A) each such remainingPropertyshall (1) have adequate rights of access to public ways, (2) be a “legal lot” under all Legal Requirements and be separately assessed for tax purposes, (3) comply with all Legal Requirements,includingall applicable zoning ordinances and subdivision ordinances, (4) receive all public utilities directly from an adjoining public right-of-way, through another remainingPropertyor through valid easements insured under theTitle Insurance Policies, and (5) not be subject to any material encroachment byImprovementson thePropertyso released, and (B) no materialImprovementson anyPropertyshall encroach onto thePropertyso released. SuchIssuershall have executed and delivered such reciprocal easements, declarations of covenants, conditions and restrictions and such other agreements as may be required by the title insurance company that issued theTitle Insurance Policiesor by anyGovernmental Authoritiesor as may be reasonably required by theIndenture Trustee; and
(iii) if thePropertysought to be substituted, released, exchanged or have itsleasetransferred is subject to aLeaseorMortgage Loanthat also covers any otherProperty, suchLeaseorMortgage Loanshall be severed and amended so that,after giving effect to suchrelease, noPropertyshall be subject to aLeaseorMortgage Loanthat also affects anyPropertythat is not subject to aMortgage.
“Required Transfer Instruction Date”: The date on which an Issuer or STORE Capital is required to direct the transfer of Relinquished Property Proceeds from the Exchange Account to the Release Account pursuant to the Escrow Agreement.
“Risk-Based Substitution”: The meaning specified in Section 7.06.
“Series Collateral Release”: A release of Released Assets in connection with a full prepayment of one or more Series of Notes following or concurrent with repayment in full of the Series 2013-1 Notes, the Series 2013-2 Notes, the Series 2013-3 Notes, the Series 2014-1 Notes, the Series 2015-1 Notes and the Series 2016-1 Notes;provided, however, the release of such Released Assets to the related Issuer (i) shall not trigger an Indenture Event of Default or Early Amortization Period (including but not limited to the Issuers’ obligations to maintain the 3-month Average DSCR), (ii) shall result in the Rating Condition being satisfied, (iii) shall not cause a Maximum Property Concentration to be exceeded (or if, prior to such release, an existing Maximum Property Concentration is already exceeded, the release of such Released Assets will reduce the Maximum Property Concentration or such Maximum Property Concentration will remain unchanged after giving effect to such release), and (iv) shall not cause the Weighted Average Unit FCCR of the properties remaining in the Collateral Pool to be less than the Weighted Average Unit FCCR of the Collateral Pool prior to the Series Collateral Release.
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“Series Collateral Release Price”: With respect to any Released Asset released at the time of a Series Collateral Release, the Release Price shall be an amount equal to the greater of (i) one hundred fifteen percent (115%) of the Allocated Loan Amount of such Released Asset and (ii) the Fair Market Value of Released Asset.
“Servicer Replacement Event”: The meaning specified in Section 6.01(a).
“Servicing Fees”: With respect to each Property and the related Lease or Mortgage Loan, the Property Management Fee, the Back-Up Fee, the Property Manager Additional Servicing Compensation, if any, the Special Servicing Fee, if any, and the Special Servicer Additional Servicing Compensation, if any.
“Servicing File”: Any documents (other than documents required to be part of the related Lease File or Loan File) in the possession of the Property Manager or the Special Servicer and relating to the origination and servicing of any Mortgage Loan or Lease or the administration of any Property.
“Servicing Officer”: Any officer or employee of the Property Manager or the Special Servicer involved in, or responsible for, the administration, management and servicing of the Properties, Leases or Mortgage Loans, whose name and specimen signature appear on a list of Servicing Officers furnished by such party to the applicable Issuer Members, the applicable Issuer and the Indenture Trustee on the related Series Closing Date, as such list may be amended from time to time.
“Servicing Standard”: To provide property management services for the Properties and to service the Mortgage Loans and the Leases (a) in the same manner in which, and with the same care, skill, prudence and diligence with which, STORE Capital, the Property Manager or the Special Servicer, as the case may be, services and administers similar leases and properties and loans, including, without limitation, the granting of Permitted Encumbrances, for their own account and the account of their Affiliates or any third-party portfolios, to the extent applicable, or (b) in a manner normally associated with the prudent management and operation of similar properties, whichever standard is highest, and in each such case, in material compliance with all applicable laws, but without regard to: (i) any known relationship that the Property Manager or Special Servicer, or an Affiliate of the Property Manager or Special Servicer, may have with any Issuer, any Tenant, any Borrower, any of their respective Affiliates or any other party to the Transaction Documents; (ii) the ownership of any Note or Issuer Interest by the Property Manager or Special Servicer or any Affiliate of the Property Manager or Special Servicer, as applicable; (iii) the Property Manager’s obligation to make Advances or to incur servicing expenses with respect to the Leases, Properties and Mortgage Loans; (iv) the Property Manager’s or Special Servicer’s right to receive compensation for its services; (v) the ownership, or servicing or management for others, by the Property Manager or Special Servicer of any other leases, commercial real properties or loans; (vi) the release, transfer or indemnification obligations of the Property Manager or Special Servicer; or (vii) the existence of any loans made to a Tenant by the Property Manager or Special Servicer or any Affiliate thereof.
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“Servicing Transfer Agreement”: As defined in Section 5.04. “Servicing Transfer Date”: As defined in Section 5.04.
“Servicing Transfer Event”: With respect to any Property, the occurrence of any of the events described in clauses (i) through (v) of the definition of “Specially Managed Unit.”
“SNDA”: A subordination, non-disturbance, and attornment agreement with respect to a Lease, which is in a form attached hereto as Exhibit E with such reasonable modifications as may be requested by the subject Tenant and are reasonably acceptable to the Indenture Trustee.
“Special Servicer”: STORE Capital, in its capacity as special servicer under this Agreement, or any successor special servicer appointed as herein provided.
“Special Servicer Additional Servicing Compensation”: The additional servicing compensation payable to the Special Servicer pursuant to Section 3.09(d).
“Special Servicer Report”: As defined in Section 4.01(b).
“Special Servicing Fee”: With respect to each Specially Managed Unit, the monthly fee payable to the Special Servicer pursuant to the first paragraph of Section 3.09(c) in amount equal to the product of (i) the Special Servicing Fee Rate and (ii) the aggregate Allocated Loan Amount (as of the related Determination Date) of all Mortgage Loans and Properties in the Collateral Pool that did not relate to Specially Managed Units during the related Collection Period.
“Special Servicing Fee Rate”: With respect to each Specially Managed Unit, a monthly rate equal to the product of (i) one-twelfth and (ii) 0.75%.
“Specially Managed Unit”: Any Property or Mortgage Loan as to which any of the following events has occurred:
(i) suchPropertyorMortgage Loanis aDelinquent Asset; or
(ii) suchPropertyorMortgage Loanis aDefaulted Asset, with respect to which the related default materially and adversely affects the interests of the applicableIssuer; or
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(iii) there shall have been commenced in a court or agency or supervisory authority having jurisdiction an involuntary action against theTenantorBorrowerunder any present or future federal or statebankruptcy, insolvency or similar lawor the appointment of a conservator or receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities, or similar proceedings or for the winding up or liquidation of its affairs, which action shall not have been dismissed for a period of 90 days, and the subjectLeaseorMortgage Loanhas not been rejected in any related proceeding; or theTenantorBorrowershall have consented 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 theTenantorBorroweror of or relating to all or substantially all of itsproperty, and the subjectLeaseorMortgage Loanhas not been rejected in any related proceeding; or theTenantorBorrowershall have admitted in writing its inability to pay its debts generally as they become due, filed a petition to take advantage of any applicable insolvency or reorganization statute, made an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations, and the subjectLeaseorMortgage Loanhas not been rejected in any related proceeding; or
(iv) theLeaseorMortgage Loanhas expired, been terminated, or rejected in any bankruptcy or related proceeding; or
(v) theProperty Managerreceives notice that (A) aTenantwill no longer makeMonthly Lease Paymentsunder suchTenant’sLeaseor (B) aBorrowerwill no longer makeMonthly Loan Paymentsunder suchBorrower’sMortgage Loan.
“STORE Capital”: STORE Capital Corporation, a Maryland corporation, and its successors and assigns.
“STORE SPE”: Any special purpose, bankruptcy remote subsidiary (direct or indirect) of STORE Capital (other than any Originator).
“Sub-Management Agreement”: The written contract between the Property Manager or the Special Servicer, on the one hand, and any Sub-Manager, on the other hand, relating to servicing and administration of Mortgage Loans, Leases and Properties, as provided in Section 3.18.
“Sub-Manager”: Any Person with which the Property Manager or the Special Servicer has entered into a Sub-Management Agreement.
“Subsidiary”: Any other corporation, association, joint stock company, business trust, limited liability company, general or limited partnership or any other business entity of which more than 50% of the total combined outstanding voting stock, share capital, membership or other interests, as the case may be, is owned either directly or indirectly, or the management of which is controlled, directly, or indirectly through one or more intermediaries, or both, by STORE Capital either directly or through Subsidiaries.
“Successor Property Manager”: As defined in Section 6.02.
“Successor Special Servicer”: As defined in Section 6.02.
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“Tenant”: With respect to each Lease, the tenant under such Lease and any successor or assign thereof.
“Terminated Lease Property”: A Property, the Lease with respect to which has expired, has been terminated or has been rejected in a bankruptcy, insolvency or similar proceeding of the Tenant or from which the Tenant has been evicted or otherwise removed.
“Termination Date”: The termination date or end date specified in a Master Exchange Agreement.
“Third Party Option Price”: With respect to any Property pursuant to which a Purchase Option is exercised, a cash price equal to the amount specified in the related Lease or other Lease Document, as applicable, as payable by a Tenant or other third party in connection with the exercise of such Purchase Option.
“Third Party Purchase Option”: The option under a Lease, whether conditional or otherwise, for the related Tenant or another third party to purchase the related Property before or at the expiration of the term of the Lease for the Third Party Option Price.
“Title Insurance Policies”: With respect to each Property, an ALTA mortgagee title insurance policy in the customary form (or, if any Property is in a state which does not permit the issuance of such ALTA policy, such form as shall be permitted in such state) issued with respect to such Property and insuring the lien of the Mortgage encumbering such Property.
“Total Debt Service”: (a) The sum of (i) the Scheduled Principal Payment and all Note Interest with respect to each Class of Series Notes, assuming for the Class B Notes there is no Class B Note Adjustment Amount, (in each case, less any scheduled principal payment due on the related Anticipated Repayment Date with respect to such Series of Notes), (ii) the Property Management Fee, (iii) the Special Servicing Fee, if any, (iv) the Back-Up Fee, and (v) the Indenture Trustee Fee, each as accrued during the Collection Period ending on such Determination Date minus (b) the Post-Closing Properties Adjustment Amount. For the purpose of calculating “Monthly DSCR,” the Note Interest component of Total Debt Service shall, for each Series, be computed on the basis of a 360-day year consisting of twelve 30-day months.
“Triple A Notes”: Any Notes that have been issued pursuant to the Indenture and have received a rating of “AAA(sf)” from the applicable Rating Agency.
“Triple A Release Date” With respect to any Triple A Notes, as defined in the related Series Supplement.
“Triple A Release Event”: If any Triple A Notes are Outstanding on their related Triple A Release Date and an Early Amortization Period is in effect the Property Manager shall use commercially reasonable efforts to sell Hybrid Leases, Loans and/or Owned Properties in an amount equal to the lesser of (i) 25% of the Aggregate Collateral Value, taking into account the sum of the Collateral Value of all Released Assets released since the Initial Closing Date (or, after each of the Series 2013-1 Notes, the Series 2013-2 Notes, the Series 2013-3 Notes, the Series 2014-1 Notes, the Series 2015-1 Notes and the Series 2016-1 Notes have been repaid in full, since the most recent Issuance Date) by paying the Release Price and (ii) the outstanding balance of all Triple A Notes.
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“UCC”: The Uniform Commercial Code as in effect in any applicable jurisdiction.
“UCC Financing Statement”: One or more financing statements filed or recorded or in a form suitable for filing and recording under the UCC.
“Underlying Mortgaged Property”: Each parcel of real property securing a Mortgage Loan, including the buildings, structures, fixtures (to the extent not property of the related Tenant), additions, enlargements, extensions, modifications, repairs, replacements or Improvements now or hereinafter erected or located on such parcel and appurtenant easements and other property rights relating thereto.
“Unit FCCR”: The individual FCCR of a Property, an individual Lease or Mortgage Loan or, in the case of Master Leases, the Master Lease FCCR and, in the case of Hybrid Leases, the Hybrid Lease FCCR.
“Unscheduled Proceeds”: Collectively, without duplication, (i) Liquidation Proceeds and any other proceeds received by the Property Manager or the Special Servicer with respect to the disposition of a Property or a Mortgage Loan that is a Defaulted Asset, (ii) Insurance Proceeds, Condemnation Proceeds or amounts received in connection with an Insured Casualty, (iii) provided that such amounts are less than the Collateral Value of the related Property or Mortgage Loan, any Third Party Option Price received as a result of a Third Party Purchase Option, (iv) Payoff Amounts received in connection with releases and sales of Leases, Mortgage Loans and Properties in relation to a Collateral Defect, (v) any proceeds derived from each un-leased Property (exclusive of related operating costs, including certain reimbursements payable to the Property Manager in connection with the operation and disposition of such un-leased Property), (vi) all amounts disbursed to the Payment Account from the DSCR Reserve Account during an Early Amortization Period, (vii) any proceeds transferred from the Exchange Account to the Release Account pursuant to the Exchange Program, (viii) any proceeds with respect to a Triple A Release Event, (ix) any Post-Closing Acquisition Unused Proceeds, and (x) all amounts transferred from the Release Account to the Collection Account during the related Collection Period.
“U.S. Credit Risk Retention Rules”: means the final rules adopted by the FDIC, the Federal Housing Finance Agency, the Office of the Comptroller of the Currency of the Department of the Treasury, the SEC, the Board of Governors of the Federal Reserve System and the U.S. Department of Housing and Urban Development implementing the credit risk retention requirements of Section 15G of the Securities Exchange Act of 1934, as amended, as added by Section 941 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
“U.S. Risk Retention Agreement”: The U.S. Credit Risk Retention Agreement executed and delivered by STORE Capital Corporation, as Support Provider, and the Issuers in favor of the Indenture Trustee, dated as of November 13, 2019.
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“Weighted Average 4-Wall FCCR”: An amount equal to the quotient of (i) the sum of the products of the 4-Wall FCCRs and the Allocated Loan Amounts of each Owned Property or Loan in the Collateral Pool, and (ii) the Aggregate Allocated Loan Amount of the Collateral Pool.
“Weighted Average Unit FCCR”: An amount equal to the quotient of (i) the sum of the products of the Unit FCCRs and the Allocated Loan Amounts of each Property or Mortgage Loan in the Collateral Pool and (ii) the Aggregate Series Principal Balance.
“Workout Fee”: A fee payable to the Special Servicer with respect to each Corrected Unit. As to each such Corrected Unit, the Workout Fee will be payable out of, and will be calculated by application of 0.50% to, each collection of rents and principal and interest payments (other than any default interest) received on the related Lease or Mortgage Loan, as applicable, so long as it remains a Corrected Unit; provided, that no Workout Fee will be payable from any Liquidation Proceeds collected in connection with (i) the purchase of any Specially Managed Unit or REO Property by the Property Manager or the Special Servicer or (ii) the repurchase of any Specially Managed Unit by the applicable Issuer or the Support Provider due to a Collateral Defect within the period provided to cure such Collateral Defect.
“Yield Maintenance Premium”: With respect to any Mortgage Loan, any premium, penalty or fee paid or payable, as the context requires, by a Borrower in connection with a principal prepayment on or other early collection of principal of a Mortgage Loan.
Section 1.02 Other DefinitionalProvisions.
(a) All terms defined in thisAgreementshall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.
(b) As usedin this Agreement and in any certificate or other documentmade or delivered pursuant hereto or thereto, accounting terms not definedin this Agreement or in any such certificate or other document, and accounting terms partly definedin this Agreement or in any such certificate or other document, to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting termsin this Agreement or in any such certificate or other documentare inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions containedin this Agreement or in any such certificate or other documentshall control.
(c) The words “hereof,” “herein,” and “hereunder” and words of similar import when used in thisAgreementshall refer to thisAgreementas a whole and not to any particular provision of thisAgreement; Section and Exhibit references contained in thisAgreementare references to Sections andExhibitsin or to thisAgreementunless otherwise specified; a reference to a subsection or other subdivision without further reference to a Section is a reference to such subsection or other subdivision as contained in the Section in which the reference appears; and the words “include” and “including” shall mean without limitation by reason of enumeration.
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(d) The definitions contained in thisAgreementare applicable to the singular as well as the plural forms of such terms and to the masculine as well as the feminine and neuter genders of such terms.
(e) Anyagreement, instrument or statute defined or referred tohereinor in any instrument or certificate delivered in connection herewith means suchagreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; references to aPersonare also to its permitted assignees.
Section 1.03 Certain Calculations in Respect of theLeasesand theMortgage Loans.
(a) All amounts collected in respect of anyLeasein the form of payments from the relatedTenants, guarantiesprovidedby relatedLease Guarantors,Unscheduled Proceedsor otherwise shall be applied to amounts due and owing under theLeasein accordance with the express provisions of suchLease, and all amounts collected in respect of anyMortgage Loanin the form of payments from the relatedBorrower, guarantiesprovidedby relatedLoan GuarantorsorUnscheduled Proceedsshall be applied to amounts due and owing under the relatedMortgage NoteandMortgage(includingfor principal and accrued and unpaid interest) in accordance with the express provisions of the relatedMortgage NoteandMortgage; in the absence of such express provisions, shall be applied for purposes of thisAgreement: (i) with respect to amounts collected in respect to anyLease, first, as a recovery of any related and unreimbursedAdvances; and second, in accordance with theServicing Standard, but subject to Section1.03(c), as a recovery of any other amounts then due and owing under suchLease,including, without limitation,Percentage RentandDefault Interest; and (ii) with respect to amounts collected in respect of anyMortgage Loan,first, as a recovery of any related and unreimbursedAdvances,second, as a recovery of accrued and unpaid interest at the relatedInterest Rateon suchMortgage Loanto but notincluding, as appropriate, the date of receipt or theDue Datein theCollection Periodof receipt,third, as a recovery of principal of suchMortgage Loanthen due and owing,includingby reason of acceleration of theMortgage Loanfollowing a default thereunder (or, if a liquidation event has occurred in respect of suchMortgage Loan, a recovery of principal to the extent of its entire remaining unpaid principal balance),fourth, as a recovery of anyYield Maintenance Premiumthen due and owing under suchMortgage Loan,fifth, in accordance with theServicing Standard, but subject to Section1.03(c), as a recovery of any other amounts then due and owing under suchMortgage Loan,including Default Interest, andsixth, as a recovery of any remaining principal of suchMortgage Loanto the extent of its entire remaining unpaid principal balance. Any proceeds derived from an unleasedProperty(exclusive of related operating costs,includingreimbursement ofAdvancesmade by theProperty Manager, theSpecial Serviceror theIndenture Trusteein connection with the operation and disposition of suchProperty) shall be applied by theProperty Managerin the same manner as if they wereMonthly Lease Paymentsdue on the previously existingLeasefor suchPropertyuntil suchLeasebecomes aLiquidated Leasepursuant to the terms of suchLeaseand the relatedLease Documents.
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(b) Collections in respect of eachREO Property(exclusive of amounts to be applied to the payment of the costs of operating, managing, maintaining and disposing of suchREO Property) shall be treated:first, as a recovery of any related and unreimbursedAdvances;second, as a recovery of accrued and unpaid interest on the relatedMortgage Loanat the relatedInterest Rateto but notincludingtheDue Datein theCollection Periodof receipt;third, as a recovery of principal of the relatedMortgage Loanto the extent of its entire unpaid principal balance; andfourth, in accordance with theServicing Standard, but subject to Section1.03(c), as a recovery of any other amounts deemed to be due and owing in respect of the relatedMortgage Loan.
(c) Insofar as amounts received in respect of anyLease,Mortgage LoanorREO Propertyand allocable to fees and charges owing in respect of suchLease,Mortgage LoanorREO PropertyconstitutingAdditional Servicing Compensationpayable to theProperty ManagerorSpecial Servicerare insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to theProperty Manager, on the one hand, and as are payable to theSpecial Servicer, on the other, pro rata in accordance with their respective entitlements.
(d) The foregoing applications of amounts received in respect of anyLease,Mortgage LoanorREO Propertyshall be determined by theProperty Managerand reflected in the appropriate monthlyDetermination Date Reportand anyModified Collateral Detail and Realized Loss Report.
(e) Notwithstanding the early termination of anyLeaseresulting from a default by the relatedTenant, suchLeasewill be treated for purposes of determiningServicing Fees,Liquidation Fees,Workout Fees and Indenture Trustee Feesas remaining in effect until suchLeasebecomes aLiquidated Lease.
(f) Insofar as amounts received in respect of anyLeaseand allocable to fees and charges owing in respect of suchLeaseconstitutingAdditional Servicing Compensationpayable to theProperty ManagerorSpecial Servicerare insufficient to cover the full amount of such fees and charges, such amounts shall be allocated between such of those fees and charges as are payable to theProperty Manager, on the one hand, and as are payable to theSpecial Servicer, on the other, pro rata in accordance with their respective entitlements.
(g) The foregoing applications of amounts received in respect of anyLeaseshall be determined by theProperty Managerand reflected in the appropriate monthlyDetermination Date Report and Modified Collateral Detail and Realized Loss Reports.
Section 1.04 Fee Calculations.
The calculation of the Servicing Fees shall be made in accordance with Section 3.11; the payment of Indenture Trustee Fees shall be made pursuant to the terms of the Indenture. All dollar amounts calculated hereunder shall be rounded to the nearest penny with one-half of one penny being rounded up.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES; RECORDINGS
AND FILINGS; BOOKS AND RECORDS; DEFECT,
BREACH, CURE, REPURCHASE AND SUBSTITUTION
Section 2.01 Representations and Warranties ofSTORE Capital, theBack-Up Managerand theIssuers.
(a) STORE Capitalrepresents and warrants to the other parties hereto, and for the benefit of theIssuers, and theIndenture Trusteefor the benefit of theNoteholdersas ofSeries Closing Date:
(i) STORE Capitalis a corporation duly organized, validly existing, and in good standing under the laws of the State ofMarylandand is in compliance with the laws of each state (within the United States of America) in which anyPropertyis located to the extent necessary to its performance under thisAgreement;
(ii) The execution and delivery of thisAgreementbySTORE Capital, and the performance and compliance with the terms of thisAgreementbySTORE Capital, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any materialagreementor other instrument to which it is a party or by which it is bound;
(iii) STORE Capitalhas the corporate power and authority to enter into and consummate all transactions to be performed by it contemplated by thisAgreement, has duly authorized the execution, delivery and performance by it of thisAgreement, and has duly executed and delivered thisAgreement;
(iv) ThisAgreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation ofSTORE Capital, enforceable againstSTORE Capitalin accordance with the termshereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, 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;
(v) STORE Capitalis not in violation of, and its execution and delivery of thisAgreementand its performance and compliance with the terms of thisAgreementwill not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability ofSTORE Capital to perform its obligations under this Agreement or the financial conditionofSTORE Capital;
(vi) No litigation is pending or, toSTORE Capital’s knowledge, threatened againstSTORE Capitalthat is reasonably likely to be determined adversely toSTORE Capitaland, if determined adversely toSTORE Capital, would prohibitSTORE Capitalfrom entering into thisAgreementor that, inSTORE Capital’sgood faith and reasonable judgment, islikely to materially and adversely affect either the ability ofSTORE Capital to perform its obligations under this Agreement or the financial conditionofSTORE Capital.
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(vii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance bySTORE Capitalof, or the compliance bySTORE Capitalwith, thisAgreementor the consummation of the transactions ofSTORE Capitalcontemplated by thisAgreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability ofSTORE Capitalto perform its obligationshereunder; and
(viii) Each officer and employee ofSTORE Capitalthat has responsibilities concerning the management, servicing and administration ofProperties,LeasesandMortgage Loansis covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section3.06.
(b) The representations and warranties ofSTORE Capitalset forth in Section2.01(a)shall survive the execution and delivery of thisAgreementand shall inure to the benefit of thePersonsto whom and for whose benefit they were made until all amounts owed to theNoteholdersunder or in connection with thisAgreement, theIndentureand theNoteshave been indefeasibly paid in full. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
(c) Any successorProperty ManagerorSpecial Servicershall be deemed to have made, as of the date of its succession, each of the representations and warranties set forth in Section2.01(a), subject to such appropriate modifications to the representation and warranty set forth in Section2.01(a)(i)to accurately reflect such successor’s jurisdiction of organization and whether it is a corporation, partnership, bank, association or other type of organization.
(d) TheBack-Up Managerrepresents and warrants to the other parties hereto, and for the benefit of theIssuers, and theIndenture Trusteeon behalf of theNoteholders, as of eachSeries Closing Date:
(i) TheBack-Up Manageris an entity duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation and is in compliance with the laws of each state (within the United States of America) in which anyPropertyis located to the extent necessary to its performance under thisAgreement;
(ii) The execution and delivery of thisAgreementby theBack-Up Manager, and the performance and compliance with the terms of thisAgreementby theBack-Up Manager, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any materialagreementor other instrument to which it is a party or by which it is bound;
(iii) TheBack-Up Managerhas the corporate power and authority to enter into and consummate all transactions to be performed by it contemplated by thisAgreement, has duly authorized the execution, delivery and performance by it of thisAgreement, and has duly executed and delivered thisAgreement;
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(iv) ThisAgreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of theBack-Up Manager, enforceable against theBack-Up Managerin accordance with the termshereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, 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;
(v) TheBack-Up Manageris not in violation of, and its execution and delivery of, thisAgreementand its performance and compliance with the terms of thisAgreementwill not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of theBack-Up Manager to perform its obligations under this Agreement or the financial conditionof theBack-Up Manager;
(vi) No litigation is pending or, to theBack-Up Manager’s knowledge, threatened (in writing received by theBack-Up Manager) against theBack-Up Manager, which if determined adversely to theBack-Up Manager, would prohibit theBack-Up Managerfrom entering into thisAgreementor that, in theBack-Up Manager’sgood faith and reasonable judgment, islikely to materially and adversely affect either the ability of theBack-Up Manager to perform its obligations under this Agreement or the financial conditionof theBack-Up Manager;
(vii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by theBack-Up Managerof, or the compliance by theBack-Up Managerwith, thisAgreementor the consummation of the transactions contemplated by theBack-Up Managerby thisAgreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of theBack-Up Managerto perform its obligationshereunder; and
(viii) TheBack-Up Manageris covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section3.06.
(e) EachIssuerhereby represents and warrants to each of the other parties hereto and for the benefit of theIndenture Trustee, on behalf of theNoteholdersas of the relatedSeries Closing Dateon or after the date on which suchIssuerbecomes a party to thisAgreement:
(i) SuchIssueris a limited liability company duly organized, validly existing, and in good standing under the laws of the State ofDelawareand is in compliance with the laws of each state (within the United States of America) in which any applicablePropertyis located to the extent necessary to its performance under thisAgreement;
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(ii) The execution and delivery of thisAgreementby suchIssuer, and the performance and compliance with the terms of thisAgreementby suchIssuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any materialagreementor other instrument to which it is a party or by which it is bound;
(iii) SuchIssuerhas the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by thisAgreement, has duly authorized the execution, delivery and performance by it of thisAgreementand any applicableJoinder Agreement, and has duly executed and delivered thisAgreementand any applicableJoinder Agreement;
(iv) ThisAgreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of suchIssuer, enforceable against suchIssuerin accordance with the termshereof, subject to (A) applicable bankruptcy, insolvency, reorganization, receivership, 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;
(v) SuchIssueris not in violation of, and its execution and delivery of, thisAgreementor any applicableJoinder Agreementand its performance and compliance with the terms of thisAgreementwill not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of suchIssuer to perform its obligations under this Agreement or the financial conditionof suchIssuer;
(vi) No litigation is pending or, to suchIssuer’s knowledge, threatened against suchIssuerthat is reasonably likely to be determined adversely to suchIssuerand, if determined adversely to suchIssuer, would prohibit suchIssuerfrom entering into thisAgreementor that, in suchIssuer’sgood faith and reasonable judgment, islikely to materially and adversely affect either the ability of suchIssuer to perform its obligations under this Agreement or the financial conditionof suchIssuer;
(vii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by suchIssuerof, or the compliance by suchIssuerwith, thisAgreementor the consummation of the transactions of suchIssuercontemplated by thisAgreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of suchIssuerto perform its obligationshereunder;
(viii) Each officer and employee of suchIssuerthat has responsibilities concerning the management, servicing and administration of the applicableProperties,LeasesandMortgage Loansis covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section3.06; and
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(ix) To suchIssuer’s knowledge, each of thePropertiesowned by suchIssueror securing aMortgage Loanowned by suchIssueris a commercialpropertyand is operated for commercial purposes. The representations and warranties of eachIssuerset forth in Section2.01(e)shall survive the execution and delivery of thisAgreementand shall inure to the benefit of thePersonsto whom and for whose benefit they were made for so long as suchIssuerremains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Section 2.02 Recordings and Filings; Books and Records;Document Defects.
(a) In connection with theGrantmade by eachIssuerto theIndenture Trusteepursuant to the granting clause of theIndenture, eachIssuershall cause the delivery of the applicableLease Filesfor the applicableLeasesand the applicableLoan Filesfor the applicableMortgage Loansto theCustodianin accordance with theCustody Agreementfor the benefit of theIndenture Trusteein furtherance of suchGrantand suchIssuershall cause: (i) with respect to thePropertiesowned by suchIssuer: (A) eachMortgage,UCC Financing Statementand continuation statement referred to in the definition of “Lease File”hereinto be submitted to the appropriateTitle Company(as defined below) on or before the applicableSeries Closing DateorTransfer Datefor recording or filing, as the case may be, in the appropriate public office for realpropertyrecords or forUCC Financing Statements, at the expense of suchIssuerand (B) each title insurance binder or commitment referred to in the definition of “Lease File”hereinto be issued as a final title insurance policy by the title companies (the “Title Companies”) issuing same (the “Title Insurance Policies”) and (ii) with respect to theMortgage Loansowned by suchIssuer, promptly (and in any event within 60 days following the applicableSeries Closing DateorTransfer Date) each assignment ofMortgagein favor of theCollateral Agentreferred to in clauses (v) and (vi) of the definition of “Loan File” in the Custody Agreement and eachUCC Financing Statementon FormUCC-2andUCC-3in favor of theCollateral Agentreferred to in clause (iii) of such definition to be submitted for recording or filing, as the case may be, in the appropriate public office for realpropertyrecords or forUCC Financing Statements. Each such assignment and eachMortgageshall reflect that, following recording, it should be returned by the public recording office to theCustodian, on behalf of theIndenture Trustee(or to theProperty Manager(or its designee), who shall then deliver such recorded document to theCustodian), and each suchUCC Financing Statementshall reflect that the file copy thereof should be returned to theCustodian, for the benefit of theIndenture Trustee(or to theProperty Manager(or its designee), who shall then deliver such recorded document to theCustodian) following filing;provided, that in those instances where the public recording office retains the originalMortgage, assignment ofMortgageandAssignment of Leases, theProperty Manager, on behalf of theIndenture Trustee, shall obtain therefrom a certified copy of the recorded original. Each of theTitle Companiesissuing theTitle Insurance Policiesshall be instructed by the applicableIssuerto deliver such policies to theCustodian, for the benefit of theIndenture Trustee. TheProperty Manager, on behalf of theIndenture Trustee, shall use reasonable efforts to diligently pursue with theTitle Companiesthe return of each of theMortgages, assignments ofMortgagesand UCC Financing Statements from the appropriate recording or filing offices and the delivery of theTitle Insurance Policiesby the relatedTitle Company. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, theIndenture Trusteeor theCustodianshall notify theProperty Managerand theProperty Managershall promptly prepare and cause to be executed a substitute therefor or cure such defect, as the case may be, and thereafter, theProperty Managershall cause the same to be duly recorded or filed, as appropriate. TheProperty Managershall file any continuation statements necessary to continue the effectiveness of theUCC Financing Statements. TheIndenture Trusteeand the relatedIssuershall cooperate as necessary for theProperty Managerto perform such obligations.
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(b) EachIssuershall deliver to and deposit with, or cause to be delivered to and deposited with, theProperty Managerall documents and records in the possession of suchIssueror any relatedOriginatorsthat relate to the applicableProperties,LeasesandMortgage Loansand that are not required to be a part of aLease Fileor aLoan Filein accordance with the definitions thereof, and theProperty Managershall hold all such documents and records in trust on behalf of theIndenture Trustee(in hard copy or electronic format). TheProperty Manager’s possession of such documents and records shall be at the will of the relatedIssuerand theIndenture Trusteefor the sole purpose of facilitating the servicing of the applicableLeases,Mortgage LoansandPropertiespursuant to thisAgreementand such possession by theProperty Managershall be in a custodial capacity only on behalf of theIndenture Trustee. The ownership of such documents and records shall be vested in eachIssuer, as applicable, subject to the lien of theIndenture, and the ownership of all documents and records with respect to the applicableLeases,Mortgage LoansandPropertiesthat are prepared by or which come into possession of theProperty Manageror theSpecial Servicershall immediately vest in suchIssuer, subject to the lien of theIndenture, and shall be delivered to and deposited with theProperty Manager, in the case of documents or records in the hands of theSpecial Servicer, and retained and maintained in trust by theProperty Managerin such custodial capacity only on behalf of theIndenture Trustee, except as otherwiseprovided herein. All such documents and records shall be appropriately maintained in a manner to clearly reflect the ownership of such documents and records by the applicableIssuer, subject to the lien of theIndenture, and that such documents and records are being held on behalf of theIndenture Trustee, and theProperty Managershall release such documents and records from its custody only in accordance with thisAgreement.
(c) If any party hereto discovers that any document constituting a part of aLease FileorLoan Filehas not been properly executed, is missing, contains information that does not conform in any respect with the corresponding information set forth in theOwned Property ScheduleorMortgage Loan Schedule(and the terms of such document have not been modified by written instrument contained in theLease Fileor theLoan File) or does not appear to be regular on its face (each, a “Document Defect”), such party shall give prompt written notice thereof to the other parties thereto. Upon its discovery or receipt of notice of any suchDocument Defect, theProperty Managershall notify theIssuersand any applicable Rating Agency. If the applicableIssuerdoes not correct anyDocument Defectwithin 90 days of its receipt of such notice and suchDocument Defectmaterially and adversely affects the value of, or the interests of suchIssuerin, the relatedLease,PropertyorMortgage Loan, theProperty Managershall, on behalf of suchIssuer, and subject to the provisions of Section2.03to the same extent as if suchDocument Defectwere aCollateral Defect, exercise such rights and remedies as suchIssuermay have under Section2.03with respect to suchDocument Defectin such manner as it determines, in itsgood faith and reasonable judgment, isin the best interests of suchIssuer.
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(d) TheProperty Managershall monitor the delivery of theLease Filesand theLoan Filesto theCustodian, for the benefit of theIndenture Trustee.
(e) Notwithstanding the foregoing, the delivery of a commitment to issue a policy of owner’s title insurance in lieu of the delivery of the actual policy of owner’s title insurance shall not be considered aDocument Defectwith respect to anyLease Fileif such actual policy of insurance is delivered to theCustodiannot later than 270 days after theClosing Date.
Section 2.03 Repurchase or Transfer andExchangeforDocument Defects,Collateral Defectsand Breaches of Representations and Warranties.
(a) If any party hereto discovers or receives notice that any document required to be included in anyLoan FileorLease Fileis missing (after the date it is required to be delivered) or is otherwise deficient or that there exists a breach of any representation or warranty relating to anyMortgage Loan,PropertyorLeaseset forth in Section 2.20, Section 2.21 or Section 2.22 of theIndentureand if such absence,deficiencyor breach materially and adversely affects (a) the interests of the applicableIssuerin, or the value of, suchMortgage Loan,PropertyorLeaseor (b) the collectability or enforceability of theLeaseorMortgagewith respect to the Property (a “Collateral Defect”), the party discovering suchCollateral Defectshall give prompt written notice thereof to the other parties hereto. Promptly upon becoming aware of any suchCollateral Defect, theProperty Managershall request that suchIssuer, not later than 60 days from the receipt by suchIssuerof such request, (i) cure suchCollateral Defectin all material respects, (ii) cause suchProperty,LeaseorMortgage Loanto be released from theCollateralin accordance with Section 7.04 of thisAgreement, or (iii) substitute one or moreQualified Substitute Propertiesfor the subjectProperty, one or moreQualified Substitute PropertiesorQualified Substitute Loansfor the subjectMortgage Loanor one or moreQualified Substitute Hybrid Leasesfor the subjectHybrid Leasein accordance with the procedures set forth in Section 7.01 of thisAgreement;providedthat if (i) suchCollateral Defectis capable of being cured but not within such 60-day period, (ii) suchIssuerhas commenced and is diligently proceeding with the cure of suchCollateral Defectwithin such 60-day period, and (iii) suchIssuershall have delivered to, theProperty Manager, theIndenture Trusteeand theCustodiana certification executed on behalf of suchIssuerby an officer thereof setting forth the reason suchCollateral Defectis not reasonably capable of being cured within an initial 60-day period and what actions suchIssueris pursuing in connection with the cure thereof and stating that suchIssueranticipates that suchCollateral Defectwill be cured within an additional period not to exceed 60 more days, then suchIssuershall have up to an additional 60 days commencing on the 61st day from receipt by suchIssuerof such request to complete such cure.
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(b) If anIssuerhas elected to release or to substitute one or more of thePropertiesorMortgage Loansand theProperty Managerand/or suchIssuerhas delivered the Officer’s Certificates referenced in Sections7.01and 7.04, respectively, theProperty Managershall, and is hereby authorized and empowered by suchIssuerand theIndenture Trusteeto, prepare, execute and deliver in its own name, on behalf of suchIssuer, theIndenture Trusteeand theCollateral Agent, on behalf of theIndenture Trustee, or any of them, the endorsements, assignments and other documents contemplated by Section7.01or Section7.04necessary to effectuate anexchangeor release pursuant to Section2.03(a), and suchIssuer, theIndenture Trusteeand theCollateral Agentshall execute and deliver any limited powers of attorney substantially in the form ofExhibit D prepared by theProperty Managerand necessary to permit theProperty Managerto do so;provided,however, that none of the applicableIssuer, the applicableIssuer Member, the applicableIssuerboard of managers, theIndenture Trusteeor theCollateral Agentshall be held liable for any misuse of any such power of attorney by theProperty Managerand theProperty Managerhereby agrees to indemnify suchIssuer, suchIssuer Member, suchIssuerboard of managers, theIndenture Trusteeand theCollateral Agentagainst, and hold suchIssuer, suchIssuer Member, suchIssuerboard of managers, theIndenture Trusteeand theCollateral Agentharmless from, any loss or liability arising from any misuse of such power of attorney. In connection with any such release or substitution by anIssuer, theProperty Manageror theSpecial Servicer, as appropriate, shall concurrently deliver the relatedLease FileorLoan File, as applicable, to suchIssuer.
(c) Subject to the terms of theGuaranty, this Section2.03provides the sole remedies available to theIndenture Trusteeand theNoteholderswith respect to anyCollateral Defect. If anyIssuerdefaults on its obligations to release or substitute for anyPropertyorMortgage Loanas contemplated by Section2.03(a), such default shall be deemed anEvent of Defaultunder theIndentureand theProperty Managershall promptly notify theIndenture Trusteeand any applicable Rating Agency and shall take such actions with respect to the enforcement of such obligations,includingthe institution and prosecution of appropriate proceedings, and theProperty Managershall notify theControlling Partyof eachSeriesof any proposed action and, prior to theProperty Managertaking such action, suchControlling Partiesshall consent to such action. Any and all expenses incurred by theProperty Manageror theIndenture Trusteewith respect to the foregoing shall constituteProperty Protection Advancesin respect of the affectedPropertyorMortgage Loan.
Section 2.04 Non Petition Agreement.
Each Issuer will cause each party to any Purchase and Sale Agreement to covenant and agree that such party shall not institute against, or join any other Person in instituting against, any Issuer, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or any other proceeding under any federal or state bankruptcy or similar law.
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ARTICLE III
ADMINISTRATION AND SERVICING OF PROPERTIES,LEASESANDMORTGAGE LOANS
Section 3.01 Administration of theProperties,LeasesandMortgage Loans.
(a) Each of theProperty Managerand theSpecial Servicershall service and administer theProperties,LeasesandMortgage Loansthat it is obligated to service and administer pursuant to thisAgreementon behalf of theIssuersand in the best interests and for the benefit of theNoteholdersand the holders of theIssuer Interests(as a collective whole), in accordance with any and all applicable laws and the terms of thisAgreement, theProperty Insurance Policiesand the respectiveLeasesandMortgage Loansand, to the extent consistent with the foregoing, in accordance with theServicing Standard. Without limiting the foregoing, and subject to Section3.18, (i) theProperty Managershall service and administer eachLease(and each relatedProperty) and eachMortgage Loanas to which noServicing Transfer Eventhas occurred and eachCorrected Unit, and (ii) theSpecial Servicershall service and administer eachLease(and each relatedProperty) and eachMortgage Loanas to which aServicing Transfer Eventhas occurred and that is not aCorrected Unitor has not been released from theLienof the relatedMortgagein accordance with thisAgreementand the other Transaction Documents;provided, however, that theProperty Managershall continue to collect information and prepare and deliver all reports to theIndenture Trusteeand eachIssuerrequiredhereunderwith respect to anySpecially Managed Unit(and the relatedMortgageorLeases), and further to render such incidental services with respect to anySpecially Managed Unitas are specificallyprovidedforherein. No direction, consent or approval or lack of direction, consent or approval of anyControlling Partyor theRequisite Global Majoritymay (and theSpecial Serviceror theProperty Managerwill ignore and act without regard to any such advice or approval or lack of approval that theSpecial Serviceror theProperty Managerhas determined, in its reasonable, good faith judgment, would) (A) require or cause theSpecial Serviceror theProperty Managerto violate applicable law, theServicing Standard(unlessSTORE Capitalis theProperty ManagerorSpecial Servicer, as applicable) or the terms of anyMortgage Loanor anyLeaseor (B) expand the scope of theProperty Manager’s orSpecial Servicer’s responsibilities under thisAgreement. In addition, neither theProperty Managernor theSpecial Servicer, acting in its individual capacity, shall take any action or omit to take any action as lessor of anyPropertyor holder of anyMortgage Loanif such action or omission would materially and adversely affect the interests of theNoteholdersor theIssuer Interests, or anyIssuer. None of theProperty Manager, theSpecial Serviceror theBack-Up Managershall be liable to theIndenture Trustee, anyNoteholderor any otherPersonfor following any direction of aControlling Party hereunder.
(b) Subject to Section3.01(a), theProperty Managerand theSpecial Servicereach shall have full power and authority, acting alone, to do or cause to be done any and all things in connection with such servicing and administration in accordance with theServicing Standard. Without limiting the generality of the foregoing, each of theProperty Managerand theSpecial Servicer, in its own name, with respect to each of theProperties,LeasesandMortgage Loansit is obligated to servicehereunder, is hereby authorized and empowered by the applicableIssuerand theIndenture Trusteeto execute and deliver, on behalf of each suchIssuerand theIndenture Trustee: (i) any and allUCC Financing Statements, continuation statements and other documents or instruments necessary to maintain the lien created by anyMortgageor other security document in the relatedLease FileorLoan Fileon the relatedCollateral; (ii) in accordance with theServicing Standardand subject to Section3.16, any and all modifications, waivers,amendmentsor consents to or with respect to any documents contained in the relatedLease FileorLoan File, other than the Transaction Documents, (iii) subject to theServicing Standard, all documents to be executed by theIndenture Trusteepursuant to the last sentence of the definition ofPermitted Encumbrancesand (iv) any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments. Subject to Section3.08, each applicableIssuerand theIndenture Trusteeshall, at the written request of aServicing Officerof theProperty Manageror theSpecial Servicer, execute and deliver to theProperty Manageror theSpecial Servicer, as the case may be, any limited powers of attorney (substantially in the form ofExhibit D attached hereto) and other documents furnished by theProperty Manageror theSpecial Servicer, as applicable, and necessary or appropriate to enable it to carry out its servicing and administrative dutieshereunder;provided,however, that none of theIssuers, theIssuer Membersor theIndenture Trusteeshall be held liable for any misuse of any such power of attorney by theProperty Manageror theSpecial Servicerand each of theProperty Managerand theSpecial Servicerhereby agree to indemnify eachIssuer, theIssuer Membersand theIndenture Trusteeagainst, and hold eachIssuer, theIssuer Membersand theIndenture Trusteeharmless from, any cost, loss or liability arising from any misuse by of such power of attorney. Notwithstanding anything containedhereinto the contrary, theProperty Managershall not, without theIndenture Trustee’s written consent: (i) initiate any action, suit or proceeding solely under theIndenture Trustee’s name without indicating theIndenture Trustee’s representative capacity or (ii) take any action with the intent to cause, and which actually does cause, theIndenture Trusteeto be registered to do business in any state.
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(c) Promptly after any request therefor, theProperty Managershall provide to theIndenture Trustee: (i) the most recent inspection report prepared or obtained by theProperty Manageror theSpecial Servicerin respect of eachPropertypursuant to Section3.10(a); (ii) the most recent available operating statement and financial statements of the relatedTenantorBorrowercollected by theProperty Manageror theSpecial Servicerpursuant to Section3.10(d), together with the accompanying written reports to be prepared by theProperty Manageror theSpecial Servicer, as the case may be, pursuant to Section3.10(b); and (iii) any and all notices and reports with respect to anyPropertyas to which environmental testing is contemplated by thisAgreementor the otherTransaction Documents.
(d) The relationship of each of theProperty Managerand theSpecial Servicerto eachIssuerand theIndenture Trusteeunder thisAgreementis intended by the parties to be and shall be that of an independent contractor and not that of a joint venturer, partner or agent.
(e) TheProperty Manageragrees to service and administerExcluded Assetson behalf of the applicableIssuers, in accordance with any and all applicable laws, theProperty Insurance Policiesand the respectiveLeasesandMortgage Loansand, to the extent consistent with the foregoing, in accordance with theServicing Standard. Unless and until anExcluded Assetis added to theCollateral Poolas aQualified Substitute Property, the terms of thisAgreementthat relate to theCollateral Pool,includingArticlesIII(other than this Section3.01(e)), ArticleIV, ArticleV, ArticleVIand ArticleVII, shall not apply with respect to anyExcluded Assets.
Section 3.02 Collection ofMonthly Lease PaymentsandMonthly Loan Payments;General Receipts Accounts;Lockbox Transfer Accounts;Collection Account;Release Account.
(a) Each of theProperty Managerand theSpecial Servicershall undertake reasonable efforts to collect all payments called for under the terms and provisions of theLeasesand theMortgage Loansit is obligated to servicehereunderand shall, to the extent such procedures shall be consistent with thisAgreement, follow such collection procedures as it would follow were it the owner of suchLeasesandMortgage Loans. Consistent with the foregoing and theServicing Standard, theSpecial Serviceror theProperty Manager, as the case may be, may waive anyNet Default Interestor late payment charge it is entitled to in connection with any delinquent payment on aLeaseorMortgage Loanit is obligated to servicehereunder.
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(b) TheProperty Managershall establish and maintain, or cause to be established and maintained, one or more accounts (each, a “General Receipts Account”) with one or more banks (each, a “General Receipts Account Bank”). On or prior to the applicableSeries Closing Date(or, if later, the date the relatedLeaseorMortgage Loanis first included in theCollateral Pool), theProperty Managershall instruct eachTenantandBorrowerto make all payments into aGeneral Receipts Account. EachGeneral Receipts Accountshall (i) be maintained at an institution that satisfies the institutional requirements of clauses (i) or (ii) of the definition ofEligible Accountor (ii) is otherwise acceptable to theRating Agencies(as evidenced by written confirmation from suchRating Agencies) and may be an account to which payments relating to other assets serviced or managed by theProperty Managerare paid;provided, that such account shall be in the nature of a clearing account andSTORE Capitalor any successor thereto (except for successorProperty Managersnot affiliated withSTORE Capital) shall not have access to, or control over, such account. Each of theProperty Managerand theSpecial Servicershall, on or prior to eachSeries Closing Date(or, if applicable, such other date of acquisition), as to thoseLeasesandMortgage Loansit is obligated to servicehereunder, instruct the relatedTenantorBorrowerto make allMonthly Lease PaymentsandMonthly Loan Paymentsto aGeneral Receipts Account. TheProperty Managershall cause all amounts deposited into theGeneral Receipts Accountwith respect to theCollateralto be transferred to theCollection Accountor theLockbox Transfer Accountwithin oneBusiness Dayafter such funds have been identified, cleared and become available in accordance with the polices of theGeneral Receipts Account Bank.
(c) TheProperty Managermay establish and maintain one or more segregated accounts in the name of theProperty Manageron behalf of theIndenture Trustee, held for the benefit of theNoteholders(each, a “Lockbox Transfer Account”) with one or more banks (each, a “Lockbox Transfer Account Bank”). EachLockbox Transfer Accountshall be anEligible Account. EachLockbox Transfer Accountshall be subject to anAccount Control Agreementamong theProperty Manager, theBack-Up Manager, theIndenture Trusteeand the applicableLockbox Transfer Account Bank. Except as expressly permittedherein, neither theProperty Managernor anyIssuerwill have any right of withdrawal from theLockbox Transfer Account, and each of theProperty Managerand theBack-Up Managerhereby covenants and agrees that it shall not withdraw, or direct anyPersonto withdraw, any funds from theLockbox Transfer Account.
(d) TheProperty Managershall establish and maintain one segregated account in the name of theIssuersfor the benefit of theIndenture Trusteeon behalf of theNoteholders, for the collection of payments on and other amounts received in respect of theLeases, thePropertiesand theMortgage Loans(collectively, the “Collection Account”), which shall be established in such manner and with the type of depository institution (the “Collection Account Bank”) specified in thisAgreement. Initially, the Collection Account Bank shall be Citibank, N.A. TheCollection Accountshall be anEligible Account. If theCollection Account Bankis not the same depository institution as theIndenture Trustee, then theCollection Accountwill be subject to an Account Control Agreement in form and substance reasonably satisfactory to theIndenture Trusteepursuant to which theCollection Account Bankagrees to follow the instructions of theIndenture Trusteewith respect to theCollection Accountand the amounts on deposit therein. Subject to Section3.04, neither theProperty Managernor anyIssuerwill have any right of withdrawal from theCollection Account, and theProperty Managerhereby covenants and agrees that it shall not withdraw, or direct anyPersonto withdraw, any funds from theCollection Account;provided, however, that theProperty Managermay, on behalf of the applicableIssuer, at any time make withdrawals from theCollection Accountin respect of amounts relating toExcluded Assets. TheCollection Accountshall be maintained by theIndenture Trusteeas a segregated account, separate and apart from trust funds created for trust certificates or bonds of other series serviced and the other accounts of theProperty Manager.
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(e) TheProperty Managershall deposit or cause to be deposited in theCollection Account, on eachBusiness Dayand within two (2)Business Daysafter receipt, the following payments and collections received or made by or on behalf of theProperty Manageron or after the later of the relatedSeries Closing Dateand the applicableTransfer Date(other than payments due before the applicableTransfer Date) or, in the case of collections and payments to theGeneral Receipts Account, on eachBusiness Day, theProperty Managershall instruct eachGeneral Receipts Account Bankto transfer the following payments and collections deposited in theGeneral Receipts Accountprior to the end of suchBusiness Day(A) to theLockbox Transfer Accountand, within oneBusiness Daythereafter from theLockbox Transfer Accountinto theCollection Accountor (B) directly into theCollection Account, in each case, immediately after such funds have been identified, cleared and become available in accordance with the policies of theGeneral Receipts Account Bank:
(i) all payments on account ofMonthly Lease PaymentsandMonthly Loan Payments;
(ii) all payments of other amounts payable by theTenantson theLeasesandBorrowerson theMortgage Loans, except for escrows and impounds andincludingwithout limitation amounts in respect ofAdditional Servicing Compensationpursuant to Section3.09;
(iii) allInsurance Proceeds,Condemnation ProceedsandLiquidation Proceedsreceived in respect of anyProperty,LeaseorMortgage Loanother than (A) proceeds applied to the restoration ofpropertyor released to the relatedTenantorBorrowerin accordance with thisAgreement, or (B) proceeds deposited into theRelease Accountin accordance with thisAgreementbecause such amounts were greater than or equal to theCollateral Valueof the relatedPropertyorMortgage Loan;
(iv) theRelease Pricefrom the release of anyPropertyto the extent not deposited into theRelease Account; and theRelease Pricefrom the release of anyPropertytransferred from theRelease Accountto theCollection Accountpursuant to thisAgreementand all proceeds representing earnings on investments in theRelease Account(includinginterest on anyPermitted Investments) made with such proceeds;
(v) any amounts required to be deposited by theProperty Manageror theSpecial Servicerin theCollection Accountin connection with losses resulting from a deductible clause in a blanket hazard insurance policy;
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(vi) any amounts paid by any party to indemnify theIssuers, theIssuer Members, theIndenture Trustee, theProperty Manager,Back-Up Manageror theSpecial Servicerpursuant to any provision of thisAgreementor theIndenture;
(vii) any amounts received on account of payments under the guarantiesprovidedby relatedLease GuarantorsorLoan Guarantor; and
(viii) any other amounts required to be so deposited under thisAgreement.
Upon receipt of any of the amounts described in clauses (i) through (iii) above with respect to any Specially Managed Unit, the Special Servicer shall promptly but in no event later than the second Business Day after receipt remit such amounts to the Property Manager for deposit into the Collection Account in accordance with the third preceding paragraph, unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item should not be deposited because of a restrictive endorsement or other reasonably appropriate reason. With respect to any such amounts paid by check to the order of the Special Servicer, the Special Servicer shall endorse such check to the order of the Property Manager and shall deliver promptly, but in no event later than one Business Day after receipt, any such check to the Property Manager by overnight courier, unless the Special Servicer determines, consistent with the Servicing Standard, that a particular item cannot be so endorsed and delivered because of a restrictive endorsement or other reasonably appropriate reason.
(f) TheProperty Managershall establish and maintain at a bank designated by theIndenture TrusteeaRelease Account. TheRelease Accountshall be anEligible Account. The funds held in theRelease Accountmay be held as cash or invested inPermitted Investmentsin accordance with the provisions of Section3.05(a). TheRelease Accountand the amounts on deposit therein will be pledged to theIndenture Trusteeunder theIndenture. TheProperty Managerwill deposit or cause to be deposited in theRelease Account, on the date of receipt, (i) theRelease Pricefrom the sale of anyReleased PropertyorReleased Loan(other than anySeries Collateral Release Price(except for any excess proceeds as described in the following sentence) orRelinquished Property Proceedsdeposited into theExchange Accountpursuant to Section7.10 hereinand the applicableMaster Exchange Agreement) and (ii)providedthat such amounts are greater than or equal to theCollateral Valueof the relatedPropertyorMortgage Loan,Condemnation Proceeds,Insurance Proceedsand proceeds of anInsured Casualty. For the avoidance of doubt, anySeries Collateral Release Pricereceived will be deposited into theCollection Accountin accordance with theIndenture, and any excess proceeds remaining after prepaying the applicableSeries of Notesin connection with aSeries Collateral Releasewill be remitted to theRelease Accountas aRelease Price. Pursuant to theEscrow Agreement,Relinquished Property Proceedsin theExchange Accountmay be transferred to theRelease Accountfollowing the occurrence of certain events specified therein and, in accordance with Section3.05(b), suchRelinquished Property Proceedsmay be used to acquire aQualified Substitute Property.
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Section 3.03 Advances.
(a) Each of theProperty Managerand theSpecial Servicershall, as to thosePropertiesandMortgage Loansit is obligated to servicehereunder, maintain accurate records with respect to eachPropertyandMortgage Loanreflecting the status of real estate taxes, ground rents, assessments and other similar items that are or may become a lien thereon, andGround Leaserenewals and the status of insurance premiums payable in respect thereof that, in each case, the relatedTenantorBorroweris contractually or legally obligated to pay under the terms of the applicableLeaseorMortgage Loan, and, subject to Section3.03(c)below, theProperty Managershall effect payment thereof, as anAdvanceor otherwise as payment of anEmergency Property Expensefrom funds on deposit in theCollection Account, as described below, if not paid by suchTenantorBorrowerprior to the applicable penalty ortermination date, promptly after theProperty ManagerorSpecial Servicer, as applicable, receives actual notice from any source of such nonpayment by suchTenantorBorrower. For purposes of effecting any such payment for which it is responsible, theProperty Manageror theSpecial Servicer, as the case may be, shall applyEscrow Paymentsas allowed under the terms of the relatedLeaseorMortgage Loanor, if suchLeaseorMortgage Loandoes not require the relatedTenantorBorrowerto escrow for the payment of real estate taxes, assessments and insurance premiums, each of theProperty Managerand theSpecial Servicershall, as to thoseLeasesandMortgage Loansit is obligated to servicehereunder, enforce the requirement of the relatedLease and Mortgage Loanthat suchTenantorBorrowermake payments in respect of such items at the time they first become due.
(b) In the event that (i) aMonthly Lease Payment, or any portion thereof, on anyLease, or aMonthly Loan Payment, or any portion thereof, on anyMortgage Loan, has not been made on the relatedDue Dateor (ii) theNotesof anySeriesare not paid in full on the relatedRated Final Payment Dateor (iii) anyPropertyhas become untenanted, then theProperty Manager, subject to its determination that such amounts are notNonrecoverable Advances, will be obligated to make aP&I Advance;provided, that theProperty Managerwill not be required to make anyadvanceto cover (A) any resulting shortfall in the scheduled payment of principal on anyClass of Noteson or after theAnticipated Repayment Date, (B) theMake Whole Amount, (C)Post-ARD Additional Interest, (D) DeferredPost-ARD Additional Interestor (E) the Interest Carry-Forward Amount. TheProperty Managerwill be required to deposit suchP&I Advanceinto thePayment Accountnot later than 11:00 a.m. New York time on theRemittance Date, in an amount equal to the excess of (x) the scheduled monthly amount required to be paid with respect to principal and interest on theNoteson the relatedPayment Date, over (y) the amount on deposit in thePayment Accountprior to such deposit by theProperty Manager, taking into account all amounts on deposit in theCollection Accountthat are required to be transferred to thePayment Accountfor suchPayment Date. If a late payment of aMonthly Lease Paymentis received on or prior to theRemittance Date, theProperty Managershall immediately set-off such late payment against suchP&I Advance, and no interest shall be payable on suchP&I Advanceunless such late payment shall have been received too late on the date of its receipt for theProperty Managerto invest such funds. On or before 5:00 p.m. New York time on theRemittance Datein the event that that the full amount of anyP&I Advancerequired to be made by theProperty Managerhas not been so made, theIndenture Trusteeshall provide notice of such failure to aServicing Officerof theProperty Managerand theBack-Up Manager. TheBack-Up Manager, as successorProperty Manager, will be required to make any requiredP&I Advanceby 11:00 a.m. New York City time on the relatedPayment Dateto the extent that anyP&I Advancerequired to be made by theProperty Managerpursuant to the immediately preceding sentence is not made and theBack-Up Manager, as successorProperty Manager, receives notice thereof, subject to theBack-Up Manager’s sole discretion exercised in good faith and in accordance with Section3.03(g)below, that theP&I Advancewill not be aNonrecoverable Advance. If theProperty Manager(includingtheBack-Up Property Manager, as successorProperty Manager) fails to make suchAdvance, theIndenture Trusteewill be required to make any requiredP&I Advanceby 3:00 p.m. New York City time on the relatedPayment Dateto the extent that anyP&I Advancerequired to be made by theProperty Managerpursuant to the immediately preceding sentence is not made and theIndenture Trusteereceives notice thereof, subject to theIndenture Trustee’s sole discretion exercised in good faith, that theP&I Advancewill ultimately be recoverable from subsequent payments or collections on or in respect ofMortgage Loans,Leasesor theProperties.
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(c) In accordance with theServicing Standard, theProperty Managershalladvancewith respect to eachPropertyany and allProperty Protection Advances;providedthat the particularadvancewould not, if made, constitute aNonrecoverable Advanceand a prudentproperty managerwould make suchadvance. TheProperty Managershall not have any obligation under this Section3.03(c)toadvanceany funds in respect of real estate taxes or premiums onInsurance Policiesthat the relatedTenantorBorroweror the applicableIssueris not contractually or legally obligated to pay, nor to monitor the timely payment of real estate taxes and insurance premiums the payment of which is the responsibility of a person other than suchTenant,BorrowerorIssuer, unless it has actual knowledge of the non-payment of such items and would otherwise make suchadvancein accordance with theServicing Standard. TheBack-Upmanager, as successorProperty Manager, will be required to make any requiredProperty Protection Advanceto the extent that anyProperty Protection Advancerequired to be made by theProperty Managerpursuant to the immediately preceding sentence is not made and theBack-Up Manager, as successorProperty Manager, receives notice thereof, subject to theBack-Up Manager’s sole discretion exercised in good faith, that theProperty Protection Advancewill not be aNonrecoverable Advance. TheIndenture Trusteewill be required to make any requiredProperty Protection Advanceto the extent that anyProperty Protection Advancerequired to be made by theProperty Manager(or theBack-Up Manager, as successorProperty Manager) pursuant to the immediately preceding sentence is not made and theIndenture Trusteereceives notice thereof, subject to theIndenture Trustee’s sole discretion exercised in good faith, that theProperty Protection Advancewill ultimately be recoverable from subsequent payments or collections on or in respect ofLeases,PropertiesorMortgage Loans.
(d) AllAdvances, together withAdvance Interestthereon, shall be reimbursable in the first instance from collections from the relatedLeases,PropertiesandMortgage Loansand further asprovidedin Section 2.11(b) of theIndenture.
(e) If, prior to making anyProperty Protection Advance, theProperty Managershall have determined, in accordance with theServicing Standard, (i) that suchProperty Protection Advance, if made, would constitute aNonrecoverable Advance, and (ii) that the payment of such cost, expense or other amount for which aProperty Protection Advancemight be made is nonetheless in the best interest of theNoteholders, theProperty Managershall, in accordance with theServicing Standard, withdraw funds from theCollection Accountand use such funds in order to pay such costs, expenses and other amounts (collectively, “Emergency Property Expenses”) to the extent necessary to preserve the security interest in, and value of, anyPropertyorMortgage Loan, as applicable. Any such funds withdrawn from theCollection Accountto payEmergency Property Expensesshall not constitute part of theAvailable Amounton anyPayment Date.
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(f) The determination by theProperty Manager(or theBack-Up Manageras successorProperty Manager) that it has made aNonrecoverable Advanceor that any proposedAdvance, if made, would constitute aNonrecoverable Advance, shall be in accordance with (i) with respect toProperty Protection Advances, theServicing Standardand (ii) with respect toP&I Advances, Section3.03(g)below, and, in each case, shall be evidenced by anOfficer’s Certificatedelivered promptly to eachIssuerand to theIndenture Trusteesetting forth the basis for such determination. The determination by theIndenture Trusteethat it has made aNonrecoverable Advanceor that any proposedAdvance, if made, would constitute aNonrecoverable Advance, shall be made in good faith. TheIndenture Trusteemay conclusively rely on any determination by theProperty Managerthat anAdvance, if made, would be aNonrecoverable Advance.
(g) In making a nonrecoverability determination with respect to anyP&I Advance, theProperty Manager(includingtheBack-Up Manageras successorProperty Manager) and theSpecial Servicermay only consider the obligations of theIssuersunder the terms of theTransaction Documentsas they may have been modified, the relatedCollateralin its “as is” or then current conditions and the timing and availability of anticipated cash flows as modified by such party’s assumptions regarding the possibility and effect of future adverse changes, together with such other factors,includingbut not limited to an estimate of future expenses, timing of recovery, the inherent risk of a protracted period to complete liquidation or the potential inability to liquidateCollateralas a result of intervening creditor claims or of a bankruptcy proceeding affecting anyIssuerand the effect thereof on the existence, validity and priority of any security interest encumbering theCollateral, the direct and indirect equity interests in theIssuers, available cash on deposit in theCollection Account, the future allocations and disbursements of cash on deposit in theCollection Account, and the net proceeds derived from any of the foregoing. For the avoidance of doubt, none of theProperty Manager, theBack-Up Manageror theSpecial Servicer, as applicable, shall take into account amounts on deposit in thePost-Closing Acquisition Reserve Accountin making any nonrecoverability determination with respect to anyP&I Advance.
Section 3.04 Withdrawals From theCollection Account,Release Accountand Liquidity Reserve Account.
(a) The applicableAccount Control Agreementshall provide that on eachRemittance Datethe Collection Account Bank shall deliver theAvailable Amountby wire transfer of immediately available funds for deposit into thePayment Accountfor application by theIndenture Trusteeto make payments in accordance with the priorities set forth pursuant to Section 2.11(b) of theIndenture. On or prior to eachRemittance Date, theProperty Managermay withdraw funds from theCollection Accountto pay theProperty Management Fee,Back-Up Fee,Workout Fees,Liquidation Fees,Additional Servicing Compensation, any applicableSpecial Servicing Feedue and payable to theProperty Manager,Back-Up ManagerandSpecial Servicer, and to pay anyEmergency Property Expenses(pursuant to Section3.03(e)) andAdvances(including Nonrecoverable Advances) plus interest thereon (includingto reimburse theIndenture Trusteetherefor);provided, however, that no other amounts may be withdrawn from theCollection Accountby theProperty Manager, except as otherwiseprovidedin thisAgreement. Funds withdrawn by theProperty Managerfor the payment of theProperty Management Fee,Back-Up Fee,Workout Fees,Liquidation Fees,Additional Servicing Compensation, any reimbursements ofAdvances(including Nonrecoverable Advances) plus interest thereon, and any applicableSpecial Servicing Feeshall not constitute part of theAvailable Amounton anyPayment Date.
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(b) In addition, on anyPayment Dateafter theTriple A Notes have been repaid in full, theProperty Managermay direct theIndenture Trusteeto release all (but not less than all) amounts held in theLiquidity Reserve Accountto or at the direction of theIssuersin accordance with the terms of theIndenture. Pursuant to theIndenture, upon such direction of theProperty Manager, theIndenture Trusteeshall release any and all amounts held in theLiquidity Reserve Accountfree and clear of the lien of theIndenture, and such funds shall no longer constituteCollateral.
Section 3.05 Investment of Funds in theCollection Account, theRelease Account, theExchange Reserve Accountand the Liquidity Reserve Account.
(a) TheProperty Managershall direct theCollection Account Bankto invest the funds held in theCollection Accountin one or morePermitted Investmentsselected by suchIssuerbearing interest or sold at a discount, and maturing, unless payable on demand, not later than theBusiness Dayimmediately preceding the next succeedingRemittance Date, which may be in the form of a standing direction. TheProperty Managermay direct any institution maintaining theExchange Reserve Accountto invest the funds held therein in one or more specificPermitted Investmentsbearing interest or sold at a discount, and maturing, unless payable on demand, prior to thePayment Datefollowing the date of such direction, which may be in the form of a standing direction;provided, that suchPermitted Investmentmust have (i) a short-term rating of not less than “A-2” by S&P and (ii) a maturity date prior to thePayment Datefollowing the date of such direction. TheProperty Managermay direct any institution maintaining theRelease Accountto invest the funds held therein in one or more specificPermitted Investmentsbearing interest or sold at a discount, and maturing, unless payable on demand, not later than theBusiness Dayimmediately preceding the day such amounts are required to be distributed pursuant to thisAgreement, which may be in the form of a standing direction. All suchPermitted Investmentsin theCollection Accountand theRelease Accountshall be held to maturity, unless payable on demand. Any investment of funds in theCollection Accountand theRelease Accountshall be made in the name of the applicableIssuerfor the benefit of theIndenture Trustee(in its capacity as such). TheProperty Managermay direct theIndenture Trusteeto invest the funds held in theLiquidity Reserve Accountin one or morePermitted Investmentspursuant to the terms of theIndenture. TheProperty Managershall promptly deliver to theIndenture Trustee, and theIndenture Trusteeshall maintain continuous possession of, anyPermitted Investmentthat is either (i) a “certificated security,” as such term is defined in theUniform Commercial Code, or (ii) otherpropertyin which a secured party may perfect its security interest by possession under theUniform Commercial Codeor any other applicable law. All suchPermitted Investmentsin theCollection Account, theLiquidity Reserve Account, theRelease Accountand theExchange Reserve Accountshall be held to maturity, unless payable on demand. Any investment of funds in theCollection Account, theLiquidity Reserve Account, theRelease Accountand theExchange Reserve Accountshall be made in the name of the applicableIssuerfor the benefit of theIndenture Trustee(in its capacity as such). If amounts on deposit in theCollection Account, theRelease Account, theLiquidity Reserve Accountor theExchange Accountare at any time invested in aPermitted Investmentpayable on demand, theProperty Managershall:
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(x) consistent with any notice required to be given thereunder, demand that payment thereon be made on the last day such Permitted Investment may otherwise mature hereunder in an amount equal to the lesser of (1) all amounts then payable thereunder and (2) the amount required to be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon determination by the Property Manager that such Permitted Investment would not constitute a Permitted Investment in respect of funds thereafter on deposit in the Collection Account or the Release Account, as applicable.
(b) In the event that (i) anyIssuerelects to release aPropertyorMortgage Loanfrom theCollateral Poolunder Section2.03, Section7.02or Section7.04, (ii)Relinquished Property Proceedsare transferred from theExchange Accountto theRelease Accountin accordance with the terms of the applicableMaster Exchange Agreementand theEscrow Agreementor (iii) amounts in connection with aSeries Collateral Releaseare deposited into theRelease Accountpursuant to Section7.11(c)and theIndentureamounts deposited in theRelease Accountshall be applied by theProperty Manager(or theIndenture Trusteebased solely on the instructions of theProperty Managerif theProperty ManagerisSTORE Capital),first, to reimburse theProperty Manager, theSpecial Servicer, theBack-Up Managerand theIndenture Trusteeany amounts owed with respect to unreimbursedExtraordinary ExpensesandAdvances(plusAdvance Interest) thereon andEmergency Property Expensesrelated to suchMortgage Loan,LeaseorPropertyand to pay the expenses related to such release and,second, either to (i) allow anyIssuerto acquire aQualified Substitute Loan,Qualified Substitute Hybrid LeaseorQualified Substitute Propertywithin twelve (12) months following the removal of the relatedReleased PropertyorReleased Loanor (ii) at the option of theProperty Manager, be deposited asUnscheduled Proceedsinto theCollection Account. Any amounts remaining in theRelease Accountfollowing the twelve (12) month period from the related release shall be transferred asUnscheduled Proceedsinto theCollection Account. Notwithstanding the foregoing, during anEarly Amortization Period, all amounts in theRelease Accountshall be deposited asUnscheduled Proceedsinto theCollection Accountand applied asUnscheduled Principal Paymentson thePayment Datefollowing the commencement of suchEarly Amortization Period.
(c) Whether or not theProperty Managerdirects the investment of funds in theCollection Account, theRelease Account, theLiquidity Reserve Account, or theExchange Reserve Account, (i) interest and investment income realized on funds deposited therein, to the extent of theNet Investment Earnings, if any, for theCollection Account, theRelease Accountor theExchange Reserve Accountfor eachCollection Period, shall be added to theAvailable Amountfor suchCollection Periodand (ii) interest and investment income realized on funds deposited therein, to the extent of theNet Investment Earnings, if any, for theLiquidity Reserve Accountshall remain on deposit therein until released in accordance with theIndenture.
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(d) Except as otherwise expresslyprovidedin thisAgreement, if any default occurs in the making of a payment due under anyPermitted Investment, or if a default occurs in any other performance required under anyPermitted Investment, theIndenture Trusteemay take such action as may be appropriate to enforce such payment or performance,includingthe institution and prosecution of appropriate proceedings.
(e) Notwithstanding the investment of funds held in theCollection Account, theRelease Accountor theExchange Reserve Account, for purposes of the calculationshereunder,includingthe calculation of theAvailable Amount, the amounts so invested shall be deemed to remain on deposit in theCollection Account, theRelease Accountor theExchange Reserve Account, as applicable.
(f) Any actual losses sustained on the liquidation of aPermitted Investmentin theCollection Accountor theRelease Accountshall be deposited by the applicableIssuerimmediately, but in no event later than oneBusiness Dayfollowing such liquidation, into theCollection Accountor theRelease Account, as applicable.
Section 3.06 Maintenance of Insurance Policies: Errors and Omissions and Fidelity Coverage.
(a) TheProperty Manager(other than with respect toSpecially Managed Units) and theSpecial Servicer(with respect toSpecially Managed Units) shall use reasonable efforts in accordance with theServicing Standardto cause the relatedTenantorBorrowerto maintain for eachPropertyall insurance coverage as is required under the terms of the relatedLeaseorMortgage Loan, as applicable (includingfor the avoidance of doubt, anyEnvironmental Policy);provided, that if and to the extent that any suchLeaseorMortgage Loanpermits the lessor thereunder any discretion (by way of consent, approval or otherwise) as to the insurance coverage that the relatedTenantorBorroweris required to maintain, theProperty Manageror theSpecial Servicer, as the case may be, shall exercise such discretion in a manner consistent with theServicing Standard, with a view towards requiring insurance comparable to that required under other similarleasesormortgage loanswith express provisions governing such matters; andprovided,further, that, if and to the extent that aLeaseorMortgage Loanso permits, the relatedTenantorBorrowershall be required to obtain the required insurance coverage fromQualified Insurersthat have a claims-paying ability rated at least “A:VIII” byA.M. Best’s Key Rating Guide. If suchTenantorBorrowerdoes not maintain the required insurance or, with respect to anyEnvironmental Policyin place as of the relatedSeries Closing DateorTransfer Date, theProperty Managerwill itself cause such insurance to be maintained withQualified Insurers;provided, that theProperty Managershall not be required to maintain such insurance if theIndenture Trustee(as mortgagee of record on behalf of theNoteholders) does not have an insurable interest or theProperty Managerhas determined (in its reasonable judgment in accordance with theServicing Standard) that either (i) such insurance is not available at a commercially reasonable rate and the subject hazards are at the time not commonly insured against by prudent owners ofpropertiessimilar to thePropertylocated in or around the region in which suchPropertyis located or (ii) such insurance is not available at any rate. TheSpecial Servicershall also use reasonable efforts to cause to be maintained for eachREO Propertyno lesspropertyinsurance coverage than was previously required of theTenantorBorrowerunder the relatedMortgageorLeaseand at a minimum, (i) hazard insurance with a replacement cost rider and (ii) comprehensive general liability insurance, in each case, in an amount customary for the type and geographic location of suchREO Propertyand consistent with theServicing Standard;provided, that all such insurance shall be obtained fromQualified Insurersthat, if they are providing casualty insurance, shall have a claims-paying ability rated at least “A-:VIII” by A.M. Best’s Key Rating Guide. The cost of any such insurance coverage obtained by either theProperty Manageror theSpecial Servicershall be aProperty Protection Advanceto be paid by theProperty Manager. All such insurance policies shall contain (if they insure against loss toproperty) a “standard” mortgagee clause, with loss payable to theProperty Manager, as agent of and for the account of the applicableIssuerand theIndenture Trustee, and shall be issued by an insurer authorized under applicable law to issue such insurance. Any amounts collected by theProperty Manageror theSpecial Servicerunder any such policies (other than amounts to be applied to the restoration or repair of the relatedPropertyor amounts to be released to the relatedTenant, in each case in accordance with theServicing Standard) shall be deposited in theCollection Account, subject to withdrawal pursuant to Section 2.11 of theIndenture.
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(b) TheProperty ManagerorSpecial Servicermay satisfy its obligations underSection3.06(a) by obtaining, maintaining or causing to be maintained a blanket or forced place insurance policy. If applicable, theProperty Manageror theSpecial Servicershall obtain and maintain, or cause to be obtained and maintained on behalf of each applicableIssuer, a master forced place insurance policy or a blanket policy (or an endorsement to an existing policy) insuring against hazard losses (not otherwise insured by aTenantorBorrowerdue to a default by suchTenantorBorrowerunder the insurance covenants of itsLeaseorMortgage Loanor because aTenantorBorrowerpermitted to self-insure fails to pay for casualty losses) on the applicablePropertiesthat it is required to service and administer, which policy shall (i) be obtained from aQualified Insurerhaving a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, and (ii) provide protection equivalent to the individual policies otherwise required underSection3.06(a). TheProperty Managerand theSpecial Servicershall bear the cost of any premium payable in respect of any such blanket policy (other than blanket policies specifically obtained forPropertiesorREO Properties) without right of reimbursement;provided, that if theProperty Manageror theSpecial Servicer, as the case may be, causes anyPropertyorREO Propertyto be covered by such blanket policy, the incremental costs of such insurance applicable to suchPropertyorREO Propertyshall constitute, and be reimbursable as, aProperty Protection Advanceto the extent that, except with respect to anREO Property, such blanket policy provides insurance that the relatedTenantorBorrower, as applicable, has failed to maintain. If theProperty ManagerorSpecial Servicer, as applicable, causes anyPropertyorREO Propertyto be covered by a force-placed insurance policy, the incremental costs of such insurance applicable to suchPropertyorREO Property(i.e., other than any minimum or standby premium payable for such policy whether or not anyPropertyorREO Propertyis covered thereby) shall be paid as aProperty Protection Advance. Such policy may contain a deductible clause (not in excess of a customary amount) in which case theProperty Manageror theSpecial Servicer, as appropriate, shall, if there shall not have been maintained on the relatedPropertyorREO Propertya hazard insurance policy complying with the requirements ofSection3.06(a) and there shall have been one or more losses that would have been covered by such policy, promptly deposit into theCollection Accountfrom its own funds the amount not otherwise payable under the blanket policy in connection with such loss or losses because of such deductible clause. TheProperty Manageror theSpecial Servicer, as appropriate, shall prepare and present, on behalf of itself, theIndenture Trusteeand the applicableIssuer, claims under any such blanket policy in a timely fashion in accordance with the terms of such policy. Any payments on such policy shall be made to theProperty Manageras agent of and for the account of the applicableIssuer, theNoteholdersand theIndenture Trustee.
(c) Each of theProperty Managerand theSpecial Servicershall at all times during the term of thisAgreement(or, in the case of theSpecial Servicer, at all times during the term of thisAgreementin whichSpecially Managed Unitsexist as part of theCollateral) keep in force with aQualified Insurerhaving a claims paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a fidelity bond in such form and amount as would not adversely affect any rating assigned by any Rating Agency to theNotes(as evidenced in writing from each Rating Agency). Each of theProperty Managerand theSpecial Servicershall be deemed to have complied with the foregoing provision if anAffiliatethereof has such fidelity bond coverage and, by the terms of such fidelity bond, the coverage afforded thereunder extends to theProperty Manageror theSpecial Servicer, as the case may be. Such fidelity bond shall provide that it may not be canceled without ten (10) days’ prior written notice to eachIssuer.
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Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) also keep in force with a Qualified Insurer having a claims-paying ability rated at least “A: VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers, employees and agents in connection with its servicing obligations hereunder, which policy or policies shall name the Indenture Trustee as an additional insured and shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes (as evidenced in writing from each Rating Agency). Each of the Property Manager and the Special Servicer shall be deemed to have complied with the foregoing provisions if an Affiliate thereof has such insurance and, by the terms of such policy or policies, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be. Any such errors and omissions policy shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer.
The Back-Up Manager (whether as Back-Up Manager, Property Manager or Special Servicer) shall at all times during the term of this Agreement maintain insurance in conformity with market requirements and shall keep in force with a Qualified Insurer having a claims paying ability rated by at least one of the following Rating Agencies of at least (a) “A3” by Moody’s, (b) “A-” by S&P, (c) “A-” by Fitch or (d) “A:X” by A.M. Best Company, Inc., (i) a fidelity bond (employee dishonesty insurance) in such form and amount as is consistent with the Servicing Standard, and (ii) a policy or policies of insurance covering loss occasioned by the errors and omissions of its officers and employees in connection with its servicing obligations hereunder, which policy or policies shall be in such form and amount as is consistent with the Servicing Standard. The Back-Up Manager shall cause any awards or other amounts payable under such policy or policies that result from the errors or omissions of its officers and employees in connection with its servicing obligations hereunder to be promptly remitted to the Indenture Trustee for application in accordance with the Indenture. The Back-Up Manager shall be deemed to have complied with the foregoing provision if an Affiliate thereof has such fidelity bond and/or errors and omissions coverage and, by the terms of such fidelity bond and/or errors and omissions policy, the coverage afforded thereunder extends to the Property Manager or the Special Servicer, as the case may be.
Each of the Property Manager and the Special Servicer shall at all times during the term of this Agreement (or, in the case of the Special Servicer, at all times during the term of this Agreement in which Specially Managed Units exist as part of the Collateral) also, on behalf of each Issuer, keep in force with a Qualified Insurer having a claims-paying ability rated at least “A:VIII” by A.M. Best’s Key Rating Guide and at least “A” by S&P, a lessor’s general liability insurance policy or policies, which policy or policies shall be in such form and amount as would not adversely affect any rating assigned by any Rating Agency to the Notes without giving effect to any Insurance Policy (as evidenced in writing from each Rating Agency). Any such general liability insurance policy shall provide that it may not be canceled without ten (10) days’ prior written notice to each Issuer and the Indenture Trustee. Any payments on such policy shall be made to the Property Manager as agent of and for the account of any applicable Issuer and the Indenture Trustee.
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If the Property Manager (or its corporate parent), the Special Servicer (or its corporate parent) or the Back-Up Manager (or its corporate parent), as applicable, are rated not lower than “A” by S&P, the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, may self-insure with respect to any insurance coverage or fidelity bond coverage required hereunder, in which case it shall not be required to maintain an insurance policy with respect to such coverage;provided, that STORE Capital may not self-insure with respect to any such insurance coverage or fidelity bond.
Section 3.07 DSCR Reserve Account.
On each Payment Date occurring during any DSCR Sweep Period, the Indenture Trustee shall deposit funds into the DSCR Reserve Account in accordance with Section 2.11(b) and 2.18 of the Indenture. The DSCR Reserve Account shall be an Eligible Account. The Property Manager shall deliver to the Indenture Trustee a calculation of the Monthly DSCR on or before each Remittance Date. The Issuers grant to the Indenture Trustee a first-priority perfected security interest in the DSCR Reserve Account and any and all monies now or hereafter deposited in the DSCR Reserve Account as additional security for payment of the Notes. Until disbursed or applied in accordance herewith, the DSCR Reserve Account shall constitute additional security for the Notes. Upon the occurrence of an Event of Default, the Indenture Trustee may, in addition to any and all other rights and remedies available to the Indenture Trustee, apply any sums then present in the DSCR Reserve Account to the payment of the Notes in such order and priority as set forth in the Indenture.
Section 3.08 Issuers, Custodian and Indenture Trustee to Cooperate; Release of Lease Files andLoanFiles.
(a) If from time to time, and as appropriate for servicing of anyMortgage Loan,Lease, assumption of aLease, modification of aLeaseor the re-leaseor sale of anyProperty, theProperty Manageror theSpecial Servicershall otherwise require the use of anyLease FileorLoan File, as applicable (or any portion thereof), theCustodian, upon written request of theProperty Managerand receipt from theProperty Managerof aRequest for Releasein the form ofExhibit B-l attached hereto signed by aServicing Officerthereof, or upon request of theSpecial Servicerand receipt from theSpecial Servicerof aRequest for Releasein the form ofExhibit B-2 attached hereto, shall release suchLease FileorLoan File, as applicable (or portion thereof) to theProperty Manageror theSpecial Servicer, as the case may be. Upon return of suchLease FileorLoan File, as applicable (or portion thereof) to theCustodian, or upon theSpecial Servicer’s delivery to theIndenture Trusteeof anOfficer’s Certificatestating that (i) suchLeasehas become aLiquidated Leaseor suchMortgage Loanhas been liquidated and all amounts received or to be received in connection with suchLeaseare required to be deposited into theCollection Accountpursuant to Section3.02(a)have been or will be so deposited or (ii) suchPropertyorMortgage Loanhas been sold, a copy of theRequest for Releaseshall be released by theCustodianto theProperty Manageror theSpecial Servicer, as applicable.
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(b) Within seven (7)Business Daysof theSpecial Servicer’s request therefor (or, if theSpecial Servicernotifies eachIssuerand theIndenture Trusteeof an exigency, within such shorter period as is reasonable under the circumstances), each of the applicableIssuerand theIndenture Trusteeshall execute and deliver to theSpecial Servicer, in the reasonable form supplied to suchIssuerand theIndenture Trusteeby theSpecial Servicer, any court pleadings,leases, sale documents or other documents reasonably necessary to the re-lease, foreclosure or sale in respect of anyMortgage LoanorPropertyor to any legal action brought to obtain judgment against anyTenantorBorroweron the relatedLeaseorMortgage Loanor to obtain a judgment against anTenantorBorrower, or to enforce any other remedies or rightsprovidedby theLeaseorMortgage Loanor otherwise available at law or in equity or to defend any legal action or counterclaim filed against suchIssuer, theProperty Manageror theSpecial Servicer;providedthat each of suchIssuerand theIndenture Trusteemay alternatively execute and deliver to theSpecial Servicer, in the form supplied to suchIssuerand theIndenture Trusteeby theSpecial Servicer, a limited power of attorney substantially in the form ofExhibit D issued in favor of theSpecial Servicerand empowering theSpecial Servicerto execute and deliver any or all of such pleadings or documents on behalf of suchIssueror theIndenture Trustee, as the case may be,provided,however, that neither the applicableIssuernor theIndenture Trusteeshall be held liable for any misuse of such power of attorney by theSpecial Servicerand theSpecial Servicerhereby agrees to indemnify suchIssuerand theIndenture Trusteeagainst, and hold suchIssuerand theIndenture Trusteeharmless from, any loss or liability arising from any misuse of such power of attorney. Notwithstanding anything to the contrary, theSpecial Servicershall not, without theIndenture Trustee’s written consent (i) initiate any action, suit or proceeding solely under theIndenture Trustee’s name without indicating its representative capacity or (ii) take any action with the primary purpose of causing, and which actually does cause, theIndenture Trusteeto be registered to do business in any state. Together with such pleadings or documents (or such power of attorney empowering theSpecial Servicerto execute the same on behalf of suchIssuerand theIndenture Trustee), theSpecial Servicershall deliver to each of suchIssuerand theIndenture TrusteeanOfficer’s Certificaterequesting that such pleadings or documents (or such power of attorney empowering theSpecial Servicerto execute the same on behalf of suchIssueror theIndenture Trustee, as the case may be) be executed by suchIssueror theIndenture Trusteeand certifying as to the reason such pleadings or documents are required.
Section 3.09 Servicing Compensation: Interest onAdvances.
(a) As compensation for its activitieshereunder, theProperty Managershall be entitled to receive theProperty Management Feewith respect to eachPropertyandMortgage Loanincluded in theCollateral Pool(excluding theSpecially Managed Units, if any). TheProperty Management Feewith respect to anyPropertyandMortgage Loanshall cease to accrue if thePropertyorMortgage Loanbecomes aSpecially Managed Unit. The right to receive theProperty Management Feemay not be transferred in whole or in part except in connection with the transfer of all of theProperty Manager’s responsibilities and obligations under thisAgreement. Earned but unpaidProperty Managementfees shall be distributable monthly on thePayment Dateby theIndenture Trusteefrom theAvailable Amountpursuant to Section 2.11(b) of theIndenture. For the avoidance of doubt, no compensation shall be due to theProperty Managerwith respect to anyExcluded Assets.
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(b) On eachPayment Date, theProperty Managershall be entitled to receive, and theIndenture Trusteeshall distribute to theProperty Managerfrom thePayment Account, all transaction, returned check, assumption, modification and similar fees and late payment charges received with respect toMortgage LoansandPropertiesthat are notSpecially Managed Units. TheProperty Managerwill also be entitled to anyDefault Interestcollected on aLeaseorMortgage Loan, but only to the extent that (i) suchDefault Interestis allocable to the period (not to exceed 60 days) when the relatedPropertyorMortgage Loandid not constitute aSpecially Managed Unitand (ii) suchDefault Interestis not allocable to cover interest payable to theProperty Manageror theIndenture Trusteewith respect to anyAdvancesmade in respect of the relatedPropertyorMortgage Loan.
(c) As compensation for its activitieshereunder, theSpecial Servicershall be entitled to receive theSpecial Servicing Feewith respect to eachSpecially Managed Unit. TheSpecial Servicing Feewith respect to anySpecially Managed Unitshall cease to accrue if (i) the relatedPropertyorMortgage Loanis sold or otherwise released from the lien of the relatedMortgage, or (ii) suchSpecially Managed Unitbecomes aCorrected Unit. Earned but unpaidSpecial Servicing Feesshall be distributable monthly on thePayment Dateby theIndenture Trusteeout of general collections on theLeases,Mortgage Loansand thePropertieson deposit in thePayment Accountpursuant to Section 2.11(b) of theIndenture.
The Special Servicer’s right to receive the Special Servicing Fee may not be transferred in whole or in part except in connection with the transfer of all of the Special Servicer’s responsibilities and obligations under this Agreement.
(d) On eachPayment Date, theSpecial Servicershall be entitled to receive, and theIndenture Trusteeshall distribute to theSpecial Servicerfrom thePayment Account, all returned check, assumption, modification and similar fees and late payment charges received on or with respect to theSpecially Managed UnitsasSpecial Servicer Additional Servicing Compensationout of funds available for such purpose pursuant to Section 2.11(b) of theIndenture.
(e) TheProperty Manager,Back-Up Managerand theSpecial Servicershall each be required to pay all ordinary expenses incurred by it in connection with its servicing activities under thisAgreement,includingfees of any subservicers retained by it;provided, however, that ifKeyBankis theBack-Up Managerand assumes the role ofProperty ManagerorSpecial Servicer hereunder, in accordance with theServicing Standardand the terms of thisAgreementit shall be permitted to engage third party valuation experts and other consultants to conduct appraisals at the cost of theIssuers. As and to the extent permitted by Section 2.11(b) of theIndenture, theProperty Managerand theIndenture Trusteeshall each be entitled to receive interest at theReimbursement Ratein effect from time to time, accrued on the amount of eachAdvanceand unreimbursedExtraordinary Expensesmade by it for so long as suchAdvanceis outstanding.
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(f) As compensation for its activitieshereunder, theBack-Up Managershall be entitled to receive the monthlyBack-Up Feewith respect to eachPropertyandMortgage Loanincluded in theCollateral Pool. The right to receive the monthlyBack-Up Feemay not be transferred in whole or in part except in connection with the transfer of all of theBack-Up Manager’s responsibilities and obligations under thisAgreement. Earned but unpaidBack-Up Feesshall be payable monthly pursuant to Section 2.11(b) of theIndenture.
Section 3.10 Property Inspections; Collection of Financial Statements; Delivery of Certain Reports.
(a) TheProperty Managershall inspect, or cause to be inspected, allPropertiesin theCollateral Poolat least once every five (5) years, with at least 20% of thePropertiesin theCollateral Poolto be inspected every year (beginning in 2019),includinganyPropertieswithUnit FCCRsbelow 1.0x. TheProperty Managershall prepare a written report of each such inspection performed by it that sets forth in detail the condition of the relatedPropertyand that specifies the existence of (i) any sale or transfer of suchProperty, or (ii) any change in the condition or value of suchPropertythat it, in itsgood faith and reasonable judgment, considersmaterial.
(b) If aLeaseorMortgage Loanbecomes aSpecially Managed Unit, theSpecial Servicershall perform or obtain a physical inspection of the relatedPropertyas soon as practicable thereafter. TheSpecial Servicershall prepare a written report of each such inspection performed by it that sets forth in detail the condition of the relatedPropertyand that specifies the existence of (i) any sale or transfer of suchProperty, or (ii) any change in the condition or value of suchPropertythat it, in itsgood faith and reasonable judgment, considersmaterial. TheSpecial Servicershall deliver to eachIssuer, theIndenture Trusteeand theProperty Managera copy of each such written report prepared by it during each calendar quarter within 15 days of the end of such quarter.
(c) TheProperty ManagerorSpecial Servicer, as applicable, shall receive reimbursement for reasonable out-of-pocket expenses related to anyPropertyinspections from the applicableIssuerpursuant to Section 2.11(b) of theIndenture.
(d) TheSpecial Servicer, in the case of anySpecially Managed Unit, and theProperty Manager, in the case of all otherLeasesandMortgage Loans, shall make reasonable efforts to collect promptly from each relatedTenantorBorrowerand review annual and quarterly financial statements of suchTenantorBorrowerand thePropertiesit operates as the same are required to be delivered by theTenantorBorrowerto the applicableIssuerunder itsLeaseorMortgage Loan.
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Section 3.11 Quarterly Statement as to Compliance.
Each of the Property Manager and the Special Servicer shall deliver to the Issuers, to the Indenture Trustee and, in the case of the Special Servicer, to the Property Manager, within 60 days after the end of the first three calendar quarters of each year and within 120 days after the end of the fiscal year, an Officer’s Certificate stating, as to each signer thereof, that (i) a review of the activities of the Property Manager and the Special Servicer throughout the preceding calendar quarter, and of its performance under this Agreement, has been made under such officer’s supervision, and (ii) to the best of such officer’s knowledge, based on such review, the Property Manager or the Special Servicer, as the case may be, complied in all material respects throughout such period with the minimum servicing standards in this Agreement and fulfilled in all material respects throughout such period its obligations under this Agreement or, if there was noncompliance with such standards or a default in the fulfillment of any such obligation in any material respect, such Officer’s Certificate shall include a description of such noncompliance or specify each such default, as the case may be, known to such officer and the nature and status thereof.
Section 3.12 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 2020, each of the Property Manager and the Special Servicer, at its expense, shall cause an independent, registered public accounting firm (which may also render other services to the Property Manager or the Special Servicer, as the case may be) to furnish to each Issuer and the Indenture Trustee and, in the case of the Special Servicer, to the Property Manager a report containing such firm’s opinion that, on the basis of an examination conducted by such firm substantially in accordance with standards established by the American Institute of Certified Public Accountants, the assertion made pursuant to Section 3.11 regarding compliance by the Property Manager or the Special Servicer, as the case may be, with the minimum servicing standards identified in the Uniform Single Attestation for Mortgage Bankers (to the extent applicable to commercial properties) during the preceding fiscal year is fairly stated in all material respects, subject to such exceptions and other qualifications that, in the opinion of such firm, such institute’s standards require it to report. In rendering such statement, such firm may rely, as to matters relating to direct servicing of leases and mortgage loans by Sub-Managers, upon comparable reports for examinations conducted substantially in accordance with such institute’s standards (rendered within one year of such report) of independent public accountants with respect to the related Sub-Managers.
Section 3.13 Access to Certain Information; Delivery of Certain Information.
Each of the Property Manager and the Special Servicer shall afford to the other, to the Issuers, the Indenture Trustee and the Rating Agencies and to the OTS, the FDIC and any other banking or insurance regulatory authority that may exercise authority over any Noteholder or holder of Issuer Interests, reasonable access to any documentation regarding the Leases, Mortgage Loans and Properties and its servicing thereof within its control, except to the extent it is prohibited from doing so by applicable law or contract or to the extent such information is subject to a privilege under applicable law to be asserted on behalf of an Issuer, the Noteholders or the holders of Issuer Interests. Such access shall be afforded without charge but only upon reasonable prior written request and during normal business hours at the offices of the Property Manager or the Special Servicer, as the case may be, designated by it.
The Property Manager or the Special Servicer shall notify the Indenture Trustee and the Back-Up Manager of any Property whose Tenant has ceased to exercise its business activity on such Property within 30 days of becoming aware of such a circumstance.
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Section 3.14 Management ofREO Propertiesand Properties Relating toDefaulted Assets.
(a) At any time that aPropertyis not subject to aMortgage Loanor aLeaseor is subject to aMortgage Loanor aLeasethat is aDefaulted Assetor with respect to anREO Property, theSpecial Servicer’s decision as to how suchPropertyorREO Propertyshall be managed and operated shall be based on thegood faith and reasonable judgment of the Special Serviceras to the best interest of the applicableIssuerand theNoteholdersby maximizing (to the extent commercially feasible) the net after-tax revenues received by the applicableIssuerwith respect to suchpropertyand, to the extent consistent with the foregoing, in the same manner as would commercialloanandleaseservicers and asset managers operatingpropertycomparable to the respectivePropertyorREO Propertyunder theServicing Standard. The applicableIssuer, theIndenture Trusteeand theSpecial Servicermay consult with counsel at the expense of the applicableIssuerin connection with determinations required under this Section3.14(a). None of theIndenture Trustee, theProperty Manageror theSpecial Servicershall be liable to anyIssuer, theNoteholders, the other parties hereto or each other, nor shall anyIssuerbe liable to anyNoteholdersor to the other parties hereto, for errors in judgment made in good faith in the exercise of their discretion while performing their respective responsibilities under this Section3.14(a). Nothing in this Section3.14(a)is intended to prevent the sale or release of aPropertyorREO Propertypursuant to the terms and conditions contained elsewhere in thisAgreement.
(b) With respect to anyPropertynot subject to aMortgage Loanor aLeaseand anyREO Property, theSpecial Servicershall manage, conserve, protect and operate suchPropertyorREO Propertyfor the benefit of theIssuersin accordance with theServicing Standard. Subject to the foregoing, however, theSpecial Servicershall have full power and authority to do any and all things in connection therewith as are consistent with theServicing Standardand, consistent therewith, shall direct that theProperty Managermake, and theProperty Managershall make,Property Protection Advances, or payEmergency Property Expensesfrom funds on deposit in theCollection Account, necessary for the proper operation, management, maintenance and disposition of suchPropertyorREO Property,including:
(i) all insurance premiums due and payable in respect of suchPropertyorREO Property;
(ii) all real estate and personalpropertytaxes and assessments in respect of suchPropertyorREO Propertythat may result in the imposition of a lien thereon (includingtaxes or other amounts that could constitute liens prior to or on parity with the lien of the relatedMortgage);
(iii) anyGround Leaserents in respect of suchPropertyorREO Property; and
(iv) all costs and expenses necessary to maintain,lease, sell, protect, manage, operate and restore suchPropertyorREO Property.
Notwithstanding the foregoing, the Property Manager shall have no obligation to make any such Property Protection Advance if (as evidenced by an Officer’s Certificate delivered to the applicable Issuer and the Indenture Trustee) the Property Manager determines, in accordance with the Servicing Standard, that such payment would be a Nonrecoverable Advance. The Special Servicer shall submit requests to make Property Protection Advances to the Property Manager not more than once per month unless the Special Servicer determines on an emergency basis in accordance with the Servicing Standard that earlier payment is required to protect the interests of each Issuer and the Noteholders.
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(c) If title to anyREO Propertyis acquired by theSpecial Serviceron behalf of anIssuer, the deed or certificate of sale shall be issued to the applicableIssuerand theProperty Managershall deliver to the applicable Rating Agency, theIndenture Trusteeand theIssuersan amended Owned Property Schedule and MortgageLoanSchedule reflecting the removal of the relatedMortgage Loanfrom theCollateral Pooland the addition of any relatedPropertyto theCollateral Pool. Upon acquisition of suchREO Property, theSpecial Servicershall, if any amounts remain due and owing under the relatedMortgage Note, cause the applicableIssuerto execute and deliver to theIndenture Trusteeor theCollateral Agenta newMortgage(along with appropriateUCC Financing Statements), as applicable, in favor of theIndenture Trusteeor theCollateral Agentto secure the lien of theIndenture. TheSpecial Servicershall remit to theProperty Managerfor deposit in theCollection AccountorRelease Account, as applicable, upon receipt, allREO Revenues,Insurance ProceedsandLiquidation Proceedsreceived in respect of anREO Property.
Section 3.15 Release, Sale andExchangeofDefaulted AssetsandTerminated Lease Properties.
(a) Subject to any additional requirements set forth in any applicable Series Supplement, theProperty Manager, theSpecial Servicerand the applicableIssuermay release, sell or purchase, or permit the release, sale or purchase of, aMortgage LoanorPropertyonly on the terms and subject to the conditions set forth in this Section3.15or as otherwise expresslyprovidedin or contemplated by Section2.03and ArticleVIIor elsewhere in thisAgreementand theMaster Exchange Agreement, as applicable.
(b) TheSpecial Servicerand theProperty Manager, as applicable, shall exercise reasonable efforts, to the extent consistent with theServicing Standard, to enforce aDefaulted Asset,including, without limitation, the commencement and prosecution of any eviction or foreclosure proceedings, as to which no satisfactory arrangements can be made for collection of delinquent payments. In the event anyPropertybecomes aTerminated Lease Propertyor anIssuerobtains title to anREO Property, theSpecial Servicershall use reasonable efforts, consistent with theServicing Standard, to (i) with respect to suchTerminated Lease Property, attempt to induce anotherTenantto assume the obligations under the existingLease, with or without modification, (ii)leasetheTerminated Lease PropertyorREO Propertyunder a newLeaseon economically desirable terms or (iii) dispose of thePropertyorREO Property. The decision to enter into aleaseassumption or re-leasetheTerminated Lease PropertyorREO Propertyshall be made by theSpecial Servicerin accordance with theServicing Standard. TheSpecial Servicershall pay all costs and expenses (other than costs or expenses that would, if incurred, constitute aNonrecoverable Advance) incurred by it in connection with the foregoing as aProperty Protection Advance, and shall be entitled to reimbursement therefor asprovided herein. If theSpecial Serviceris successful in leasing theTerminated Lease PropertyorREO Property, a newAppraised Valuewill be obtained by theSpecial Servicerfor theTerminated Lease PropertyorREO Propertyin theSpecial Servicer’s discretion, and the costs of any such appraisal shall be aProperty Protection Advance. If theSpecial Servicer leasesanyTerminated Lease PropertyorREO Property, theProperty Managershall deliver to the applicable Rating Agency, theIndenture Trusteeand theIssuersan amendedOwned Property Schedulereflecting the addition of suchLeaseto theCollateral Pool.Monthly Lease Paymentson the modified or newLeasewill be applied pursuant to theIndenture.
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(c) If theLeasehas not been assumed or theTerminated Lease PropertyorREO Propertyhas not been leased to a newtenantand theTerminated Lease PropertyorREO Propertyhas not been released from the lien of theMortgagepursuant to Section3.15(h)below within twenty-four (24) months of becoming aTerminated Lease PropertyorREO Property, theSpecial Servicermay offer to sell theTerminated Lease PropertyorREO Propertypursuant to this Section3.15, for a fair price, free and clear of the lien of the relatedMortgage, if and when theSpecial Servicerdetermines, consistent with theServicing Standard, that such a sale would be in the best interests of theNoteholders. NoInterested Personshall be obligated to submit a bid to purchase any suchTerminated Lease PropertyorREO Property. TheLiquidation Proceedsshall be deposited into theCollection Accountand applied as set forthherein.
(d) If and when theSpecial Servicerdeems it necessary and prudent for purposes of establishing a fair price for anyTerminated Lease PropertyorREO Propertyfor purposes of conducting a sale of suchTerminated Lease PropertyorREO Propertypursuant to subsection(c)above, theSpecial Serviceris authorized to have an appraisal conducted by anIndependent MAI-designatedappraiser or other expert (the cost of which appraisal shall constitute aProperty Protection Advance).
(e) Whether any cash bid constitutes a fair price for anyTerminated Lease PropertyorREO Propertyfor purposes of Section3.15(c)shall be determined by theSpecial Serviceror, if such cash bid is from anInterested Person, by theIndenture Trusteeor, if the expectedLiquidation Proceedswith respect to suchTerminated Lease PropertyorREO Propertywould be insufficient to provide reimbursement for all unreimbursedAdvancesmade with respect to the subjectTerminated Lease PropertyorREO Property, together with any relatedAdvance Interestthereon, by theProperty Manager. In determining whether any bid received from anInterested Personrepresents a fair price for anyTerminated Lease PropertyorREO Property, theIndenture Trusteeshall be supplied with and may conclusively rely on the most recent appraisal conducted in accordance with Section3.15(d)within the preceding 12-month period or, in the absence of any such appraisal, on a narrative appraisal prepared by anIndependent MAI-designatedappraiser or other expert retained by theSpecial Servicer, atIssuer’s cost or as aProperty Protection Advance. Such appraiser shall be selected by theSpecial Servicerif theSpecial Serviceris not bidding with respect to aTerminated Lease PropertyorREO Propertyand shall be selected by theProperty Managerif theSpecial Serviceris bidding,providedthat if theProperty Managerand theSpecial Servicerare the samePersonand suchPersonis bidding, then such appraiser shall be selected by theIndenture Trustee. In determining whether any bid constitutes a fair price for any suchTerminated Lease PropertyorREO Property, theSpecial Servicer, theIndenture Trustee(if applicable) or theProperty Manager, as applicable, shall take into account, among other factors, the occupancy status and physical condition of theTerminated Lease PropertyorREO Property, the state of the local economy, and, with respect toTerminated Lease Properties, the period and amount of any delinquency on the effectedLease. In connection therewith, theSpecial Servicermay charge prospective bidders fees that approximate theSpecial Servicer’s actual costs in the preparation and delivery of information pertaining to such sales or evaluating bids without obligation to deposit such amounts into theCollection Account.
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(f) TheSpecial Servicershall act on behalf of the applicableIssuerand theIndenture Trusteein negotiating and taking any other action necessary or appropriate in connection with the sale of anyTerminated Lease PropertyorREO Propertyand the collection of all amounts payable in connection therewith. Any sale of aTerminated Lease PropertyorREO Propertyshall be free and clear of the lien of theIndentureand shall be final and without recourse to the applicableIssueror theIndenture Trustee. If such sale is consummated in accordance with the terms of thisAgreement, none of theProperty Manager, theSpecial Serviceror theIndenture Trusteeshall have any liability to anyIssueror anyNoteholderwith respect to the purchase price therefor accepted by theProperty Manager, theSpecial Serviceror theIndenture Trustee, as the case may be.
(g) TheSpecial Servicershall accept the first (and, if multiple bids are received contemporaneously, highest) cash bid received from anyPersonthat constitutes a fair price for suchTerminated Lease PropertyorREO Property. Notwithstanding the foregoing, theSpecial Servicershall not be obligated to accept the highest cash bid if theSpecial Servicerdetermines, in accordance with theServicing Standard, that rejection of such bid would be in the best interests of theNoteholders, and theSpecial Servicermay accept a lower cash bid if it determines, in accordance with theServicing Standard, that acceptance of such bid would be in the best interests of theNoteholders(for example, if the prospective buyer making the lower bid is more likely to perform its obligations or the terms offered by the prospective buyer making the lower bid are more favorable).
(h) At any time that aTerminated Lease PropertyorREO Propertyhas not already been sold or leased pursuant to the termshereof, the relatedIssuermay at its option (i) release the lien of theIndentureand the relatedMortgagefrom suchTerminated Lease PropertyorREO Propertypursuant to Section7.04or (ii)exchangeone or moreQualified Substitute PropertiesorQualified Substitute Hybrid Leases, as applicable, for the subjectTerminated Lease PropertyorREO PropertyorQualified Substitute Loansfor the subjectMortgage Loanpursuant to Section7.01.
(i) TheSpecial Servicershall, and is hereby authorized and empowered by theIssuersand theIndenture Trusteeto, prepare, execute and deliver in its own name, on behalf of theIssuersand theIndenture Trusteeor any of them, the endorsements, assignments and other documents necessary to effectuate a sale of aTerminated Lease PropertyorREO Propertypursuant to this Section3.15, and theIssuersand theIndenture Trusteeshall execute and deliver any limited powers of attorney substantially in the form ofExhibit D necessary to permit theSpecial Servicerto do so;provided,however, that none of theIssuers, theIssuer Membersor theIndenture Trusteeshall be held liable for any misuse of any such power of attorney by theSpecial Servicerand theSpecial Servicerhereby agrees to indemnify theIssuers, theIssuer Membersand theIndenture Trusteeagainst, and hold theIssuers, theManagersand theIndenture Trusteeharmless from, any loss or liability arising from any misuse in the exercise of such power of attorney.
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(j) TheSpecial Servicershall give the applicableRating Agencies, the applicableIssuer, theIndenture Trusteeand theProperty Managerprompt written notice of its intention to sell anyTerminated Lease PropertyorREO Propertypursuant to this Section3.15, in any event no more than two (2)Business Daysfollowing such sale.
(k) For the avoidance of doubt, if theSpecial Servicerdetermines that, with respect to aDefaulted Asset, aleaseassumption with modification, or a re-lease, would maximize revenue received by the relatedIssuer, and the terms of such new or modifiedleasewillincluderent that is 60% or less than the rent previously received on theDefaulted Asset, then theSpecial Servicershall enter into any suchleasefor no more than 10 years, so long as theSpecial Servicerdetermines that entering into suchleaseterm would be in accordance with theServicing Standardand in the best interests of theNoteholders.
Section 3.16 Renewals, Modifications, Waivers,Amendments; Consents and Other Matters.
(a) The applicableIssuerand theProperty Managermay enter into renewals ofLeasesand newLeasesthat provide for rental rates comparable to existing local market rates and are on commercially reasonable terms. AllLeasesexecuted after theInitial Closing Dateshall provide that they are subordinate to theMortgageencumbering the applicablePropertyand that the lessee agrees to attorn to theIndenture Trusteeor any purchaser at a sale by foreclosure or power of sale. TheIndenture Trusteeshall, at the request of the relatedIssueror theProperty Manager, enter into anSNDAwith theTenantunder aLeaseto the extent suchLeasedoes not contain provisions subordinating suchLeaseto the lien of the relatedMortgageand requiring the relatedTenantto attorn and recognize the holders of the beneficial interests under suchMortgageor such other party as may acquire title to the relatedPropertyby foreclosure, deed-in-lieu thereof or otherwise. TheProperty Managershall observe and perform the obligations imposed upon the lessor under theLeasesin accordance with theServicing Standard. The applicableIssuershall execute and deliver, or cause to be executed and delivered, at the request of any party hereto all such further assurances, confirmations and assignments in connection with theLeasesas may be required by such party.
(b) Except as specifically set forthherein, neither the applicableIssuernor theProperty Manager(i) shall amend or modify in any material respect, or terminate (other than in connection with a bona fide default by theTenantorBorrowerthereunder beyond any applicable notice or grace period or with respect toLease Transfer Properties), anyLeaseorMortgage Loanother than in accordance with theServicing Standard, (ii) unless permitted by the relatedLeaseorMortgage Loanand remitted and initiated thereunder by the relatedTenantorBorrower, shall not collect any rents or principal or interest more than one (1) month inadvance(other than security deposits), and (iii) shall not execute any other assignment of lessor’s interest in theLeasesor the rents or the relatedIssuer’s interest in theMortgage Loan(except as contemplated by theTransaction Documentsor theLeasesorMortgage Loans, as applicable). For the purpose of this section, without limiting the generality of the foregoing, any extension of the term of aLeaseorMortgage Loanthat does not reduce the rent or principal or interest, payable thereunder shall be deemed not to be material and anyamendmentor modification of aLeaseorMortgage Loanthat reduces the term thereof or the rent, or principal or interest, payable thereunder shall be deemed to be material.
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(c) Notwithstanding the foregoing:
(i) The applicableIssuer, theProperty Manager, theBack-Up Managerand theSpecial Servicer, each may, consistent with theServicing Standard, agree to any modification, waiver oramendmentof any term of, forgive any payment on, and permit the release of theTenantorBorroweron or anyLease GuarantororLoan Guarantor, and approve of the assignment of aTenant’s interest in itsLeaseorBorrower’s interest in itsMortgage Loanor the sublease of all or a portion of aProperty(each, an “Amendment”) without the consent of the applicableIssuer, theIndenture Trustee, theBack-Up ManagerorNoteholderor any otherPerson,providedthat theProperty Managercertifies to theIndenture Trusteethat:
(A) suchAmendmentis entered into for a commercially reasonable purpose in an arm’s-length transaction on market terms; and
(B) subject to the provisions below, suchAmendmentshall not cause theMonthly DSCRto be less than 1.35; and
(C) in the reasonable judgment of the applicableIssuer, theProperty Managerand theSpecial Servicer, as the case may be, suchAmendmentis in the best interest of theNoteholdersand (other than in connection with aTenantorBorrowerdefault or with respect toLease Transfer Properties) will not have an adverse effect on theCollateral Valueof the relatedPropertyorMortgage Loan.
(ii) Any Amendment that would cause the Monthly DSCR to fall below 1.35 shall require the approval of the Property Manager, if the Property Manager is not also the Special Servicer, in accordance with the Servicing Standard after notice thereof to the Indenture Trustee and Back-Up Manager. In the event that Property Manager shall fail to respond to any request for approval hereunder within such ten (10) Business Day period, the applicable Issuer may send a second notice, which shall state in capitalized, bold faced 16 point type at the top of the first page that: “If the Property Manager fails to approve or disapprove the proposed Amendment within ten (10) Business Days, the Amendment shall be deemed approved”, and if the Property Manager shall fail to respond to such second request within such ten (10) Business Day period, the Amendment shall be deemed approved by the Property Manager.
(iii) AnyAmendmentin connection with a bona fide default by theTenantorBorrowershall not be subject to the foregoing terms of this Section3.16. Regardless of whether anyAmendmentis material or not, theProperty Managerwill give theIndenture Trusteeprompt written notice thereof and shall indicate whether such action is being taken pursuant to the preceding sentence and upon request will deliver a copy of any documents executed in connection therewith to theRating Agenciesand theIndenture Trustee.
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(iv) To the extent that the applicableIssueris not entitled, under the terms of anyLeaseorMortgage Loan, to withhold its consent to an assignment, subletting or assumption thereunder, the granting of such consent shall not be restricted by this Section3.16.
(v) The limitations, conditions and restrictions set forth in Section3.16(c)(i)above shall not apply to anyLeaseorMortgage Loanwith respect to which there exists a bona fide default by the relatedTenantorBorrower, anyAmendmentor other action with respect to anyLeaseorMortgage Loanthat is required under the terms of suchLeaseorMortgage Loanor that is solely within the control of the relatedTenantorBorrower.
(vi) Neither theProperty Managernor theSpecial Servicershall be required to oppose the confirmation of a plan in anybankruptcy or similar proceeding involvingaTenantorBorrowerif in their reasonable and good faith judgment such opposition would not ultimately prevent the confirmation of such plan or one substantially similar.
(vii) The limitations, conditions and restrictions set forth in Section3.16(c)(i)above shall not apply to theProperty Manager’s or theSpecial Servicer’s ability to terminate aLeaseorMortgage Loanin accordance with the terms thereof.
(d) TheIssuers, theProperty Managerand theSpecial Servicershall have no liability to theIssuers, theIndenture Trustee, theNoteholdersor to any otherPersonif its analysis and determination that theAmendmentor other action contemplated by Section3.16(c)would not materially reduce the likelihood of timely payment of amounts due thereon, or that suchAmendmentor other action is reasonably likely to produce a greater recovery to the relatedIssueron a present value basis than would liquidation, should prove to be wrong or incorrect, so long as the analysis and determination were made on a reasonable basis in accordance with theServicing Standardin good faith by the applicableIssuer, theProperty Manageror theSpecial Servicer, as the case may be.
(e) TheProperty Managerand theSpecial Servicereach may, as a condition to its granting any request by aTenantorBorrowerfor consent, modification, waiver or indulgence or any other matter or thing, the granting of which is within theProperty Manager’s orSpecial Servicer’s, as the case may be, discretion pursuant to the terms of the instruments evidencing or securing the relatedLeaseorMortgage Loanand is permitted by the terms of thisAgreement, require that suchTenantorBorrower, to the extent permitted by the subjectLeaseorMortgage Loan, or, if not so permitted, the relatedIssuer, pay to theProperty ManagerorSpecial Servicer, as applicable, asadditional servicing compensationa reasonable or customary fee for the additional services performed in connection with such request, together with any related costs and expenses incurred by it.
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(f) All modifications, waivers,amendmentsand other actions entered into or taken in respect of aLeaseorMortgage Loanpursuant to this Section3.16shall be in writing. Each of theProperty Managerand theSpecial Servicershall notify the other such party and eachIssuer, theBack-Up Manager, the applicableRating Agenciesand theCustodian, in writing, of any modification, waiver,amendmentor other action entered into or taken in respect of anyLeaseorMortgage Loanpursuant to this Section3.16and the date thereof, and shall deliver to theCustodianfor deposit in the relatedLease FileorLoan Filean original counterpart of the agreements relating to such modification, waiver,amendmentor other action, promptly (and in any event within 10Business Days) following the execution thereof. In addition, following anyAmendmentor other action agreed to by theProperty Manageror theSpecial Servicerpursuant to Section3.16(c)above, theProperty Manageror theSpecial Servicer, as the case may be, shall deliver to eachIssuer, to theIndenture Trusteeand, in the case of theSpecial Servicer, to theProperty Manager, anOfficer’s Certificatecertifying compliance with such subsection (c).
Section 3.17 Transfer of Servicing BetweenProperty ManagerandSpecial Servicer; Record Keeping.
(a) Upon determining that aServicing Transfer Eventhas occurred with respect to anyLeaseorMortgage Loanand if theProperty Manageris not also theSpecial Servicer, theProperty Managershall immediately give notice thereof, and shall deliver the relatedServicing File, to theSpecial Servicer, theIndenture Trusteeand theBack-Up Managerand shall provide theSpecial Servicerwith all information, documents (or copies thereof) and records (includingrecords stored electronically on computer tapes, magnetic discs and the like) relating to suchLeaseorMortgage Loanand reasonably requested by theSpecial Servicerto the extent inProperty Manager’s possession, to enable it to assume its functionshereunderwith respect thereto without acting through aSub-Manager. TheProperty Managershall use its best efforts to comply with the preceding sentence within five (5)Business Daysof its receipt ofSpecial Servicer’s request following the occurrence of each relatedServicing Transfer Event.
Upon determining that a Specially Managed Unit has become a Corrected Unit and if the Property Manager is not also the Special Servicer, the Special Servicer shall immediately give notice thereof, and shall return the related Servicing File, to the Property Manager and, upon giving such notice and returning such Servicing File, to the Property Manager, (i) the Special Servicer’s obligation to service such Lease or Mortgage Loan shall terminate, (ii) the Special Servicer’s right to receive the Special Servicing Fee with respect to such Lease or Mortgage Loan, shall terminate and (iii) the obligations of the Property Manager to service and administer such Lease or Mortgage Loan shall resume, in each case, effective as of the first day of the following calendar month.
(b) In servicing anySpecially Managed Unit, theSpecial Servicershall provide to theCustodian, for the benefit of theIndenture Trustee, originals of documents included within the definition of “Lease File” for inclusion in the relatedLease Fileand “Loan File” for inclusion in the relatedLoan File(with a copy of each such original to theProperty Manager), and copies of any additional relatedLease and Mortgage Loaninformation,includingcorrespondence with the relatedTenantorBorrower.
(c) Notwithstanding anything in thisAgreementto the contrary, in the event that theProperty Managerand theSpecial Servicerare the samePerson, all notices, certificates, information and consents required to be given by theProperty Managerto theSpecial Serviceror vice versa shall be deemed to be given without the necessity of any action on suchPerson’s part.
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Section 3.18 Sub-Management Agreements.
(a) TheProperty Managerand theSpecial Servicermay enter intoSub-Management Agreementsto provide for the performance by third parties of any or all of their respective obligationshereunder;provided, that, in each case, theSub-Management Agreement: (i) is consistent with thisAgreementin all material respects and requires theSub-Managerto comply with all of the applicable conditions of thisAgreement;(ii)provides that if theProperty Manageror theSpecial Servicer, as the case may be, shall for any reason no longer act in such capacityhereunder(includingby reason of aServicer Replacement Event), theBack-Up Manager(or if theBack-Up Manageris then terminated and another successor has not been named, theIndenture Trustee) may thereupon assume all of the rights and, except to the extent they arose prior to the date of assumption, obligations of theProperty Manageror theSpecial Servicer, as the case may be, under suchagreementor, alternatively, may terminate suchSub-Management Agreementwithout cause and without payment of any penalty or termination fee; (iii) provides that eachIssuer, theBack-Up Manager, theIndenture Trustee, the other parties hereto and, as and to the extentprovided herein, the third party beneficiarieshereofshall be third party beneficiaries under suchagreement, but that (except to the extent theIndenture Trustee,Back-Up Manageror their respective designees assume the obligations of theProperty Manageror theSpecial Servicer, as the case may be, thereunder as contemplated by the immediately preceding clause(ii)and, in such case, only from the date of such assumption) none of anyIssuer, theIndenture Trustee, theBack-Up Manager, any other party hereto, any successorProperty ManagerorSpecial Servicer, as the case may be, anyNoteholderor holder ofIssuer Interestsor any other third party beneficiaryhereofshall have any duties under suchagreementor any liabilities arising therefrom; (iv) permits any purchaser of aPropertyorMortgage Loanpursuant to thisAgreementto terminate suchagreementwith respect to such purchasedPropertyorMortgage Loanat its option and without penalty; (v) does not permit theSub-Managerto enter into or consent to any modification, waiver oramendmentor otherwise take any action on behalf of theProperty ManagerorSpecial Servicer, as the case may be, contemplated by Section3.16 hereofwithout the written consent of theProperty ManagerorSpecial Servicer, as the case may be; and (vi) does not permit theSub-Managerany rights of indemnification that may be satisfied out of theCollateral. In addition, eachSub-Management Agreemententered into by theProperty Managershall provide that suchagreementshall terminate with respect to anyLeaseandProperty, andMortgage Loanserviced thereunder at the time suchPropertyorMortgage Loanbecomes aSpecially Managed Unit, and eachSub-Management Agreemententered into by theSpecial Servicershall relate only toSpecially Managed Unitsand shall terminate with respect to any suchPropertyorMortgage Loanthat ceases to be aSpecially Managed Unit.
The Property Manager and the Special Servicer shall each deliver to each Issuer and the Indenture Trustee copies of all Sub-Management Agreements, and any amendments thereto and modifications thereof, entered into by it promptly upon its execution and delivery of such documents. References in this Agreement to actions taken or to be taken by the Property Manager or the Special Servicer include actions taken or to be taken by a Sub-Manager on behalf of the Property Manager or the Special Servicer, as the case may be, and in connection therewith, all amounts advanced by any Sub-Manager to satisfy the obligations of the Property Manager or Special Servicer hereunder to make Advances shall be deemed to have been advanced by the Property Manager or Special Servicer out of its own funds and, accordingly, such Advances shall be recoverable by such Sub-Manager in the same manner and out of the same funds as if such Sub-Manager were the Property Manager or Special Servicer. For so long as they are outstanding, Advances shall accrue Advance Interest in accordance with Sections 3.09(e), such interest to be allocable between the Property Manager and such Sub-Manager as they may agree. For purposes of this Agreement, the Property Manager and the Special Servicer each shall be deemed to have received any payment, and shall be obligated to handle such payment in accordance with the terms of this Agreement, when a Sub-Manager retained by it receives such payment. The Property Manager and the Special Servicer each shall notify the other, each Issuer, the Indenture Trustee and the Back-Up Manager in writing promptly of the appointment by it of any Sub-Manager.
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(b) EachSub-Managershall be authorized to transact business in the state or states in which thePropertiesorMortgage Loansit is to service are situated, if and to the extent required by applicable law.
(c) TheProperty Managerand theSpecial Servicer, for the benefit of eachIssuer, shall (at no expense to anIssueror theIndenture Trustee) monitor the performance and enforce the obligations of their respectiveSub-Managersunder the relatedSub-Management Agreements. Such enforcement,includingthe legal prosecution of claims, termination ofSub-Management Agreementsin accordance with their respective terms and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as theProperty Manageror theSpecial Servicer, as applicable, in itsgood faith and reasonable judgment, wouldrequire were it the owner of thePropertiesandMortgage Loans. Subject to the terms of the relatedSub-Management Agreement, theProperty Managerand theSpecial Servicershall each have the right to remove aSub-Managerretained by it at any time it considers such removal to be in the best interests of eachIssuer.
(d) If theProperty Manageror theSpecial Servicerceases to serve as such under thisAgreementfor any reason (includingby reason of aServicer Replacement Event) and no successorProperty ManagerorSpecial Servicer, as the case may be, has succeeded to its rights and assumed its obligationshereunderor, in the case of theSpecial Servicer, no replacementSpecial Servicerhas been designated pursuant to Section5.06, so long as theBack-Up Manageris appointed asProperty ManagerandSpecial Servicer, as applicable, pursuant to Section6.02, theBack-Up Managershall succeed to the rights and assume the obligations of theProperty Manageror theSpecial Servicerunder anySub-Management Agreement, unless theBack-Up Manageror theIndenture Trusteeelects to terminate any suchSub-Management Agreementin accordance with its terms. In any event, if aSub-Management Agreementis to be assumed by theBack-Up Manager, then theProperty Manageror theSpecial Servicer, as applicable, at its expense shall, upon request of theBack-Up Manageror theIndenture Trustee, deliver to theBack-Up Managerall documents and records relating to suchSub-Management Agreementand thePropertiesand theMortgage Loansthen being serviced thereunder and an accounting of amounts collected and held on behalf of it thereunder, and otherwise use its commercially reasonable efforts to effect the orderly and efficient transfer of theSub-Management Agreementto the assuming party.
(e) Notwithstanding anySub-Management Agreement, theProperty Managerand theSpecial Servicershall remain obligated and liable to eachIssuer, theNoteholders, theIndenture Trusteeand each other for the performance of their respective obligations and duties under thisAgreementin accordance with the provisionshereofto the same extent and under the same terms and conditions as if each alone were servicing and administering theMortgage Loans, thePropertiesandLeasesfor which it is responsible.
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(f) Any fees paid by theProperty Manageror theSpecial Servicer, as applicable, to anySub-Managerpursuant to anySub-Management Agreementshall be paid solely from theProperty Management Feeor theSpecial Servicing Fee, as applicable, and in no event shall suchSub-Managerhave any claim against theCollateralwith respect to such fees.
Section 3.19 Casualty.
(a) If anyPropertyorImprovementsin connection with aHybrid Leaseshall be materially damaged or destroyed, in whole or in part, by fire or other casualty (an “Insured Casualty”), the applicableIssuershall give prompt notice thereof to theIndenture Trusteeand theProperty Manager. Following the occurrence of anInsured Casualty, the applicableIssuershall promptly (or shall promptly cause theTenantorBorrowerto) proceed to restore, repair, replace or rebuild the same to be of at least equal value and of substantially the same character as prior to such damage or destruction, all to be effected in accordance with applicable law;provided that if theProperty Managershall not direct theIndenture Trusteeto makeany amounts received in connection with such Insured Casualtyavailable to reimburse the applicableIssuerfor the costs of suchrestoration, repair, replacement or rebuilding, suchIssuershall not be required to perform suchrestoration, repair, replacement or rebuilding,provided,further, that suchIssuershall take at its own expense such steps as may be reasonably required to put and maintain theImprovementsin a safe and secure condition. The expenses incurred by theProperty Managerin the adjustment and collection of any amounts received in connection with anInsured Casualtyshall be deemed aProperty Protection Advanceand be secured hereby and shall be reimbursed by the applicableIssuerto theProperty Managerpursuant to the terms of theIndenture.
(b) In case of loss or damages to aPropertynot securing aMortgage LoanorImprovementsin connection with aHybrid Leasecovered by any of theProperty Insurance Policies, the following provisions shall apply:
(i) In the event of anInsured Casualtythat does not exceed the greater of (a) $100,000.00 or (b)five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connectionwith aHybrid Lease, the applicableIssuermay settle and adjust any claim without the consent of theProperty Managerand agree with the insurance company or companies on the amount to be paid upon the loss. In such case, suchIssueris hereby authorized to collect and to distribute such amounts distributed in connection with anInsured Casualtyin accordance with the terms and provisions of the relatedLease.
(ii) In the event anInsured Casualtyshall exceed the greater of (a) $100,000.00 or (b)five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connectionwith aHybrid Lease, then and in that event, the applicableIssuermay settle and adjust any claim without the consent of theProperty Managerand agree with the insurance company or companies on the amount to be paid on the loss and shall immediately deposit such amounts received in connection with anInsured Casualtyinto the Casualty andCondemnation Sub-Account, in accordance with the terms of theIndentureand thisAgreement.
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(iii) In the event of anInsured Casualtywhere the loss is in an aggregate amount more than the greater of (a) $100,000.00 or (b)five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connectionwith aHybrid Lease, and if, in the reasonable judgment of theProperty ManagerthePropertycan be restored within twenty-four (24) months to an economic unit not materially less valuable (includingan assessment of the impact of the termination of anyLeasesdue to suchInsured Casualty) and not materially less useful than the same was prior to theInsured Casualty, then, if noEvent of Defaultunder theIndentureshall have occurred and be then continuing,the amounts received in connection with such an Insured Casualty(after reimbursement of any reasonable expenses incurred by theProperty Manager) shall be collected by theProperty Manager, and promptly delivered to and deposited byIndenture Trusteeinto theCasualty and Condemnation Proceeds Sub-Account, and shall be distributed to the applicableIssuerto reimburse suchIssueror the subjectTenantfor the cost of restoring, repairing, replacing or rebuilding thePropertyorImprovementsin connection with aHybrid Leaseor part thereof subject to theInsured Casualty, in the manner set forth below,provided, theIndenture Trusteemakesthe amounts received in connection with such an Insured Casualtyavailable for the same, suchIssuerhereby covenants and agrees to commence and diligently prosecute, or cause the applicableTenantto commence and diligently prosecute, such restoring, repairing, replacing or rebuilding;provided, that suchIssueror the subjectTenantshall pay all costs (and if required by theProperty Manager, suchIssuershall deposit the total thereof with theIndenture Trusteeinadvance) of such restoring, repairing, replacing or rebuilding in excess of the net proceeds made available pursuant to the termshereof.
(iv) Subject to clauses(i)-(iii)in this Section3.19(b), anIssuermay elect for proceeds from anInsured CasualtyorCondemnationto be (A) applied to the payment of theNotes without Make Whole Amount, (B) applied to reimburse the applicableIssueror the subjectTenantfor the cost of restoring, repairing, replacing or rebuilding thePropertyorImprovementsin connection with aHybrid Leaseor part thereof subject to theInsured Casualty, in the manner set forth below or (C)providedthat such amounts are greater than or equal to theCollateral Valueof the relatedProperty, deposited into theRelease Accountto be used to acquireQualified Substitute Properties,Qualified Substitute Hybrid LeasesorQualified Substitute Loans, as applicable.
(v) In the event the applicableIssueris entitled to reimbursement out of the amounts held by theIndenture Trustee, such amounts shall be disbursed from time to time by theIndenture Trustee, at the written direction of theProperty Manager, upon theProperty Managerbeing furnished with (1) evidence satisfactory to it of the estimated cost of completion of therestoration, repair, replacement and rebuilding, (2) funds or, at theProperty Manager’s option, assurances reasonably satisfactory to theProperty Managerthat such funds are available, sufficient in addition to the proceeds to complete the proposedrestoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats ofsurveyand such other reasonable evidences of cost, payment and performance as theProperty Managermay reasonably require and approve. No payment made prior to the final completion of therestoration, repair, replacement and rebuildingshall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than proceeds shall be disbursed prior to disbursement of such proceeds; and at all times, the undisbursed balance of such proceeds remaining in the hands of theIndenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of theProperty Managerby or on behalf of suchIssuerfor that purpose, shall be at least sufficient in the reasonable judgment of theProperty Managerto pay for the cost of completion of therestoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of proceeds held by theIndenture Trusteeafter payment of such costs ofrestoration, repair, replacement or rebuildingshall be transferred to theCollection AccountasInsurance Proceedsand be applied to the payment of theNotesasprovidedin subparagraph (iii)(A) above.
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(vi) Notwithstanding anything to the contrary containedherein, if anyPermitted Leaseshall obligate theTenantthereunder to repair, restore or rebuild the affectedPropertyafter the occurrence of anInsured Casualty, the applicableIssuer, at the direction of theProperty Manager, shall deposit the proceeds of anInsured Casualtyin the Casualty andCondemnation Sub-AccountandIndenture Trusteeshall make such proceeds available, subject only to the conditions set forth in suchPermitted Leaseand the conditions set forth in the first sentence of subparagraph(iv)above.
(c) Notwithstanding anything containedhereinto the contrary (includingin Section3.20below), in the case of loss or damages covered by any of theProperty Insurance Policieswith respect to aPropertysecuring aMortgage Loanor anyCondemnationwith respect to any suchProperty, the related proceeds shall be applied in accordance with the relatedLoan Documents.
Section 3.20 Condemnation.
(a) Each applicableIssuershall promptly give theProperty Managerwritten notice of the actual or threatened commencement of any condemnation or eminent domain proceeding of whichIssuerreceives notice (a “Condemnation”) and shall deliver to theProperty Managercopies of any and all papers served upon suchIssuerin connection with suchCondemnation. Following the occurrence of aCondemnation, the applicableIssuershall, or shall promptly cause the relatedTenantorBorrowerto, proceed to restore, repair, replace or rebuild the same to the extent practicable to be of at least equal value and of substantially the same character as prior to suchCondemnation, all to be effected in accordance with applicable law;providedthat if theProperty Managershall not makethe amounts received in connection with such Condemnationreceived by theIndenture Trusteeavailable to reimburse suchIssuerorTenantorBorrowerfor the costs of suchrestoration, repair, replacement or rebuilding, suchIssuershall not be required to perform suchrestoration, repair, replacement or rebuilding;providedfurther that suchIssuershall take at its own expense such steps as may be reasonably required to put and maintain theImprovementsin a safe and secure condition.
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(b) In the event of aCondemnationwith respect to aPropertynot securing aMortgage LoanorImprovementsin connection with aHybrid Lease, the proceeds for which will not exceed the greater of (a) $100,000, or (b)five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connectionwith aHybrid Lease, the applicableIssuermay settle and adjust any claim and release the lien of theTransaction Documentsfrom the affected portion of the applicablePropertyorImprovements, as applicable, on behalf of theIndenture Trusteewithout the consent of theProperty Managerand agree with the governmental authority having jurisdiction on the amount to be paid in connection with suchCondemnation. In such case, the applicableIssueris hereby authorized to collect and disbursethe amounts received in connection with such Condemnation. In the eventthe amounts received in connection with a Condemnationshall exceed the greater of (i) $100,000, or (ii)five percent (5%) of the Fair Market Value of the applicable Property or Improvements in connectionwith aHybrid Lease, then in such event, the applicableIssuermay settle and adjust any claim without the consent of theProperty Managerand agree with the condemning authority on the amount to be paid in connection with suchCondemnation, andthe amounts received in connection with such a Condemnationshall be due and payable solely to theIndenture Trusteeand held in escrow by theIndenture Trusteein the Casualty andCondemnation Sub-Account, and disbursed by theIndenture Trustee, at the written direction of theProperty Manager, in accordance with the terms of thisAgreement. Notwithstanding anyCondemnationby any public or quasi-public authority (including, without limitation, any transfer made in lieu of or in anticipation of such aCondemnation), the applicableIssuershall continue to pay theNotesat the time and in the mannerprovidedfor in theNotes, in theIndentureand the other Transaction Documents and theNotesshall not be reduced unless and until the amount shall have been actually received and applied by theIndenture Trusteeto expenses of theProperty Managerin collecting the amount and to discharge of theNotes. TheIndenture Trusteeshall not be limited to the interest paid on the amount paid in connection with suchCondemnationby the condemning authority but shall be entitled to receive out ofthe amounts received in connection with such Condemnationinterest at the applicable NoteRates.
(c) In the event of anyCondemnationwith respect to aPropertynot securing aMortgage LoanorImprovementsin connection with aHybrid Leasewhere the amount to be paid in connection therewith are in an aggregate amount that shall exceed the greater of (i) $100,000.00, or (ii)five percent (5%) of the Fair Market Value of the applicable Properties or Improvements in connectionwithHybrid Leases, and if, in the reasonable judgment of the applicableIssuer, the relatedPropertycan be restored within twenty-four (24) months to an economic unit not materially less valuable (includingan assessment of the impact of the termination of anyLeasesdue to suchCondemnation) and not materially less useful than the same was prior to theCondemnation, then, if noEvent of Defaultunder theIndentureshall have occurred and be then continuing, the amount to be paid in connection with suchCondemnation(after reimbursement of any expenses incurred by theProperty Manager) shall be collected by theIndenture Trusteeand deposited in the Casualty andCondemnation Sub-Account, and shall be applied to reimburse suchIssueror theTenantfor the subjectPropertyfor the cost of restoring, repairing, replacing or rebuilding thePropertyorImprovementsin connection with aHybrid Leaseor part thereof subject toCondemnation, in the manner set forth below. Such applicableIssuerhereby covenants and agrees to commence and diligently prosecute, or cause the applicableTenantto commence and diligently prosecute, such restoring, repairing, replacing or rebuilding;provided, that suchIssueror the subjectTenantshall pay all costs (and if required by theProperty Manager, suchIssuershall deposit the total thereof with theIndenture Trusteeinadvance) of such restoring, repairing, replacing or rebuilding in excess of the amount made available pursuant to the termshereof.
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(d) Except as otherwiseprovided herein, any amount received in connection with anyCondemnationwith respect to anyPropertyorImprovementsin connection with aHybrid Leaseshall, at the option of suchIssuer, be(i)deposited in theCollection AccountasCondemnation Proceedsand applied to the payment of theNotes without Make Whole Amount, (ii) applied to the reimbursement of suchIssueror the subjectTenantorBorrowerfor the cost of restoring, repairing, replacing or rebuilding thePropertyorImprovementsin connection with aHybrid Leaseor part thereof subject to theCondemnation, in the manner set forth below or (iii)providedthat such amounts are greater than or equal to theCollateral Valueof the relatedPropertyorMortgage Loan, deposited into theRelease Accountto be used to acquireQualified Substitute Properties,Qualified Substitute Hybrid LeasesorQualified Substitute Loans, as applicable. If thePropertyorImprovementsin connection with aHybrid Leaseis sold through foreclosure prior to the receipt by theIndenture Trusteeof the proceeds from suchCondemnation, theIndenture Trusteeshall have the right, if adeficiencyjudgment on theNotesshall be recoverable or shall have been sought, recovered or denied, to receive all or a portion of said proceeds sufficient to pay theNotes.
(e) In the event anIssueris entitled to reimbursement out ofthe amounts received in connection with a Condemnationreceived by theIndenture Trustee, such amounts shall be disbursed from time to time by theIndenture Trusteefrom the Casualty andCondemnation Sub-Account, at the written direction of theProperty Manager, upon theProperty Managerbeing furnished with (1) evidence satisfactory to it of the estimated cost of completion of therestoration, repair, replacement and rebuildingresulting from suchCondemnation, (2) funds or, at theProperty Manager’s option, assurances reasonably satisfactory to theProperty Managerthat such funds are available, sufficient in addition tothe amounts received in connection with a Condemnationto complete the proposedrestoration, repair, replacement and rebuilding, and (3) such architect’s certificates, waivers of lien, contractor’s sworn statements, title insurance endorsements, bonds, plats ofsurveyand such other evidences of costs, payment and performance as theProperty Managermay reasonably require and approve. No payment made prior to the final completion of therestoration, repair, replacement and rebuildingshall exceed ninety percent (90%) of the value of the work performed from time to time; funds other than amounts received in connection with aCondemnationshall be disbursed prior to disbursement of such amounts; and at all times, the undisbursed balance of such amounts remaining in hands of theIndenture Trustee, together with funds deposited for that purpose or irrevocably committed to the satisfaction of theProperty Managerby or on behalf of suchIssuerfor that purpose, shall be at least sufficient in the reasonable judgment of theProperty Managerto pay for the costs of completion of therestoration, repair, replacement or rebuilding, free and clear of all liens or claims for lien. Any surplus which may remain out of the amount received in connection with aCondemnationafter payment of such costs ofrestoration, repair, replacement or rebuildingmay, at the option of suchIssuer, be transferred to theCollection AccountasCondemnation Proceedsand applied to payment of theNotesasprovidedin subparagraph(d)(i)above.
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(f) Notwithstanding anything to the contrary containedherein, if anyPermitted Leaseshall obligate theTenantthereunder to repair, restore or rebuild the affectedPropertyafter the occurrence of aCondemnation, theIndenture Trustee, at the written direction of theProperty Manager, shall makethe amounts received in connection with such Condemnationavailable, subject only to the conditions set forth in suchPermitted Leaseand the conditions set forth in the first sentence of Section3.20(e)above.
Section 3.21 Separateness Provisions.
(a) So long asSTORE Capitalor anAffiliateof theIssuersis theProperty Manager, theProperty Managershall at all times take all steps necessary and appropriate to maintain its own separateness from eachIssuer, and maintain the separateness of allAffiliatesof theProperty Managerand otherpropertiesthat theProperty Managermanages from theIssuersand from thePropertiesandMortgage Loans. Without limiting the foregoing:(i)theProperty Managerwill not hold its credit out as available to pay or support (as guarantor or otherwise) any of theIssuers’ obligations and it will not pay any suchIssuer’s obligations or expenses from theProperty Manager’s funds (other than expenses oradvancesrequired by thisAgreementto be made by theProperty Manager), (ii) theProperty Managerwill not make anyloansto or borrow any funds from anyIssuer(except asprovidedin clause(i)above), (iii) theProperty Managerwill not permit theIssuers’ assets to be included in orconsolidatedwithin theProperty Manager’s financial statements withoutincludinga note indicating that the assets and credit of theIssuersare not available to pay the debts of theProperty Managerand that its liabilities do not constitute obligations of anyIssuer. Notwithstanding the foregoing, theProperty Manageror itsAffiliatesmay make capital contributions, on a non-regular basis, to any of theIssuers.
(b) Notwithstanding any provisions to the contrary contained in theAgreementand so long asSTORE Capitalor anAffiliateof anyIssueris theProperty Manager, theProperty Manageragrees that eachIssueris a “single purpose entity” and that eachIssuermust maintain such status so long as theNotesremain outstanding as set forth in suchIssuer’s organizational documents. Accordingly, theProperty Managershall:
(i) hold itself out to the public as the ultimate parent of eachIssuer, legally distinct from suchIssuer, and shall conduct its duties and obligations on behalf of suchIssuerin its own name and shall correct any known misunderstanding regarding its separate identity from suchIssuer, and shall not identify itself as a department or division of suchIssueror suchIssueras a division or department of theProperty Manager;
(ii) in the management, servicing and administration of theProperties,LeasesandMortgage Loans, use the relatedIssuer’s separate stationery, invoices or checks for letters, invoices or checks to be signed by suchIssuer; and
(iii) shall pay eachIssuer’s liabilities solely from suchIssuer’s funds (except that theProperty Managershall make allAdvancesrequired to be made by theProperty Managerby thisAgreement).
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(c) So long asSTORE Capitalor anAffiliateof anyIssueris theProperty Manager, theProperty Managershall bring any legal proceedings to collect rent, principal or interest or other income from thePropertiesandMortgage Loans, or to oust or dispossess aTenantor otherPersonfrom aPropertyor foreclose on aMortgage Loan, only in the name of the relatedIssuerand at suchIssuer’s expense.
(d) So long asSTORE Capitalor anAffiliateof anyIssueris theProperty Manager, theProperty Managershall submitLeasesandMortgage Loans, service contracts and other contracts,including amendmentsthereto, to the relatedIssuerfor execution by suchIssuer. So long asSTORE Capitalor anAffiliateof anyIssueris theProperty Manager, theProperty Managershall not bind anyIssuerin respect of any term or condition of any suchLease,Mortgage Loanor contract except inLeases,Mortgage Loansor other contracts that are executed by the applicableIssuer.
Section 3.22 Estoppels.
The Property Manager shall deliver or cause to be delivered to the Indenture Trustee, promptly upon request but in no event later than twenty (20) days following receipt by Property Manager of such estoppel, from each applicable Issuer, certifications, duly acknowledged and certified, setting forth (i) the original Series Principal Balance of each Series of Notes, (ii) the outstanding Series Principal Balance of each Series of Notes, (iii) the applicable Note Rate of each Class of Notes in each Series, (iv) the last Payment Date, (v) any offsets or defenses to the payment of the Notes, if any, and (vi) that the Notes, this Indenture, the Mortgages, the organizational documents of such Issuer and the other Transaction Documents are valid, legal and binding obligations and have not been modified or, if modified, giving particulars of such modification.
Section 3.23 Environmental Matters.
(a) So long as anIssuerowns or is in possession of eachPropertyorMortgage Loan, each suchIssuershall, or shall cause theProperty Managerto, promptly notify theIndenture Trusteein writing if suchIssueror theProperty Managershall become aware of any hazardous and/or toxic, dangerous and/or regulated, substances, wastes, materials, raw materials whichincludehazardous constituents, pollutants or contaminantsincludingwithout limitation, petroleum, tremolite, anthlophylie, actinolite or polychlorinated biphenyls and any other substances or materials which are included under or regulated byEnvironmental Lawsor which are considered by scientific opinion to be otherwise dangerous in terms of the health, safety and welfare of humans (collectively, “Hazardous Substances”) other thanHazardous Substancesused or generated by anyTenantorBorrowerin the ordinary course of business and treated in accordance with applicableEnvironmental Laws (“Permitted Materials”)on or near eachPropertyand/or if suchIssueror theProperty Managershall become aware that any suchPropertyis in direct violation of any Environmental Laws and/or if suchIssueror theProperty Managershall become aware of any condition on or near any suchPropertywhich violates any Environmental Laws, suchIssuershall, or shall cause theProperty Managerto, cure such violations and remove anyHazardous Substancesthat pose a threat to the health, safety or welfare of humans, as shall be reasonably required by theProperty Managerin accordance with reasonable commercial lending standards and practices, at suchIssuer’s sole expense. Notwithstanding anything to the contrary in thisparagraph, each suchIssuerand its relatedTenantsorBorrowersmay use and storeHazardous Substancesat eachPropertyif such use or storage is in connection with the ordinary operation, cleaning and maintenance of eachPropertyso long as such use and storage is in compliance with any applicableEnvironmental Laws. Nothinghereinshall prevent suchIssuerfrom recovering such expenses from any other party that may be liable for such removal or cure.
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(b) EachIssuershall, or shall cause theProperty Managerto, give prompt written notices to theIndenture Trusteeand theProperty Manager, as the case may be, of any of the following: (i) any demand, notice of any violation, notice of any potential responsibility, proceeding or official inquiry by any Governmental Authority with respect to the presence of anyHazardous Substanceor asbestos or any substance or material containing asbestos (“Asbestos”) on, under, from or about anyProperty; (ii) all claims made by any third party against suchIssueror anyPropertyrelating to any loss or injury resulting from anyHazardous SubstanceorAsbestos; and (iii) suchIssuer’s or theProperty Manager’s discovery of any occurrence or condition on any realpropertyadjoining or in the vicinity of anyPropertythat causes suchPropertyto be subject to any official investigation or cleanup pursuant to anyEnvironmental Law. Subject to the rights of the applicableTenantunder the relatedLeaseorBorrowerunder the relatedMortgage Loan, eachIssuershall permit theIndenture Trusteeto join and participate in, as a party if it so elects, any legal proceedings or actions initiated with respect to anyPropertyin connection with any Environmental Law orHazardous Substanceand in such an instance, theIssuersand theIndenture Trusteeshall be represented by the same counsel;provided, however, that, if a conflict of interest arises between anyIssuerand theIndenture Trusteebecause potential claims could be brought against theIndenture Trustee, then theIndenture Trusteeshall be represented by its own counsel and suchIssuershall pay all reasonable attorney’s fees and disbursements incurred by theIndenture Trusteein connection therewith.
(c) Upon theProperty Manager’s request and subject to the rights of theTenantsunder theLeasesand the rights of theBorrowersunder theMortgage Loans, at any time and from time to time while thisIndentureis in effect, when (x) theProperty Managerhas determined (in the exercise of its good faith judgment) that reasonable cause exists for the performance of an environmental inspection or audit of anyPropertyor (y) anEvent of Defaultexists, eachIssuershall, or shall cause theProperty Managerto, provide at suchIssuer’s sole expense, (I) an inspection or audit of each suchPropertyprepared by a licensed hydrogeologist or licensed environmental engineer indicating the presence or absence ofHazardous Substanceson, in or near each suchProperty, and (II) an inspection or audit of suchPropertyprepared by a duly qualified engineering or consulting firm, indicating the presence or absence ofAsbestoson suchProperty. If suchIssuerfails to provide such inspection or audit within thirty (30) days after such request, theProperty Manager, at suchIssuer’s sole expense, which shall be deemed aProperty Protection Advance, may order the same, and suchIssuerhereby grants to theProperty Managerand its employees and agents access to eachPropertyand a license to undertake such inspection or audit in each case subject to the rights of theTenantsunder theLeasesand the rights of theBorrowersunder theMortgage Loans. In the event that any environmental site assessment report prepared in connection with such inspection or audit reasonably recommends that an operations and maintenance plan be implemented forAsbestosor anyHazardous Substance, the relatedIssuershall, to the-extent permitted under the relatedLeaseorMortgage Loan, cause such operations and maintenance plan to be prepared and implemented at suchIssuer’s expense upon request of theProperty Manager. In the event that any investigation, site monitoring, containment, cleanup, removal, restoration, or other work of any kind is reasonably necessary under an applicableEnvironmental Law (the “Remedial Work”), each Issuer shall, or shall cause theProperty Managerto, promptly commence and thereafter diligently prosecute, or cause any relatedTenantorBorrowerto commence and thereafter diligently prosecute, to completion all suchRemedial Workafter written demand by theProperty Managerfor performance thereof. AllRemedial Workshall be performed by contractors, and under the supervision of a consulting engineer. All costs and expenses of suchRemedial Workshall be paid by the relatedIssuer. In the event suchIssuershall fail to timely commence, or cause to be commenced, or fail to diligently prosecute to completion, suchRemedial Work, theProperty Managermay, but shall not be required to, cause suchRemedial Workto be performed, and all costs and expenses thereof, or incurred in connection therewith, shall be deemed aProperty Protection Advance.
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ARTICLE IV
REPORTS
Section 4.01 Reports to theIssuersand theIndenture Trustee.
(a) Not later than 3:00 p.m. (New York City time), three (3)Business Daysprior to eachPayment Date, theProperty Managershall deliver to eachIssuer, theIndenture Trusteeand each Rating Agency a report containing the information specified onExhibit H hereto, and such other information with respect to theMortgage Loans, theLeasesandPropertiesas theIndenture Trusteemay reasonably request (such report, the “Determination Date Report”) in a mutually agreeable electronic format, reflecting as of the close of business on the last day of the relatedCollection Period, the information required for purposes of making the payments required by Section 2.11(b) of theIndentureand the calculations and reports referred to in Section 6.01 of theIndenture,including, but not limited to, the maturity date and the required monthly rent orloanpayment of eachLeaseorMortgage Loan. So long asSTORE Capitalor anAffiliateof anIssueris theProperty Manager, theDetermination Date Reportshall also contain a certification by theProperty Managerthat eachIssuerhas not incurred any indebtedness except indebtedness permitted by any applicable limited liability companyagreementof the relatedIssuer Memberor the Transaction Documents. TheDetermination Date Reportshall also contain a certification by theProperty Managerpursuant to Section 1(c) of theU.S. Risk Retention Agreement, as specified onExhibit H hereto. Such information shall be delivered by theProperty Managerto eachIssuerand theIndenture Trusteein such form as may be reasonably acceptable to eachIssuerand theIndenture Trustee, as applicable. TheSpecial Servicershall from time to time (and, in any event, as may be reasonably required by theProperty Manager) provide theProperty Managerwith such information regarding theSpecially Managed Unitsas may be necessary for theProperty Managerto prepare eachDetermination Date Reportand any supplemental information to beprovidedby theProperty Managerto eachIssueror theIndenture Trustee. In addition, with respect to the firstPayment Datewith respect to anySeriesfollowing the relatedSeries Closing Date, theDetermination Date Reportshallincludethe information required for compliance with theU.S. Credit Risk Retention Rules.
(b) Not later than 3:00 p.m. (New York City time) three (3)Business Daysprior to eachPayment Date, theSpecial Servicershall deliver to theProperty Manager, theIndenture Trusteeand each Rating Agency a report containing such information relating to theMortgage Loans, theLeasesandPropertiesmanaged by it and in such form as theIndenture Trusteemay reasonably request (such report, the “Special Servicer Report”) reflecting information as of the close of business on the last day of the immediately precedingCollection Period.
(c) Not later than the 45th day following the end of each calendar quarter, commencing with the quarter ended March 31, 2013 theSpecial Servicershall deliver to theIndenture Trustee, theRating Agenciesand theProperty Manager(A) a report containing such information and in such form as theIndenture Trusteemay reasonably request (such report, a “Modified Collateral Detail and Realized Loss Report”) with respect to all renewals, modifications, waivers, security deposits paid or rental concessions made pursuant to Section3.16and (B) subject to Section 6.03(a) of theIndenture, upon the reasonable request of theIndenture Trustee, theRating Agenciesor theProperty Manager, operating statements and other financial information collected or otherwise obtained by theSpecial Servicerduring such calendar quarter (together with copies of the operating statements and other financial information on which it is based) to the extent such information is not prohibited from being disclosed or restricted by confidentiality under the terms of the applicableLease DocumentsorLoan Documents.
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(d) TheProperty Manageror theSpecial Servicer, to the extent received by such party, shall deliver to theIndenture Trusteeand each applicable Rating Agency:
(i) within forty-five (45) days after the end of each calendar quarter the following items received by it, each executed by aResponsible Officerof each applicableIssueras being true and correct: (A) a written statement dated as of the last day of each such calendar quarter identifying to its knowledge any defaults under aLeaseorMortgage Loanwhich continues after the expiration of applicable cure periods and not otherwise included in theSpecial Servicer Report, and (B) the principal amount, aggregate unfundedloancommitments and maturity dates of all credit andloanfacilities then in place relating toSTORE Capitalor any of itssubsidiariesso long as the maturity date of such indebtedness is scheduled to occur within 365 days of the end of such calendar quarter, which shall be calculated bySTORE Capital; and
(ii) within forty-five (45) days after the end of each of the first three fiscal quarters of each year the following items received by it, each executed by aResponsible Officerof each applicableIssueras being true and correct(A) consolidatedfinancial statements of the relatedIssuer(consolidatedwith any co-Issuer)’s financial affairs and condition,includinga balance sheet and statement of profit and loss for the relatedIssuersin such detail as theIndenture Trusteemay request for theIssuersfor the immediately preceding calendar quarter, which statements shall be prepared by suchIssuer;provided, however, for so long asSTORE Capitalis a publicly traded company and has timely filed its Form 10-Qs as required by the Securities & Exchange Commission, it shall not be required to provideconsolidatedfinancial statements of theIssuersas set forth in this clause(A), (B)consolidatedfinancial statements ofSTORE Capital’s financial affairs and condition,includinga balance sheet, a cash flow summary report forSTORE Capitaland an operating statementincludingdetailed income and expense statement, in each case in such detail as theIndenture Trusteemay request forSTORE Capitalfor the immediately preceding calendar quarter, which statements shall be prepared bySTORE Capital, and (C) theNet WorthofSTORE Capitalat the end of the immediately preceding calendar quarter, which shall be calculated bySTORE Capital; and
(iii) within one hundred twenty (120) days after the end of each calendar year,(A) consolidatedfinancial statements of the financial affairs and condition of the relatedIssuer(consolidatedwith any co-Issuer),includinga balance sheet and statement of profit and loss, in such detail as theIndenture Trusteemay reasonably request for the immediately preceding calendar year, audited in conjunction with the audit ofSTORE Capitalby a “Big Four” accounting firm or other nationally recognized independent certified public accountant reasonably acceptable to theIndenture Trustee;provided, however, for so long asSTORE Capitalis a publicly traded company and has timely filed its Form 10-Ks as required by the Securities & Exchange Commission, it shall not be required to provideconsolidatedfinancial statements of theIssuersas set forth in this clause(A), and(B) consolidatedfinancial statements ofSTORE Capital’s financial affairs and condition,includinga balance sheet, a cash flow summary report forSTORE Capitaland an operating statementincludingdetailed income and expense statement, audited in conjunction with the audit ofSTORE Capitalby a “Big Four” accounting firm, or other nationally recognized independent certified public accountant reasonably acceptable to theIndenture Trustee, for the immediately preceding calendar year,provided, however, for so long asSTORE Capitalis a publicly traded company and has timely filed its Form 10-Ks as required by the Securities & Exchange Commission (containing an audit opinion by a “Big Four” accounting firm), it shall not be required to provideconsolidatedfinancial statements of theIssuersas set forth in this clause(B)and (C) theNet WorthofSTORE Capitalat the end of the immediately preceding year, which shall be calculated bySTORE Capital; and
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(iv) within forty-five (45) days after the end of each calendar quarter copies of notices of defaults under, or any material modifications to, any of theLeasesandMortgage Loans; and
(v) at any time and from time to time such other financial data as theIndenture Trusteeor its agents shall reasonably request with respect toSTORE Capitalor any of itssubsidiariesor the ownership, maintenance, use and operation of thePropertiesand servicing and administration of theLeasesandMortgage Loans, to the extent such information is not prohibited from being disclosed or restricted by confidentiality under the terms of the applicableLeaseorLoandocuments.
(e) TheIndenture TrusteeandProperty Managershall have the right, at any time and from time to time when anEvent of Defaultexists, upon reasonable notice to theIssuersand during normal business hours at theIssuers’ principal place of business, to conduct an inspection or review, at theIssuers’ expense, of theIssuers’ books and records. EachIssuershall cooperate, and shall cause its agents and employees to cooperate in the conduct of any such inspection or review.
(f) Following eachDetermination Date,theProperty Managershall determine whether theAvailable Amountdistributable on suchPayment Datepursuant to (and subject to the priorities set forth in) Section 2.11(b) of theIndenturewill be sufficient to pay the obligations under theIndentureon suchPayment Date. In the event theProperty Managerdetermines that theAvailable Amountdistributable on suchPayment Datepursuant to (and subject to the priorities set forth in) Section 2.11(b) of theIndenturewill not be sufficient to pay the obligations under theIndentureon such Payment Date (a “Deficiency”) theProperty Managershall notify theIndenture TrusteeandBack-Up Managerin writing of suchDeficiency, which written notice shall be delivered in the case of aDeficiency, on or before 1:00 p.m. New York City time on the thirdBusiness Daybefore suchPayment Date.
(g) TheIndenture Trusteeshall have no obligations or duties (i) to monitor theProperty Manager’s compliance with theU.S. Risk Retention Agreementor (ii) to verify, recalculate or confirm any of the information contained in theDetermination Date Reportwith respect to theU.S. Risk Retention Agreement.
Section 4.02 Use of Agents.
The Property Manager may at its own expense utilize agents or attorneys-in-fact, including Sub-Managers, in performing any of its obligations under this Article IV, but no such utilization shall relieve the Property Manager from any of such obligations, and the Property Manager shall remain responsible for all acts and omissions of any such agent or attorney-in-fact. The Property Manager shall have all the limitations upon liability and all the indemnities for the actions and omissions of any such agent or attorney-in-fact that it has for its own actions hereunder pursuant to Article V hereof, and any such agent or attorney-in-fact shall have the benefit of all the limitations upon liability, if any, and all the indemnities provided to the Property Manager under Section 5.03. Such indemnities shall be expenses, costs and liabilities of each Issuer, and any such agent or attorney-in-fact shall be entitled to be reimbursed therefor from the Collection Account as provided in Section 2.11(b) of the Indenture.
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ARTICLE V
THEPROPERTY MANAGERAND THESPECIAL SERVICER
Section 5.01 Liability of theProperty Manager, theSpecial Servicerand theBack-Up Manager.
The Property Manager, the Special Servicer and the Back-Up Manager shall be liable in accordance herewith only to the extent provided in Section 5.03 with respect to the obligations specifically imposed upon and undertaken by the Property Manager, the Special Servicer and the Back-Up Manager, respectively, herein.
Section 5.02 Merger, Consolidation or Conversion of theProperty Manager, theSpecial Servicerand theBack-Up Manager.
Subject to the following paragraph, the Property Manager, the Special Servicer and the Back-Up Manager shall each keep in full effect its existence, rights and franchises as a partnership, corporation, bank or association under the laws of the jurisdiction of its formation, and each will obtain and preserve its qualification to do business as a foreign partnership, corporation, bank or association in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement or any of the Leases and the Mortgage Loans and to perform its respective duties under this Agreement.
Each of the Property Manager, the Special Servicer and the Back-Up Manager may be merged or consolidated with or into any Person, or may transfer all or substantially all of its assets to any Person, in which case any Person resulting from any merger or consolidation to which the Property Manager, the Special Servicer or the Back-Up Manager is a party, or any Person succeeding to the business of the Property Manager, the Special Servicer or the Back-Up Manager, will be the successor Property Manager, the successor Special Servicer or the successor Back-Up Manager, as the case may be, hereunder, and each of the Property Manager, the Special Servicer and the Back-Up Manager may transfer its rights and obligations under this Agreement to an Affiliate or non-Affiliate; provided, however, that no such successor, surviving Person or transferee will succeed to the rights of the Property Manager or the Special Servicer unless it shall have furnished to the Issuers and the Indenture Trustee evidence that the Rating Condition is satisfied.
Section 5.03 Limitation on Liability of theProperty Manager, theSpecial Servicerand theBack-Up Manager.
None of the Property Manager, the Special Servicer or the Back-Up Manager or any director, officer, employee, agent or Control Person of any of them shall be under any liability to the Issuers, the Indenture Trustee or the Noteholders or the holders of the Issuer Interests or to any other person for any action taken, or not taken, in good faith pursuant to this Agreement, or for errors in judgment;provided,however, that none of the Property Manager, the Special Servicer or the Back-Up Manager shall be protected against any liability that would otherwise be imposed by reason of misfeasance, bad faith or negligence in the performance (including the failure to perform) of obligations or duties hereunder. The Property Manager, the Special Servicer and the Back-Up Manager and any director, officer, employee, agent or Control Person of any of them shall be entitled to indemnification by each Issuer, payable, subject to Section 2.11(b) of the Indenture, out of the Payment Account, against any claim, loss, liability or expense incurred in connection with any legal action that relates to this Agreement, the Indenture, the Purchase and Sale Agreements, the Issuer Interests or the Notes;provided,however, that such indemnification shall not extend to any loss, liability or expense incurred by reason of misfeasance, bad faith or negligence in the performance (including the failure to perform) of obligations or duties under this Agreement. None of the Property Manager the Special Servicer shall be under any obligation to appear in, prosecute or defend any legal action that is not incidental to its respective responsibilities under this Agreement and that in its opinion may involve it in any expense or liability;provided,however, that each of the Property Manager, the Special Servicer and the Back-Up Manager shall undertake any such action necessary or desirable with respect to the enforcement or protection of the rights and duties of the parties hereto or the interests of the Issuers hereunder. In such event, the legal expenses and costs of such action, and any liability resulting therefrom, shall be expenses, costs and liabilities of the Issuers as an Extraordinary Expense and the Property Manager, the Special Servicer, or the Back-Up Manager as the case may be, shall be entitled to be reimbursed therefor from the Payment Account, pursuant to Section 2.11(b) of the Indenture.
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Section 5.04 Term of Service;Property ManagerandSpecial ServicerNot to Resign.
Each Issuer may, upon written consent by the Indenture Trustee acting at the direction of the Requisite Global Majority, and written notice (without any requirement of consent) to the Property Manager and the Special Servicer, transfer the servicing duties and obligations of the Property Manager and the Special Servicer to a new servicer;provided, that if the Indenture Trustee shall not have received the consent of the Requisite Global Majority within four (4) months after the making of such request, such consent shall be deemed granted unless the consent is not approved by the Requisite Global Majority. The Indenture Trustee’s written consent to any such transfer shall be contingent upon receipt by the Indenture Trustee, upon not less than fifteen (15) Business Days’ notice by the Issuers to the applicable Rating Agencies, of written confirmation from: (1) the applicable Rating Agency that such appointment will not adversely affect the higher of (A) the then current rating of any Class of the Notes and (B) the rating of any Class of Notes on the related Issuance Date of such Notes; (2) the replacement Property Manager and Special Servicer of its acceptance of its appointment; and (3) consent by the Requisite Global Majority. The written consent or confirmation may be made by facsimile confirmed in a written notice delivered to the Indenture Trustee by first class mail, postage prepaid, personal delivery or certified mail. The Issuers and the replacement Property Manager and Special Servicer shall execute and deliver a transfer agreement (the “Servicing Transfer Agreement”) mutually agreed upon in advance and effective on the transfer date (the “Servicing Transfer Date”), whereby the replacement Property Manager and the Special Servicer will agree to perform all of the duties and obligations of the Property Manager and the Special Servicer under this Agreement. The replacement Property Manager and Special Servicer shall be entitled to payment of a prorated portion (which shall be based on actual days of service and a year of 365/366 days) of the Property Management Fee and the Special Servicing Fee during its term of service. Each Servicing Transfer Agreement shall include any additional terms and provisions that the parties to this Agreement reasonably determine are necessary or appropriate and which additional terms and provisions shall be approved by all the parties to the Servicing Transfer Agreement, which approvals shall not be unreasonably withheld. The Transfer Agreement shall contain a provision stating that the former Property Manager and Special Servicer is relieved from all liability under this Agreement for acts or omissions occurring after the Servicing Transfer Date.
None of the Property Manager, the Back-Up Manager or the Special Servicer (subject to Section 5.06) shall resign from the obligations and duties hereby imposed on it, except upon determination that its duties hereunder are no longer permissible under applicable law or are in material conflict by reason of applicable law with any other activities carried on by it, the other activities of the Property Manager, the Back-Up Manager or the Special Servicer, as the case may be, so causing such a conflict being of a type and nature carried on by the Property Manager, the Back-Up Manager or the Special Servicer, as the case may be, at the date of this Agreement. Any such determination permitting the resignation of the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, shall be evidenced by an Opinion of Counsel to such effect that shall be delivered to each Issuer and the Indenture Trustee. No such resignation shall become effective until the Back-Up Manager or another successor shall have assumed the responsibilities and obligations of the resigning party hereunder. Notwithstanding the foregoing, each of the Property Manager, the Back-Up Manager and the Special Servicer may cause all of the obligations and duties imposed on it by this Agreement to be assumed by, and may assign its rights, benefits or privileges hereunder to, with the prior written approval of each applicable Issuer, which approval shall not be unreasonably withheld, conditioned or delayed, an Affiliate or a servicer that is not an Affiliate, in each case, upon its delivery to each Issuer and the Indenture Trustee of written confirmation from each Rating Agency that such a transfer and assignment will not adversely affect its then-current rating of any Class of the Notes, and the assumption by the assignee of all of the obligations and duties of the Property Manager, the Back-Up Manager and/or the Special Servicer, as applicable. Upon any such assignment and assumption by the assignee of all of the obligations of the Property Manager, the Back-Up Manager and/or the Special Servicer, the assignor, STORE Capital (or its successor acting prior to such assignment), shall be relieved from all liability hereunder for acts or omissions of the Property Manager and/or the Special Servicer, as applicable, occurring after the date of the assignment and assumption.
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Except as expressly provided herein, neither the Property Manager nor the Special Servicer shall assign or transfer any of its rights, benefits or privileges hereunder to any other Person or delegate to or subcontract with, or authorize or appoint, any other Person to perform any of the duties, covenants or obligations to be performed by it hereunder, or cause any other Person to assume such duties, covenants or obligations. If, pursuant to any provision hereof, the duties of the Property Manager or the Special Servicer are transferred by an assignment and assumption to a successor thereto, the entire amount of compensation payable to the Property Manager or the Special Servicer, as the case may be, that accrues pursuant hereto from and after the date of such transfer shall be payable to such successor.
Notwithstanding anything to the contrary herein, KeyBank National Association may resign as the Back-Up Manager, Property Manager and Special Servicer (provided that upon such resignation, KeyBank National Association shall be deemed to have resigned from all such duties) upon the issuance of any Series of Notes after the initial Issuance Date, and upon such resignation a successor Property Manager, Special Servicer or Back-Up Manager, as the case may be, shall be appointed in connection with the issuance of any such Series and otherwise in accordance with the terms of this Agreement.
Section 5.05 Rights of Certain Persons in Respect of theProperty Managerand theSpecial Servicer.
Each of the Property Manager and the Special Servicer shall afford to the other and, also, to each Issuer, the Indenture Trustee and the Back-Up Manager, upon reasonable notice, during normal business hours (a) access to all records maintained by it relating to the Mortgage Loans, Properties and Leases included in the Collateral Pool and in respect of its rights and obligations hereunder, to the extent not prohibited by confidentiality (including attorney-client privilege), contract or applicable law, and (b) access to such of its officers as are responsible for such obligations. Upon reasonable request, the Property Manager and the Special Servicer shall each furnish the Issuers and the Indenture Trustee with its most recent financial statements and such other information as it possesses, and which it is not prohibited by confidentiality (including attorney-client privilege), applicable law or contract from disclosing, regarding its business, affairs, property and condition, financial or otherwise. Each Issuer may, but is not obligated to, enforce the obligations of the Property Manager and the Special Servicer hereunder and may, but is not obligated to, perform, or cause a designee to perform, any defaulted obligation of the Property Manager or the Special Servicer hereunder, or exercise the rights of the Property Manager or the Special Servicer hereunder;provided,however, that neither the Property Manager nor the Special Servicer shall be relieved of any of its obligations hereunder by virtue of such performance by any such Issuer or its designee. The Issuers shall not have any responsibility or liability for any action or failure to act by or with respect to the Property Manager or the Special Servicer.
Section 5.06 Designation ofSpecial Servicerby theIndenture Trustee.
Subject to Section 5.04 and Section 6.02, and only in the event that the Back-Up Manager cannot serve, the Indenture Trustee may from time to time designate a Person to serve as Special Servicer hereunder to replace any Special Servicer that has resigned or otherwise ceased to serve as Special Servicer. The Indenture Trustee shall so designate a Person to serve by the delivery to the Issuers, the Property Manager and the existing Special Servicer of a written notice stating such designation. The Indenture Trustee shall, promptly after delivering any such notice, deliver to the applicable Rating Agency an executed Notice and Acknowledgment in the form attached hereto asExhibit C-1. The designated Person shall become the Special Servicer on the date that any Issuer and the Indenture Trustee shall have satisfied the Rating Condition with respect to such appointment. The appointment of such designated Person as Special Servicer shall also be subject to receipt by the Issuers and the Indenture Trustee of (i) an Acknowledgment of Proposed Special Servicer in the form attached hereto asExhibit C-2, executed by the designated Person, and (ii) an Opinion of Counsel (at the expense of the Person designated to become the Special Servicer) to the effect that the designation of such Person to serve as Special Servicer is in compliance with this Section 5.06 and all other applicable provisions of this Agreement, that upon the execution and delivery of the Acknowledgment of Proposed Special Servicer the designated Person shall be bound by the terms of this Agreement and that this Agreement shall be enforceable against the designated Person in accordance with its terms. Any existing Special Servicer shall be deemed to have resigned simultaneously with such designated Person’s becoming the Special Servicer hereunder;provided,however, that the resigning Special Servicer shall continue to be entitled to receive all amounts accrued or owing to it under this Agreement on or prior to the effective date of such resignation, whether in respect of Advances or otherwise, and it shall continue to be entitled to the benefits of Section 5.03 notwithstanding any such resignation. Such resigning Special Servicer shall cooperate with the Indenture Trustee and the replacement Special Servicer in effecting the termination of the resigning Special Servicer’s responsibilities and rights hereunder.
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Section 5.07 Property ManagerorSpecial Serviceras Owner of Notes.
The Property Manager or an Affiliate of the Property Manager, or the Special Servicer or an Affiliate of the Special Servicer or Back-Up Manager or its Affiliates, may become the holder of any Notes or any Issuer Interests with the same rights as it would have if it were not the Property Manager, the Special Servicer or any such Affiliate. Subject to Section 3.17, if, at any time during which the Property Manager, the Special Servicer or any of their respective Affiliates is the holder of any Note or Issuer Interests, the Property Manager or the Special Servicer proposes to take or omit to take action (i) which action or omission is not expressly prohibited by the terms hereof and would not, in the Property Manager or the Special Servicer’s good faith judgment, violate the Servicing Standard, and (ii) which action, if taken, or omission, if made, might nonetheless, in the Property Manager’s or the Special Servicer’s good faith judgment, be considered by other Persons to violate the Servicing Standard, the Property Manager or the Special Servicer may, but need not, seek the approval of the Noteholders and the holders of the Issuer Interests to such action or omission by delivering to each Issuer and the Indenture Trustee a written notice that (a) states that it is delivered pursuant to this Section 5.07, (b) identifies the portion of Notes and Issuer Interests beneficially owned by the Property Manager or the Special Servicer or an Affiliate of the Property Manager or the Special Servicer, as applicable, and (c) describes in reasonable detail the action that the Property Manager or the Special Servicer, as the case may be, proposes to take. Upon receipt of such notice, each Issuer shall forward such notice to the applicable holders of the Issuer Interests. If, at any time, the holders of Issuer Interests representing greater than 50% of the Issuer Interests and a Requisite Global Majority (calculated without regard to the Notes or Issuer Interests beneficially owned by the Property Manager and its Affiliates or the Special Servicer and its Affiliates, as applicable) separately consent in writing to the proposal described in the related notices, and if the Property Manager or the Special Servicer shall act as proposed in the written notice, and if the Property Manager or the Special Servicer, as the case may be, takes action or omits to take action as proposed in such notices, such action or omission will be deemed to comply with the Servicing Standard. It is not the intent of the foregoing provision that the Property Manager or the Special Servicer be permitted to invoke the procedure set forth herein with respect to routine servicing matters arising hereunder, but rather in the case of unusual circumstances.
ARTICLE VI
SERVICER REPLACEMENT EVENTS
Section 6.01 Servicer Replacement Events.
(a) “Servicer Replacement Event” wherever usedhereinwith respect to theProperty ManagerorSpecial Servicer, means any one of the following events:
(i) any failure by theProperty Manageror theSpecial Servicerto remit to theCollection Account, theRelease Accountor thePayment Account(or to theIndenture Trusteefor deposit into thePayment Account) any amount as and when required to be so remitted pursuant to the terms of thisAgreement, theIndenture, theMaster Exchange Agreementor theEscrow Agreement, which failure remains unremedied for two (2)Business Days; or
(ii) theProperty Managerfails to make anyP&I Advanceas required by thisAgreement, which failure remains unremedied upon the time set forth in Section3.03(b); or
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(iii) theProperty Managerfails to make anyProperty Protection Advanceas required by theIndentureor thisAgreement, which failure remains unremedied for the earlier of (A) four (4)Business Daysand (B) thedue datefor which suchProperty Protection Advanceis being made; or
(iv) any failure on the part of theProperty Manageror theSpecial Servicerto observe or perform in any material respect any other of the covenants or agreements on the part of theProperty Manageror theSpecial Servicer, as the case may be, contained in thisAgreementwhich continues unremedied for a period of 30 days (or such longer period as is reasonably required to cure the subject matterprovidedthat (A) theProperty Manageror theSpecial Servicershall diligently prosecute such cure, (B) such extended cure period does not have a material adverse effect on anyIssuer, theNoteholdersor thePropertiesand (C) such longer period shall not exceed 60 days) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to theProperty Managerand theSpecial Servicerby any other party hereto or theProperty Manageror theSpecial Servicerotherwise has notice of such failure; or
(v) any breach on the part of theProperty Manageror theSpecial Servicerof any representation or warranty contained in thisAgreementthat materially and adversely affects the interests of anyIssuer, which remains unremedied for five (5) days after the earlier of the date on which written notice of such breach, requiring the same to be remedied, shall have been given to theProperty Managerand theSpecial Servicerby any other party hereto or theProperty ManagerorSpecial Servicerbecomes aware of any such breach; or
(vi) there shall have been commenced before a court or agency or supervisory authority having jurisdiction an involuntary proceeding against theProperty Manageror theSpecial Servicerunder any present or future federal or statebankruptcy, insolvency or similar lawfor the appointment of a conservator, receiver, liquidator,trusteeor similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, which action shall not have been dismissed for a period of ninety (90) days; or
(vii) theProperty Manageror theSpecial Servicershall consent to the appointment of a conservator, receiver, liquidator,trusteeor similar official in any bankruptcy, insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to it or of or relating to all or substantially all of itsproperty; or
(viii) theProperty Manageror theSpecial Servicershall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable bankruptcy, insolvency or reorganization statute, make an assignment for the benefit of its creditors; or
(ix) either theProperty Manageror theSpecial Servicerassigns any of its obligations under thisAgreementto any third party other than as permitted under thisAgreementor any otherTransaction Document; or
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(x) either theProperty Manageror theSpecial Servicerfails to observe reporting requirements, which failure remains unremedied for five (5) days after notice;provided, that with respect to the delivery of theDetermination Date Report, such period shall be for one (1) day after notice; or
(xi) a material adverse change occurs with respect to theProperty Manageror theSpecial Servicer, which remains unremedied for thirty (30) days; or
(xii) aChange of Controlshall occur with respect toSTORE Capitalwith respect to which consent was not previously obtained from theRequisite Global Majority; or
(xiii) anyIssueror theIndenture Trusteeshall have received confirmation in writing from any Rating Agency that the failure to remove theProperty Manageror theSpecial Servicerin such capacity would in and of itself cause a downgrade, qualification or withdrawal of any of the ratings then assigned by such Rating Agency to anyClassof theNotes; or
(xiv) anEvent of Defaultunder Section 4.01(a), (b), (c), (f), (g) or (j) of theIndentureshall have occurred; or
(xv) any otherEvent of Defaultunder theIndenture, other than anEvent of Defaultunder Section 4.01(a), (b), (c) (f), (g) or (j) thereof, shall have occurred and theIndenture Trusteeshall have accelerated theNotes; or
(xvi) theMonthly DSCRshall be less than 1.1 for three (3) consecutivePayment Dates; or
(xvii) theNet WorthofSTORE Capitalshall be less than $100,000,000.
When a single entity acts as Property Manager and Special Servicer, a Servicer Replacement Event in one capacity shall constitute a Servicer Replacement Event in each capacity;provided,however, that, subject to this Section 6.01(a), each Issuer, the Indenture Trustee and the holders of the Notes and the Issuer Interests may at their option elect to terminate the Property Manager or the Special Servicer in one or the other capacity rather than both such capacities. Each of the Property Manager and the Special Servicer will notify the Indenture Trustee and the Back-Up Manager in writing of the occurrence of a Servicer Replacement Event or an event that, with the giving of notice or the expiration of any cure period, or both, would constitute a Servicer Replacement Event promptly upon obtaining knowledge thereof.
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Section 6.02 Appointment of Successor Servicer.
(a) If anyServicer Replacement Event(other than under clauses(ii)or(iii)of Section6.01(a)above) with respect to theProperty Manageror theSpecial Servicer(in either case, for purposes of this Section6.02, the “Defaulting Party”) shall occur and be continuing, then, and in each and every such case, subject to the remainder of this Section6.02, theIndenture Trusteeshall cause the initialProperty Managerand/or the initialSpecial Servicerto be replaced with theBack-Up Manager, by notice in writing to theDefaulting Party(with a copy of such notice to each other party hereto) and (y) terminate all of the rights and obligations accruing from and after such notice of theDefaulting Partyunder thisAgreementand in and to theCollateral(other than as a holder of any Note orIssuer Interest). All notices by theIndenture Trusteeof aServicer Replacement Eventshall be concurrently delivered to theNoteholderswith a notice advising theNoteholdersof their right to waive suchServicer Replacement Event. In the event that theNoteholders(excludingSTORE Capitalor any of itsAffiliates) representing theRequisite Global Majorityhave either approved of the removal of theProperty Manageror theSpecial Servicerin accordance with thisAgreementor not waived the occurrence of suchServicer Replacement Eventwithin thirty (30) days of such notice, theIndenture Trusteewill cause the initialProperty Managerand/or the initialSpecial Servicerto be replaced with theBack-Up Manager. Upon the occurrence of aServicer Replacement Eventunder clause(ii)or (iii) with respect to the initialProperty Manageror the initialSpecial Servicer, theIndenture Trusteeshall immediately terminate the initialProperty Managerand initialSpecial Servicerand shall replace them with theBack-Up Manager.
Upon the occurrence of a Servicer Replacement Event with respect to the Property Manager or the Special Servicer that is not STORE Capital or an Affiliate of an Issuer, the Indenture Trustee (i) may (with the consent of the Requisite Global Majority) cause the Property Manager and/or the Special Servicer to be replaced with a successor Property Manager (the “Successor Property Manager”) and/or successor Special Servicer (the “Successor Special Servicer”), and (ii) shall at the direction of the Requisite Global Majority cause the Property Manager and/or the Special Servicer to be replaced with a Successor Property Manager and/or Successor Special Servicer.
(b) From and after the receipt by theDefaulting Partyof such written notice, all authority and power of theDefaulting Partyunder thisAgreement, whether with respect to theIssuers(other than as a holder of any Note orIssuer Interest) or theMortgage Loans,LeasesorPropertiesor otherwise, shall pass to and be vested in theBack-Up Managerpursuant to and under this Section, and, without limitation, theBack-Up Manageris hereby authorized and empowered to execute and deliver, on behalf of and at the expense of theDefaulting Party, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement or assignment of theMortgage Loans,Leases,Propertiesand related documents, or otherwise.
(c) The appointment of aSuccessor Property ManagerorSuccessor Special Servicerwill be subject to, among other things, (i) except in the case of the appointment of KeyBank National Association as theSuccessor Property ManagerorSuccessor Special Servicer, the satisfaction of theRating Conditionand (ii) the writtenagreementof theSuccessor Property ManagerorSuccessor Special Servicerto be bound by the terms and conditions of thisAgreement, together with anOpinion of Counselregarding the enforceability of suchagreement. Subject to the foregoing, any person,includingany holder ofNotesorIssuer Interestsor anyAffiliatethereof, may be appointed as theSuccessor Property ManagerorSuccessor Special Servicer.
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(d) In the event that aSuccessor Property ManagerorSuccessor Special Servicerhas failed to assume the responsibilities of theProperty ManagerorSpecial Servicerasprovidedin thisAgreementwithin 30 days of written notice of termination, theBack-Up Managerwill be both theProperty Managerand theSpecial Servicer, under thisAgreement;provided, however, that eachIssuerwill have the right to replace theBack-Up Manageracting asProperty ManagerorSpecial Servicerwithout cause upon 30 days’ written notice. IfKeyBankis terminated as theProperty ManagerorSpecial Servicerunder thisAgreement, such termination shall be deemed to automatically terminateKeyBankas theProperty Manager, theSpecial Servicerand theBack-Up Manager, as applicable. In addition, if theBack-Up Manager, asProperty Manager, orSpecial Servicermakes anyAdvancesor incurs any other expenses in accordance with the terms and provisions of thisAgreement, anySuccessor Property Managerwill be required to reimburse theBack-Up Manager, as predecessorProperty Manageror predecessorSpecial Servicer, for suchAdvancesand other expenses incurred in accordance with the terms and provisions of thisAgreementas a condition to its appointment as successorProperty Manager.
Each of the Property Manager and the Special Servicer agrees that, if it is terminated pursuant to this Section 6.02, it shall promptly (and in any event not later than ten (10) days subsequent to its receipt of the notice of termination) provide the Indenture Trustee and Back-Up Manager with all documents and records in its possession requested thereby to enable the Back-Up Manager (or such other applicable successor) to assume the Property Manager or Special Servicer’s, as the case may be, functions hereunder, and shall cooperate with the Back-Up Manager (or such other applicable successor) in effecting the termination of the Property Manager or Special Servicer’s, as the case may be, responsibilities and rights hereunder, including the transfer within two (2) Business Days to the Back-Up Manager (or such other applicable successor) for administration by it of all cash amounts that shall at the time be or should have been credited by the Property Manager or the Special Servicer to the Collection Account or thereafter be received by or on behalf of it with respect to any Mortgage Loan, Lease or Property (provided,however, that the Property Manager and the Special Servicer each shall, if terminated pursuant to this Section 6.02, continue to be obligated for or entitled to pay or receive all costs in connection with such transfer and all amounts accrued or owing by or to it under this Agreement on or prior to the date of such termination, whether in respect of Advances or otherwise, and it and its directors, officers, employees and agents shall continue to be entitled to the benefits of Section 5.03 notwithstanding any such termination). In the event any Advances made by the Property Manager or the Indenture Trustee shall at any time be outstanding, or any amounts of interest thereon shall be accrued and unpaid, all amounts available to repay Advances and interest hereunder shall be applied first entirely to Advances made by the Indenture Trustee (and the accrued and unpaid interest thereon) until such Advances made by the Indenture Trustee (and the accrued and unpaid interest thereon) shall have been repaid in full and then to Advances made by the Property Manager (and the accrued and unpaid interest thereon). Any costs or expenses in connection with any actions to be taken by the Property Manager or Special Servicer pursuant to this paragraph shall be borne by the Property Manager or Special Servicer, as the case may be, and to the extent not paid by such defaulting party, such expense shall be borne by the applicable Issuer and paid from amounts distributed pursuant to Section 2.11(b) of the Indenture. In the event that the Back-Up Manager cannot serve, the Indenture Trustee may designate a Person to serve as Back-Up Manager hereunder to replace any Property Manager and/or Special Servicer that has resigned or otherwise ceased to serve as Property Manager and/or Special Servicer. The Indenture Trustee shall so designate a Person to so serve by the delivery to the Issuers, the Property Manager and the existing Special Servicer of a written notice stating such designation.
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Section 6.03 Back-Up Manager.
(a) TheBack-Up Managershall maintain current servicing records and systems concerning theProperties, theLeasesand theMortgage Loansin order to enable it to timely and efficiently assume the responsibilities of theProperty Managerand/orSpecial Servicerin accordance with theServicing Standardand otherwise in accordance with the terms and conditions of thisAgreement.
(b) Subject to Section6.02, following aServicer Replacement Event, theProperty Managershall arrange for the delivery to theBack-Up Managerof all of theServicing Files, whichServicing Filesshall contain sufficient data to permit theBack-Up Managerto assume the duties of theProperty ManagerorSpecial Servicer hereunderwithout delay. Subject to Section6.02, following theServicer Replacement Eventwith respect to theSpecial Servicer, theSpecial Servicershall arrange for the delivery to theBack-Up Managerof each of theServicing Filesfor anySpecially Managed Unit, whichServicing Filesshall contain sufficient data to permit theBack-Up Managerto assume the duties of theSpecial Servicer hereunderwithout delay. IfKeyBankis theBack-Up Manager, (i) any appointment ofBack-Up ManagerasProperty ManagerorSpecial Servicershall be deemed to be an appointment ofBack-Up Manageras bothProperty ManagerandSpecial Servicerand (ii) in the eventKeyBankis terminated asProperty ManagerorSpecial Servicer,KeyBankshall automatically be terminated both asProperty ManagerandSpecial Servicer. In the eventKeyBankis terminated asSub-Managerunder theSub-Management Agreement, it shall automatically be terminated asProperty Manager,Special ServicerandBack-Up Manager, as applicable.
(c) Subject to Section6.02, following aServicer Replacement Event, theBack-Up Managershall use reasonable efforts to diligently complete the physical transfer of servicing from the terminatedProperty ManagerorSpecial Servicerwith the cooperation of suchDefaulting Party. From and after the date physical transfer of servicing is completed (the “Back-Up Servicing Transfer Date”), the Back-Up Manager shall service and/or specially service theProperties,Leasesand theMortgage Loansin accordance with the provisions of thisAgreementwith all the rights and obligations of theProperty Managerand theSpecial Servicerand shall have no liability or responsibility with respect to any obligations of eachDefaulting Party, arising or accruing prior to theBack-Up Servicing Transfer Date. EachIssuer, if it determines in its reasonable discretion that enforcement rights and/or remedies are available to theNoteholdersagainst the terminatedProperty ManagerorSpecial Servicerand it is prudent under the circumstances to enforce such rights, agree to enforce their rights under thisAgreementagainst the terminatedProperty ManagerorSpecial Servicer,includingany rights they have to enforce eachDefaulting Party’s obligation to fully cooperate in the orderly transfer and transition of servicing and otherwise comply with the terms of thisAgreement. In the event that theBack-Up Managerdiscovers or becomes aware of any errors in any records or data of eachDefaulting Partywhich impairs its ability to perform its dutieshereunder, theBack-Up Managershall notify eachIssuerand theIndenture Trusteein writing of such errors and shall, at eachDefaulting Party’s expense (or, if not paid by such party, as aProperty Protection Advance) and upon theIssuers’ direction, undertake to correct or reconstruct such records or data.
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(d) From and after the date of thisAgreementuntil theBack-Up Servicing Transfer Date, theProperty Managershall provide or cause to beprovidedto theBack-Up Manageron or before the 20th day of each month, in electronic form, a complete data tape of theMortgage Loan Schedule, theOwned Property Scheduleand such other information as anyIssuermay reasonably deem necessary,includingall information necessary to determine theRelease Priceand original purchase price paid by the applicableIssuer, and shall make available to theBack-Up Managera copy of eachDetermination Date Reportand anySpecial Servicer Report. In addition, theProperty Managershall provide all other documents and materials as are reasonably requested by theBack-Up Manager. TheBack-Up Managerwill perform an initial comprehensive data integrity review and a monthly review of this information to determine whether it provides adequate information to enable theBack-Up Managerto perform its obligationshereunderas theBack-Up Manager. To the extent that theBack-Up Managerdetermines within ten (10) calendar days of its receipt of such information that such information is inadequate for theBack-Up Managerto perform its obligations as theBack-Up Manager, theBack-Up Managerwill provide prompt written notice to eachIssuer, theIndenture Trusteeand theProperty Manageridentifying any deficiencies in such information that do not enable theBack-Up Managerto perform its obligations as theBack-Up Manager. TheProperty Managershall use its best efforts to provide any such deficient information to theBack-Up Managerwithin ten (10) calendar days of receipt of such notice from theBack-Up Manager.
(e) Within ten (10)Business Daysof the date of receipt from theProperty Manager, theBack-Up Managershall, in order to understand the purpose of each data field (and the interrelationships among such data fields), review the form ofDetermination Date Reportand theSpecial Servicer Report, each in the form agreed to by theProperty Manager, theIndenture Trusteeand theBack-Up Manager. Provided the data in theDetermination Date Reportand theSpecial Servicer Reportare in a format readable by theBack-Up Manager, theBack-Up Managershall create a set of conversion routines and database mapping programs, as necessary, that will enable theBack-Up Managerto (i) receive such data from theProperty Manageron a monthly basis and to ensure that the data is readable, and (ii) independently generate suchDetermination Date Reports and Special Servicer Reports, as applicable, following theBack-Up Servicing Transfer Date;provided, however, that theBack-Up Managershall have no obligations with respect to the information contained in theDetermination Date Reportwith respect to theU.S. Risk Retention Agreement.
(f) On a monthly basis, theBack-Up Managershall (x) verify receipt of theDetermination Date Reportand theSpecial Servicer Reportrequired to be delivered by theProperty Manager, and (y) verify that such records and data are in a readable format.
(g) TheBack-Up Managermay resign from its obligations under thisAgreement(i) pursuant to the terms and provisions of Section5.04, and (ii) other than in connection with a resignation under the lastparagraphof Section5.04, if theBack-Up Manageridentifies a successorback-up managerwho agrees to undertake the obligations of theBack-Up Managerunder thisAgreementand provides theIndenture Trusteewith written confirmation of satisfaction of theRating Condition.
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Section 6.04 Additional Remedies ofIssuersand theIndenture Trusteeupon aServicer Replacement Event.
During the continuance of any Servicer Replacement Event, so long as such Servicer Replacement Event shall not have been remedied, in addition to the rights specified in Section 6.01, each Issuer shall have the right, and the Indenture Trustee shall have the right, in its own name and as trustee of an express trust, to take all actions now or hereafter existing at law, in equity or by statute to enforce its rights and remedies and to protect the interests, and enforce the rights and remedies of the holders of the Issuer Interests and the Notes (including the institution and prosecution of all judicial, administrative and other proceedings and the filings of proofs of claim and debt in connection therewith). Except as otherwise expressly provided in this Agreement, no remedy provided for by this Agreement shall be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to any other remedy, and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Servicer Replacement Event.
ARTICLE VII
TRANSFERS ANDEXCHANGESOFPROPERTIESANDMORTGAGE LOANSBYISSUERS; RELEASE OF PROPERTIES AND MORTGAGE LOANS BY ISSUERS
Section 7.01 ExchangeofMortgage LoansandProperties.
(a) EachIssuermay removeReleased AssetsandExchanged Assetsfrom theCollateral Poolinexchangefor the addition of one or moreQualified Substitute Properties,Qualified Substitute Hybrid LeasesorQualified Substitute Loans, as applicable to theCollateral Pool providedthatafter giving effect to asubstitution orexchangepursuant to this Section7.01, (i) the sum of theCollateral Valueof allReleased AssetsandExchanged Assetsreleased or exchanged since theInitial Closing Dateshall not exceed 35% of theAggregate Collateral Value(measured as of the most recentIssuance Date); and (ii) the sum of theCollateral Valueof allReleased Assetsreleased since theInitial Closing Dateby paying theRelease Price, solely to the extent suchRelease Pricewas applied to any of theNotesasUnscheduled Principal Payments, shall not exceed 25% of theAggregate Collateral Value(measured as of the most recentIssuance Date);provided, after each of the Series 2013-1 Notes, the Series 2013-2 Notes, the Series 2013-3 Notes, the Series 2014-1 Notes, the Series 2015-1 Notes and the Series 2016-1 Noteshave been repaid in full, in connection with the issuance of each subsequentSeries of Notes, the limitations described in sentenceparagraphmay be reset such that (i) the sum of theCollateral Valueof theExchanged AssetsorReleased Assets, as applicable, will reflect the aggregateExchanged AssetsorReleased Assetsexchanged or released since the priorIssuance Dateand (ii) the maximum percentages of theCollateral Poolthat may be exchanged or released may be subject to change;provided further that in connection with each issuance and the changes described in this sentence, theRating Conditionhas been satisfied. NoPropertywill constitute aQualified Substitute PropertyorQualified Underlying Property, noMortgage Loanwill constitute aQualified Substitute Loan and no Hybrid Leasewill constitute aQualified Substitute Hybrid Lease, unless,after giving effect to thetransfer of suchProperty,Mortgage LoanorHybrid Leaseto the relatedIssuer, either (i) aMaximum Property Concentrationis not exceeded, or (ii) if, prior to such substitution, an existingMaximum Property Concentrationis already exceeded, the addition of suchQualified Substitute Property,Qualified Underlying Property,Qualified Substitute Hybrid LeaseorQualified Substitute Loanwill reduce theMaximum Property Concentrationor suchMaximum Property Concentrationwill remain unchangedafter giving effect to suchsubstitution. In addition, noexchangeof aProperty,LeaseorMortgage Loanto a third party or to aSTORE SPEmay occur if anEarly Amortization Periodwould occur as a result of suchexchange. In the event thatReleased Propertiesin an amount greater than 25% of theAggregate Collateral Valueare released, theProperty Managerwill use best efforts to invest the related excessRelease Pricein theRelease Accountto purchaseQualified Substitute Propertiesinexchangefor suchReleased Assets;provided, in the event theProperty Manageris not able to purchaseQualified Substitute Propertiesinexchange, after 12 months, the proceeds will be required to be paid toNoteholdersin accordance with thisAgreement. Notwithstanding the foregoing, a sale, substitution orexchangepursuant to any of Sections2.03, 3.15, 7.02, 7.03, 7.05, 7.06, 7.07, 7.08, 7.09 or 7.10 shall not be taken into consideration for purposes of the maximum limitations set forth in the first sentence of this Section7.01(a).
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(b) In the event that anyIssuerelects to substitute one or moreQualified Substitute Properties,Qualified Substitute Hybrid LeasesorQualified Substitute Loanspursuant to this Section7.01, theProperty Managershall require suchIssuerto deliver to theCustodianall documents as specified in the definition of “Lease File” or “Loan File,” as applicable, in Section1.01with respect to eachQualified Substitute Property.Qualified Substitute Hybrid LeaseorQualified Substitute Loanin accordance with thisAgreement.Monthly Lease Paymentsdue with respect toQualified Substitute PropertiesandQualified Substitute Hybrid LeasesandMonthly Loan Paymentsdue with respect toQualified Substitute Loansin the month of substitution shall not be part of theCollateraland will be retained by theProperty Managerand remitted by theProperty Managerto suchIssueron the next succeedingPayment Date. For the month of substitution, theAvailable AmountshallincludetheMonthly Lease Paymentdue on theLeasefor theRemoved PropertyandMonthly Loan Paymentdue on theMortgage Loanfor theRemoved Loanfor such month and, thereafter, the applicableIssuerdesignee shall be entitled to retain all amounts received in respect of suchLeaseorMortgage Loan. On or prior to the effective date of any such substitution, theProperty Managershall deliver to theCustodianand eachIssueran amendedOwned Property Scheduleand an amendedMortgage Loan Schedulereflecting the addition to theCollateralof each newQualified Substitute Propertyand relatedLease,Qualified Substitute Hybrid LeaseandQualified Substitute Loanand the removal from theCollateralof eachRemoved Propertyand relatedLeaseandRemoved Loan. Upon such substitution, eachQualified Substitute Property,Qualified Substitute Hybrid LeaseandQualified Substitute Loanshall be subject to the terms of thisAgreementin all respects, and the applicableIssuershall be deemed to have made the representations and warranties contained in Section 2.20 of theIndenturewith respect to eachQualified Substitute Property, Section 2.21 of theIndenturewith respect to eachQualified Substitute Loanand Section 2.20, Section 2.21 and Section 2.22 with respect to eachQualified Substitute Hybrid Lease, as applicable, and the applicableIssuershall deliver to theCustodiana certificate in the form of Exhibit G attached hereto certifying to theCustodianthat such exceptions as have been proposed by theProperty Manageror theIssuersare materially consistent with the underwriting criteria for existingPropertiesandMortgage Loans.
(c) EachIssuershall effect such substitution by having eachQualified Substitute Property, which mayinclude Replacement Propertiesacquired by anIssuerpursuant to aMaster Exchange Agreement, andOwned Propertyrelating to eachQualified Substitute Hybrid Leasedeeded (or, with respect toQualified Substitute Properties, having the leasehold interest in theground leasetherein assigned) orQualified Substitute Loanandloancomponent of eachQualified Substitute Hybrid Leaseassigned to suchIssuerand distributing or otherwise transferring theRemoved PropertyorRemoved Loanto its members and delivering to and depositing with theCustodian(i) the deed (or assignment ofGround Lease), if applicable, and any other transfer documents transferring suchQualified Substitute Property(or leasehold interest in theground lease),Qualified Substitute Hybrid LeaseorQualified Substitute Loanto suchIssuer, (ii) the deed (or assignment ofGround Lease), if applicable, and any other transfer documents transferring suchRemoved Property(or leasehold interest in theground lease) orRemoved Loanto suchIssuer’s members, or the entity purchasing theRemoved PropertyorRemoved Loan, (iii) theLease Filesfor suchQualified Substitute PropertiesorQualified Substitute Hybrid LeasesorLoan Filesfor suchQualified Substitute Loan, in each case, together withOpinions of Counsel, all of which shall meet theLease FileorLoan Filerequirements for suchQualified Substitute Property,Qualified Substitute Hybrid LeaseorQualified Substitute Loan, and (iv) anOfficer’s Certificatecertifying that all of the taxes (includingtransfer taxes with respect toQualified Substitute PropertyorQualified Substitute Hybrid Lease) in connection with the acquisition of theQualified Substitute Property,Qualified Substitute Hybrid LeaseorQualified Substitute Loanand the transfer of theRemoved PropertyorRemoved Loanhave been paid.
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(d) Upon receipt of anOfficer’s Certificatefrom theProperty Manageror the applicableIssuerto the effect that all requirements with respect to any substitution pursuant to the foregoing terms of this Section7.01have been satisfied, whichOfficer’s Certificateshall be furnished by theProperty Managerupon becoming appropriate, andupon which the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify, (i) theIndenture Trusteeshall release or cause to be released to suchIssuer’s designee the relatedLease Filefor theRemoved PropertyorLoan Filefor theRemoved Loanand (ii) each of theIndenture Trustee, theCollateral Agentand suchIssuershall execute and deliver such instruments of release, transfer or assignment, in each case without recourse, as shall beprovidedto it and are reasonably necessary to vest in suchIssuer’s designee the ownership of theRemoved Propertyand the relatedLeaseor theRemoved Loanand to release anyMortgageor other lien or security interest in suchRemoved Propertyor the relatedLeaseor theRemoved Loan. In connection with any such release or transfer, theSpecial Servicershall deliver the relatedServicing Fileto suchIssuer’s designee. Simultaneously with any substitution made pursuant to this Section7.01, suchIssuershall distribute theRemoved Property and Leaseor theRemoved Loanto its members or transfer theRemoved PropertyandLeaseor theRemoved Loanto a third party purchaser.
(e) AnyRelease Pricereceived by the applicableIssuerin connection with the release of aReleased PropertyorReleased Loanpursuant to this Section7.01or the other terms and provisions of thisAgreementshall first be deposited into theRelease Accountand, after payment of any unreimbursedExtraordinary Expenses,Advances(plusAdvance Interestthereon) andEmergency Protection Expensesrelated to suchReleased PropertyorReleased Loanand the expenses related to such release, shall either (i) be applied by suchIssuerto acquire aQualified Substitute Property,Qualified Substitute Hybrid LeaseorQualified Substitute Loan, as applicable, within twelve months following the related release or (ii) be deposited asUnscheduled Proceedsinto theCollection Accountto be paid asUnscheduled Principal Paymentson the relatedPayment Date. Any amounts remaining in theRelease Accountrelated to such aReleaseand following such twelve month period will be transferred asUnscheduled Proceedsinto theCollection Accountand applied asUnscheduled Principal Paymentson the followingPayment Date. Notwithstanding the foregoing, during the continuance of anEarly Amortization Period, all amounts on deposit in theRelease Accountwill be transferred asUnscheduled Proceedsinto theCollection Accountand applied asUnscheduled Principal Payments, after payment ofCollateral Pool Expensesin accordance with Section 2.11(b) of theIndenture, on thePayment Datefollowing the occurrence of suchEarly Amortization Period.
(f) Noexchangeof aPropertymay occur if anEarly Amortization Periodwould commence as a result of suchexchange.
(g) In certain cases, aQualified Substitute Propertymay be added to theCollateral Poolprior to the removal of the relatedExchanged Asset. In addition, aQualified Substitute Propertymay be added to theCollateral Poolprior to the payment of the relatedRelease Price, so long as all of the requirements set forth in this Section7.01are completed.
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Section 7.02 Sale Pursuant toThird Party Purchase Option.
(a) If anyPersonshall exercise itsThird Party Purchase Optionprior to theRated Final Payment Date, the applicableIssuershall, simultaneously with the transfer of the applicablePropertypursuant to theThird Party Purchase Option, deposit theThird Party Option Priceinto theRelease Account, and upon receipt of anOfficer’s Certificatefrom theProperty Manageror theIssuersto the effect that such deposit has been made (which theProperty Managershall deliver to theIndenture Trusteeand theIssuerspromptly upon such deposit being made andupon which Officer’s Certificate the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify), theIndenture Trusteeshall release to suchIssueror its designee the relatedLease Fileand execute and deliver such instruments of release, transfer or assignment, in each case without recourse, that shall beprovidedby suchIssueror theProperty Managerand reasonably necessary to release the subjectMortgageand the other liens and security interests in suchPropertyand the relatedLease.
(b) After such release, the releasedPropertyshall not be deemed to be aProperty(except for the purposes of obligations under the Transaction Documents that are expresslyprovidedto survive repayment in full of theNotesand satisfaction of theMortgage).
Section 7.03 Transfer ofLeaseto New Property.
In the event a Tenant under a Lease requests that such Lease be modified to apply to a different Property (the “Lease Transfer Property”) owned by such Tenant or substituted for a Lease on a different Property owned by such Tenant, the related Issuer may, with the approval of the Property Manager or the Special Servicer, as applicable, to the extent permitted under the subject Lease or imposed by the Property Manager, approve such transfer. Each of the Property Manager, the Special Servicer and the applicable Issuer has covenanted that it will not give its consent to a transfer unless: (i) the substituted property is a Qualified Substitute Property; (ii) all Advances, Extraordinary Expenses and Emergency Property Expenses related to the Property being transferred are reimbursed; and (iii) such Lease will not be treated as a new Lease but instead will be treated as a modification of the original Lease. Such Qualified Substitute Property will be included in the Collateral Pool and pledged to the Indenture Trustee to secure the Notes. Upon the Indenture Trustee’s receipt of an Officer’s Certificate from the Property Manager or the Special Servicer to the effect that such modification or substitution has been completed in accordance with the terms hereof (which shall include a certification that such Issuer has executed and delivered a Mortgage with respect thereto to the Indenture Trustee) and that the Required Conditions have been satisfied (upon which Officer’s Certificate the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify) the Indenture Trustee shall execute and deliver such instruments of release, transfer or assignment, in each case without recourse, as shall be provided to it by such Issuer and are reasonably necessary to release any lien or security interest in the original Property and related Lease, whereupon such original Property shall be free and clear of the lien of the Indenture and any Mortgage and the other Transaction Documents. Any proceeds of such sale, transfer or other disposition shall not constitute part of the Collateral and shall not be deposited in the Collection Account or the Release Account.
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Section 7.04 Release of Property by anIssuer.
(a) The applicableIssuershall have the right to have released from the lien of the relatedMortgageand theIndentureanyPropertyand relatedLeases(including Hybrid Leases) orMortgage Loan(following such release, a “Released Loan” or “Released Property”, as applicable) by depositing in theRelease Accountan amount equal to theRelease Pricein immediately available funds for theReleased PropertyorReleased Loanand satisfying theRequired Conditions. Upon theIndenture Trustee’s receipt of anOfficer’s Certificateby the applicableIssuerorProperty Managercertifying that allRequired Conditionshave been satisfied, theIndenture Trusteeshall release to suchIssueror its designee the relatedLease FileorLoan Fileand execute and deliver such instruments of release, transfer or assignment, in each case without recourse, that shall beprovidedto it by suchIssuerand are reasonably necessary to release anyMortgageor other lien or security interest in suchPropertyand the relatedLeaseorMortgage Loan.
(b) After giving effect to arelease pursuant to this Section7.04, (i) the sum of theCollateral Valueof allReleased AssetsandExchanged Assetsreleased or exchanged since theInitial Closing Dateshall not exceed 35% of theAggregate Collateral Value(measured as of the most recentIssuance Date); and (ii) the sum of theCollateral Valueof allReleased Assetsreleased since theInitial Closing Dateby paying theRelease Price, solely to the extent suchRelease Pricewas applied to any of theNotesasUnscheduled Principal Payments, shall not exceed 25% of theAggregate Collateral Value(as measured as of the most recentIssuance Date);provided, after each of the Series 2013-1 Notes, the Series 2013-2 Notes, the Series 2013-3 Notes, the Series 2014-1 Notes, the Series 2015-1 Notes and the Series 2016-1 Noteshave been repaid in full, in connection with the issuance of each subsequentSeries of Notes, the limitations described in sentenceparagraphmay be reset such that (i) the sum of theCollateral Valueof theExchanged AssetsorReleased Assets, as applicable, will reflect the aggregateExchanged AssetsorReleased Assetsexchanged or released since the priorIssuance Dateand (ii) the maximum percentages of theCollateral Poolthat may be exchanged or released may be subject to change;providedfurther that in connection with each issuance and the changes described in this sentence, theRating Conditionhas been satisfied. Notwithstanding the foregoing, a sale, substitution orexchangepursuant to any of Sections2.03, 3.15, 7.02, 7.03, 7.05 or 7.06 shall not be taken into consideration for purposes of this Section7.04(b).
(c) No sale of aPropertyorMortgage Loanto a third party or to aSTORE SPEmay occur if anEarly Amortization Periodwould occur as a result of such purchase.
Section 7.05 Terminated Lease PropertyandREO Property.
An Issuer may remove a Terminated Lease Property or REO Property from the Collateral Pool in exchange for the addition of one or more Qualified Substitute Properties to the Collateral Pool pursuant to the provisions of Section 7.01.
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Section 7.06 Risk-Based orCredit RiskSubstitution.
Each applicable Issuer may (A) with respect to a Lease other than a Hybrid Lease, remove a Property from the Collateral Pool in exchange for the addition of one or more Qualified Substitute Properties to the Collateral Pool, (B) remove a Hybrid Lease in exchange for one or more Qualified Substitute Hybrid Leases or Qualified Substitute Properties, and (C) solely with respect to (iv) below, remove a Mortgage Loan from the Collateral Pool in exchange for the addition of one or more Qualified Substitute Loans or Qualified Substitute Properties to the Collateral Pool; pursuant to the provisions of Section 7.01 provided that either: (i) the remaining term to maturity of the related Lease is less than five (5) years from the date of the proposed substitution and the Property Manager, in accordance with the Servicing Standard, determines that there is a reasonable risk of non-renewal of such Lease (“Non-Renewal Risk”); (ii) based on written communications from the Tenant under such Lease, the Property Manager, in accordance with the Servicing Standard, determines that there is a Non-Renewal Risk; (iii) such Issuer has received from the Tenant under the Lease for such Property written notice of the non-renewal of such Lease; or (iv) the Property Manager, in accordance with the Servicing Standard, determines that there is a credit risk or risk of default by the Tenant under such Lease or the Borrower under such Mortgage Loan, as applicable, that could reasonably be likely to result in shortfalls to Noteholders in the Priority of Payments (“Credit Risk” and any substitution related to clauses (i), (ii), (iii) or (iv), collectively, a “Risk-Based Substitution”). In addition, the Property Manager or the applicable Issuer shall provide to the Indenture Trustee an explanation of the Non-Renewal Risk or Credit Risk, including, if applicable, a copy of any written communication from the Tenant or Borrower related to such Non-Renewal Risk or Credit Risk, as well as a summary description of the anticipated Qualified Substitute Property, Qualified Substitute Hybrid Lease or Qualified Substitute Loan, as applicable.
Section 7.07 Disposition Period.
During the Disposition Period, the Property Manager will be required to utilize efforts consistent with the Servicing Standard to cause all of the Leases, Properties and Mortgage Loans to be released from the Collateral Pool prior the Rated Final Payment Date by receiving payment of the Release Price for such Properties through the sale of such Properties to a third party or to a STORE SPE.
Section 7.08 Qualified Deleveraging Event.
In connection with an Early Refinancing Prepayment as permitted pursuant to the terms of any applicable Series Supplement, an Issuer may release Owned Properties, Hybrid Leases or Loans with an aggregate Allocated Loan Amount not to exceed the Qualified Release Amount;provided, however, the sum of the Collateral Value of such Released Assets, combined with all Released Assets released since August 23, 2012 by paying the Release Price, shall not exceed 35% of the Aggregate Collateral Value (measured as of the most recent Issuance Date);provided further, the release of such Released Assets (i) shall not trigger an Indenture Event of Default or Early Amortization Period (including but not limited to the Issuers’ obligations to maintain the 3-month Average DSCR), (ii) shall result in the Rating Condition being satisfied; (iii) shall not cause a Maximum Property Concentration to be exceeded (or if, prior to such release, an existing Maximum Property Concentration is already exceeded, the release of such Owned Properties will reduce the Maximum Property Concentration or such Maximum Property Concentration will remain unchanged after giving effect to such release) and (iv) shall not cause the Weighted Average Unit FCCR of the properties remaining in the Collateral Pool to be less than the Weighted Average Unit FCCR of the Collateral Pool prior to such release. Notwithstanding the foregoing, an exchange or sale of a Hybrid Lease, Loan or Property in connection with a Collateral Defect, Terminated Lease Properties, sales pursuant to the exercise of Third Party Purchase Options, Lease Transfer Properties, Risk-Based Substitutions or sales during the Disposition Period shall not be taken into consideration for purposes of the 35% maximum described in the prior sentence. In addition, after each of the Series 2013-1 Notes, the Series 2013-2 Notes, the Series 2013-3 Notes, the Series 2014-1 Notes, the Series 2015-1 Notes and the Series 2016-1 Notes have been repaid in full, for any release of Owned Properties, Hybrid Leases or Loans in connection with a Qualified Deleveraging Event, (i) no Make Whole Amount shall be due with respect to such release and (ii) the Released Assets in connection with such release shall not be counted toward the calculation of all Released Assets subject to the 35% limitation described above.
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Section 7.09 Series Collateral Release.
(a) Subject to any additional requirements set forth in any applicable Series Supplement, theIssuermay remove aPropertyfrom theCollateral Poolin connection with aSeries Collateral Release. AnySeries Collateral Release Pricereceived on aSeries Collateral Releaseshall be deposited into theCollection Accountand applied by theIndenture Trusteeon the date of suchSeries Collateral Release, at the direction of theIssuers, (A) to repay certain outstandingNotesas designated by theIssuers, in whole or in part, in accordance with Section 7.01 of theIndentureand/or (B) asUnscheduled Proceeds.
(b) After such release, the releasedPropertyshall not be deemed to be aProperty(except for the purposes of obligations under the Transaction Documents that are expresslyprovidedto survive repayment in full of theNotesand satisfaction of theMortgage).
(c) NoSeries Collateral Releaseshall occur unless (i) theRating Conditionis satisfied, (ii) noEarly Amortization Periodwill occur following suchSeries Collateral Releaseand (iii) theSeries 2013-1 Notes, theSeries 2013-2 Notes, theSeries 2013-3 Notes, theSeries 2014-1 Notes, theSeries 2015-1 Notes, theSeries 2016-1 Notesand theSeries 2018-1 Notes have been redeemed in full.
(d) AnySeries Collateral Release Pricesthat are required to be transferred from theCollection Accountto theRelease Accountpursuant to theIndentureshall be treated as “Release Price” and applied in accordance with Section3.05(b).
(e) After each of theSeries 2013-1 Notes, theSeries 2013-2 Notes, theSeries 2013-3 Notes, theSeries 2014-1 Notes, theSeries 2015-1 Notes, theSeries 2016-1 Notesand theSeries 2018-1 Notes have been redeemed in full, releases in connection with aQualified Deleveraging Eventand releases in connection with aSeries Collateral Releaseshall not be taken into consideration for the purposes of the limitations set forth in Sections7.01(a)or 7.04(b).
(f) In connection with a release ofPropertiesorLoanspursuant to Section7.11(a), upon theIndenture Trustee’s receipt of anOfficer’s Certificateby the applicableIssuerorProperty Manager,upon which the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify, certifying that all conditions set forthhereinhave been satisfied,upon which the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify, theIndenture Trusteeshall release to suchIssueror its designee the relatedLease FileorLoan Fileand execute and deliver such instruments of release, transfer or assignment, in each case without recourse, that shall beprovidedto it by suchIssuerand are reasonably necessary to release anyMortgageor other lien or security interest in suchPropertyand the relatedLeaseorLoanfrom the lien of theIndenture.
Section 7.10 Like-Kind Exchange. In accordance with the terms of the applicableMaster Exchange Agreement, the following restrictions shall apply:
(a) Property Managershall instruct theIndenture Trusteeto, and theIndenture Trusteeshall, establish and maintain theExchange Account, in the name of theQualified Intermediarythat shall be administered and operated asprovidedin theMaster Exchange Agreementand theEscrow Agreement. TheExchange Accountshall be anEligible Account. If theExchange Accountis not maintained in accordance with this Section7.10, and theIndenture Trusteehas received written notice thereof pursuant to Section 2.03(iii) of theEscrow Agreement, then theIndenture Trusteeand theQualified Intermediaryshall establish a newExchange Accountthat complies with this Section7.10and transfer into the newExchange Accountall funds from the non-qualifyingExchange Account. The funds held in theExchange Accountmay be held as cash or invested inPermitted Investmentsin accordance with theEscrow Agreement.
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(b) Subject to the limitations set forth in Section7.01(a), eachIssuershall have the right to have released from the lien of the relatedMortgageand theIndentureaReleased Propertyfor the purposes of consummating anExchangein accordance with the terms of theMaster Exchange Agreement. In connection with a release ofPropertiesorLoanspursuant to this Section7.09(a), upon theIndenture Trustee’s receipt of anOfficer’s Certificateby the applicableIssueror theProperty Managercertifying that all conditions set forthhereinhave been satisfied,upon which the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify, theIndenture Trusteeshall release to suchIssueror its designee, which mayincludetheQualified Intermediary, the relatedLease Fileand execute and deliver such instruments of release, transfer or assignment, in each case without recourse, that shall beprovidedto it by suchIssuerand are reasonably necessary to release anyMortgageor other lien or security interest in suchPropertyand the relatedLeasefrom the lien of theIndenture.
(c) AnyReplacement Propertyacquired by anIssuerpursuant to theMaster Exchange Agreementshall satisfy the criteria set forth in the definition of “Qualified Substitute Property”.
(d) NoIssuermay transfer aReleased Propertyto theQualified Intermediarypursuant to this Section and theMaster Exchange Agreementunless:
(i) noEarly Amortization PeriodorDSCR Sweep Periodhas occurred and is continuing or would result from the making of such transfer;
(ii) theTermination Datehas not occurred and is not then in effect;
(iii) STORE Capitalhas deposited the relatedExchange Cash Collateralpursuant toSection7.11;
(iv) theRequired Conditionshave been satisfied; and
(v) the representations and warranties of theQualified Intermediaryin theMaster Exchange Agreementare true and correct on and as of the date of such transfer with the same effect as though made on and as of such date.
(e) TheRelinquished Property Proceedsdeposited into theExchange Accountin connection with the sale or disposition of aRelinquished Propertyshall be an amount equal to or greater than theFair Market Valueof suchRelinquished Property.
(f) Relinquished Property Proceedstransferred from theExchange Accountto theRelease Accountpursuant to theEscrow Agreementshall be applied in accordance with Section3.05(b).
(g) In no event shall funds in theRelease Account, theCollection Accountor theExchange Reserve Accountor any other funds that are subject to the lien of theIndenturebe utilized asAdditional Subsidiesfor the purposes of acquiring aReplacement Propertypursuant to theMaster Exchange Agreement. In no event shallSTORE Capitaldirectly deposit anyAdditional Subsidiesinto theExchange Account;provided, thatSTORE Capitalmay elect to make a capital contribution to the applicableIssuerand cause suchIssuerto deposit such amounts into theExchange AccountasAdditional Subsidies.
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(h) For the avoidance of doubt, theIndenture Trusteeshall not have the benefit, directly or indirectly, of a lien on any amounts on deposit in theExchange Account.
(i) AnyReplacement Propertyacquired by anIssuerpursuant to theMaster Exchange Agreementshall constituteCollateraland become subject to the lien of theIndenturein accordance with the terms thereof.
To the extent that the Master Exchange Agreement or the Escrow Agreement requires the Property Manager or any Issuer to provide written instruction to the Escrow Agent directing the transfer of Relinquished Property Proceeds from the Exchange Account to the Release Account, the Property Manager or such Issuer, as applicable, shall promptly deliver such written instruction in accordance with the terms of the Master Exchange Agreement and the Escrow Agreement; provided, that in no event shall Additional Subsidies be transferred from the Exchange Account to the Release Account.
Section 7.11 Exchange Reserve Account.
(a) In connection with anyExchange Programestablished pursuant to aMaster Exchange Agreement,Property Managershall instruct theIndenture Trusteeto, and theIndenture Trusteeshall, establish and maintain a segregated account in the name of theIndenture Trustee(the “Exchange Reserve Account”). TheExchange Reserve Accountshall be anEligible Account. Initially, theExchange Reserve Accountbank shall be Citibank, N.A. If theExchange Reserve Accountis not maintained in accordance with this Section7.11, then theProperty Managershall, within five (5)Business Daysof obtaining knowledge of such fact, provide written notice to theIndenture Trustee, and, upon receipt of such notice, theIndenture Trusteeshall establish a newExchange Reserve Accountthat complies with this Section7.11and transfer into the newExchange Reserve Accountall funds from the non-qualifyingExchange Reserve Account. With respect to each suchExchange,STORE Capitalshall deposit or cause to be deposited into theExchange Reserve Account,Exchange Cash Collateralin accordance with this Section7.11. Proceeds received in connection with the sale of anExcluded Assetmay, inSTORE Capital’s discretion, be transferred to theExchange Account;provided, however, that unless suchExcluded Assethas been added to theCollateral Poolas aQualified Substitute Property,STORE Capitalshall not be required to make an equivalent deposit into theExchange Reserve Accountfor anyExcluded Assetwhose sale proceeds have been deposited into theExchange Account.
(b) If on anyDetermination Date, in connection with a transfer of aReleased Propertyto theQualified Intermediarypursuant to Section7.10and the applicableMaster Exchange Agreement(i) there areRelinquished Property Proceedsin theExchange Accountor (ii) there will beRelinquished Property Proceedsin theExchange Account after giving effect to suchtransfer (at any time, the amount deposited into theExchange Account, the “Exchange Amount”), in each caseSTORE Capitalshall deposit an equivalent amount into theExchange Reserve Account(any such amounts deposited into theExchange Reserve Account, the “Exchange Cash Collateral”).
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(c) At any time that theExchange Amountsare reduced to zero, theIndenture Trusteeshall transfer all of theExchange Cash CollateraltoSTORE Capital;provided, thatSTORE Capitalhas delivered anOfficer’s Certificateto theIndenture Trustee,upon which the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify, certifying that theExchange Amountshave been reduced to zero;provided, further that if anEarly Amortization Periodis in effect, all amounts on deposit in theExchange Reserve Accountshall be immediately transferred asUnscheduled Proceedsto theCollection Accountand applied asUnscheduled Principal Paymentson thePayment Datefollowing the commencement of suchEarly Amortization Period.
(d) On or before anyRequired Transfer Instruction Date, theProperty Manageror theSpecial Servicershall deliver a notice to theIndenture Trustee,upon which the Indenture Trustee shall be permitted to fully rely and shall have no liability for so relying without any obligation to confirm or verify, stating theRequired Transfer Instruction Dateand the amount ofRelinquished Property Proceedsthat are required to be transferred from theExchange Accountto theRelease Accountpursuant to the terms of the applicableMaster Exchange Agreementand theEscrow Agreement. If suchRelinquished Property Proceedsare not deposited into theRelease Accounton or before the third (3rd)Business Dayfollowing suchRequired Transfer Instruction Date(suchRelinquished Property Proceeds, the “Delayed Proceeds”), an amount equal to the lesser of (i) suchDelayed Proceedsand (ii) the then-current amount ofExchange Cash Collateralwill be transferred from theExchange Reserve Accountto theCollection Accountand treated asUnscheduled Proceeds(the date of such transfer, the “Exchange Reserve Transfer Date”).
(e) If, following theExchange Reserve Transfer Date, the relatedDelayed Proceedsare transferred from theExchange Accountto theRelease Account, and anEarly Amortization Periodis not then in effect, the amount of suchDelayed Proceedswill be reduced by the amount of suchExchange Cash Collateral(such amount as reduced, the “Adjusted Delayed Proceeds”) and (i) suchAdjusted Delayed Proceedswill remain in theRelease Accountand (ii) the excess of the amounts of suchDelayed Proceedsover theAdjusted Delayed Proceedswill be remitted toSTORE Capital. For the avoidance of doubt, if anEarly Amortization Periodis in effect, allDelayed Proceedsdeposited into theRelease Accountshall immediately be transferred to theCollection Accountand treated asUnscheduled Proceeds.
Section 7.12 Triple A Release Event
Notwithstanding anything to the contrary herein, if any Triple A Notes are Outstanding on their related Triple A Release Date, the Property Manager shall use commercially reasonable efforts to sell Hybrid Leases, Loans and/or Owned Properties in an amount equal to 25% of the Aggregate Collateral Value, taking into account the aggregate Collateral Value of all Released Assets released since the Initial Closing Date. Any Release Price collected in connection with a Triple A Release Event shall be deposited as Unscheduled Proceeds into the Collection Account and shall be included in the Available Amount on the following Payment Date.
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ARTICLE VIII
TERMINATION
Section 8.01 Termination.
The respective obligations and responsibilities under this Agreement of the Property Manager, the Special Servicer, the Back-Up Manager and each Issuer shall terminate upon the satisfaction of the indebtedness evidenced by the Notes, whereupon the Indenture Trustee shall execute and deliver to the Issuers such instruments of release, transfer or assignment, in each case without recourse, as shall be provided to it by the Issuers and reasonably necessary to release any lien or security interest in the subject Mortgage Loans, Properties and Leases.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Amendment.
Subject to the provisions of the Indenture governing amendments, supplements and other modifications to this Agreement, this Agreement may be amended by the parties hereto from time to time but only by the mutual written agreement signed by the parties hereto. The Property Manager shall furnish to each party hereto and to each Issuer a fully executed counterpart of each amendment to this Agreement.
The parties hereto agree that no modifications or amendments will be made to the Indenture, any Series Supplement or other Transaction Documents without the consent of the Property Manager, the Special Servicer or the Back-Up Manager, as applicable, if such person would be materially adversely affected by such modification or amendment, regardless of whether such person is a party to such agreement.
Section 9.02 Counterparts.
This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed to be an original whether delivered in physical or electronic form, and all such counterparts shall constitute but one and the same instrument.
Section 9.03 Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 9.04 Notices.
All notices, requests and other communications hereunder shall be in writing and, unless otherwise provided herein, shall be deemed to have been duly given if delivered by courier or mailed by first class mail, postage prepaid, or if transmitted by facsimile and confirmed in a writing delivered or mailed as aforesaid, to:
(a) in the case of theProperty Managerand theSpecial Servicer, 8501 E.8377 E. Hartford Drive, Suite 100, Scottsdale, Arizona 85255,facsimile number: 480-256-1101;
(b) in the case of anyIssuer,8377 E. Hartford Drive, Suite 100, Scottsdale, Arizona 85255,facsimile number: 480-256-1101, or such address asprovidedin anyJoinder Agreement;
(c) in the case of theIndenture Trustee,388 Greenwich Street, New York, New York 10013, Attention: Global Transaction Services-STORE Master Funding; facsimile number: 212-816-5527;
(d) in the case of the applicable Rating Agency, Standard & Poor’sRating Services, a division of The McGraw-Hill Companies, Inc., 55 Water Street, 41st floor, New York, New York 10041-0003, Attention: ABS Surveillance Group- Structured Credit; and
(e) in the case of theBack-Up Manager, KeyBank National Association, 11501 Outlook St., Suite 300, Overland Park, KS 66211, Attention: W. Todd Reynolds;
or, as to each such Person, to such other address and facsimile number as shall be designated by such Person in a written notice to parties hereto. Any notice required or permitted to be delivered to a holder of Issuer Interests or Notes shall be deemed to have been duly given if mailed by first class mail, postage prepaid, at the address of such holder as shown in the register maintained for such purposes under the applicable Limited Liability Company Agreement and the Indenture, respectively. Any notice so mailed within the time prescribed in this Agreement shall conclusively be presumed to have been duly given, whether or not such holder receives such notice.
Section 9.05 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.
Section 9.06 Effect of Headings and Table of Contents.
The article and section headings and the table of contents herein are for convenience of reference only and shall not limit or otherwise affect the construction hereof.
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Section 9.07 Notices to the Rating Agencies and Others.
(a) TheIndenture Trusteeshall promptly provide notice to the applicable Rating Agency with respect to each of the following of which theIndenture Trusteehas actual knowledge:
(i) any material change oramendmentto thisAgreement;
(ii) the occurrence of anyServicer Replacement Eventthat has not been cured; and
(iii) the resignation or termination of theProperty Manageror theSpecial Servicerand the appointment of a successor.
(b) TheProperty Managershall promptly provide notice to the applicable
(i) Rating Agency with respect to each of the following of which it has actual knowledge:
(ii) the resignation or removal of theIndenture Trusteeand the appointment of a successor;
(iii) any change in the location of theCollection Account;
(iv) any change in the identity of aTenantorBorrower; and
(v) any addition or removal of aMortgage LoanorPropertyfrom theCollateral.
(c) Each of theProperty Managerand theSpecial Servicer, as the case may be, shall furnish the applicable Rating Agency such information with respect to theMortgage Loans,LeasesandPropertiesas such Rating Agency shall reasonably request and that theProperty Manageror theSpecial Servicer, as the case may be, can reasonably provide.
(d) Each of theProperty Managerand theSpecial Servicer, as the case may be, shall promptly furnish the applicable Rating Agency and theIssuerswith copies of the following items:
(i) each of its quarterly statements as to compliance described in Section3.11; and
(ii) each report prepared by it pursuant to Section 4.01. 102
(e) AnyOfficer’s Certificate,Opinion of Counsel, report, notice, request or other material communication prepared by theProperty Manager, theSpecial Servicer,eachIssuer, theIssuer Memberson behalf of theIssuers, or theIndenture Trustee, or caused to be so prepared, for dissemination to any of the parties to thisAgreementor any holder ofNotesorIssuer Interestsshall also be concurrently forwarded by suchPersontoSTORE Capital, theIssuersand theInitial Purchasersto the extent not otherwise required to be so forwarded. AnyOfficer’s Certificatedelivered under thisAgreementor any otherTransaction Documentshall be deemed to have been delivered by thePersonwhich is a party to thisAgreementwith respect to which the same was delivered, and under no circumstances shall the officer or other person executing the same have any personal liability under or in connection with anyOfficer’s Certificateexecuted by it.
105
Section 9.08 Successors and Assigns: Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and the respective successors and assigns of the parties hereto, and all such provisions shall inure to the benefit of each Issuer and the Noteholders. No other person, including any Tenant or Borrower, shall be entitled to any benefit or equitable right, remedy or claim under this Agreement.
Section 9.09 CompleteAgreement.
This Agreement embodies the complete agreement among the parties with respect to the subject matter hereof and may not be varied or terminated except by a written agreement conforming to the provisions of Section 9.01. All prior negotiations or representations of the parties are merged into this Agreement and shall have no force or effect unless expressly stated herein.
Section 9.10 Consent to Jurisdiction.
Any action or proceeding against any of the parties hereto relating in any way to this Agreement may be brought and enforced in the courts of the State of New York sitting in the borough of Manhattan or of the United States District Court for the Southern District of New York and each of the parties hereto irrevocably submits to the jurisdiction of each such court in respect of any such action or proceeding. Each of the parties hereto hereby waives, to the fullest extent permitted by law, any right to remove any such action or proceeding by reason of improper venue or inconvenient forum.
Section 9.11 No Proceedings.
Each of the Property Manager and the Special Servicer hereby agrees that it shall not institute against, or join any other person or entity in instituting against, any Issuer 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 any Issuer is paid in full. The agreements in this paragraph shall survive termination of this Agreement.
Section 9.12 Cooperation.
Each party hereto and each Noteholder (by its acceptance of a Note) hereby agrees to act diligently in responding to a request made by any other party to this Agreement and agrees to reasonably cooperate with the requesting party in connection with the subject matter.
Section 9.13 Acknowledgment of Receipts byIndenture Trustee.
Upon request, within ten (10) Business Days after its receipt of any notice, document or other delivery pursuant to any Transaction Document, the Indenture Trustee shall acknowledge its receipt of the same in writing delivered to the party that delivered the same to the Indenture Trustee.
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IN WITNESS WHEREOF, the Issuers, the Property Manager and Special Servicer, the Back-Up Manager and the Indenture Trustee have caused this Agreement to be duly executed by their respective officers or representatives all as of the day and year first above written.
STORE CAPITAL CORPORATION, a Maryland corporation, as Property Manager and Special Servicer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING I, LLC, a Delaware limited liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING II, LLC, a Delaware limited liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING III, LLC, a Delaware limited liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING IV, LLC, a Delaware limited, liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING V, LLC, a Delaware limited liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING VI LLC, a Delaware limited liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING VII LLC, a Delaware limited liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel | |
STORE MASTER FUNDING XIV LLC, a Delaware limited liability company, as Issuer | ||
By: | /s/Chad A. Freed | |
Name: | Chad A. Freed | |
Title: | Executive Vice President - General Counsel |
Sixth A&R Property Management Agreement (STORE 2019-1)
CITIBANK, N.A., not in its individual capacity but solely as Indenture Trustee | ||
By: | /s/ James Polcari | |
Name: | James Polcari | |
Title: | Senior Trust Officer |
Sixth A&R Property Management Agreement (STORE 2019-1)
KEYBANK NATIONAL ASSOCIATION, as Back-Up Manager | ||
By: | /s/ W. Todd Reynolds | |
Name: | W. Todd Reynolds | |
Title: | Senior Vice President |
Sixth A&R Property Management Agreement (STORE 2019-1)
EXHIBIT A
[RESERVED]
EXHIBIT A-1
EXHIBIT B-1
FORM OF REQUEST FOR RELEASE – PROPERTY MANAGER
[Date]
Citibank, N.A., not in its individual capacity
but solely as Indenture Trustee
388 Greenwich Street
New York, New York 10013
Attention: Citibank Agency & Trust-STORE Master Funding
STORE Master Funding I, LLC
STORE Master Funding II, LLC
STORE Master Funding III, LLC
STORE Master Funding IV, LLC
STORE Master Funding V, LLC
STORE Master Funding VI, LLC
STORE Master Funding VII, LLC
STORE Master Funding XIV, LLC
8377 E. Hartford Drive, Suite 100
Scottsdale, Arizona, 85255
Attention: Secretary
[ADDITIONAL ISSUERS]
[____________]
[____________]
Re: STORE Master Funding, Net-Lease Mortgage Notes
In connection with the administration of the Lease Files and Loan Files held by or on behalf of you as trustee under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 (the “Property Management Agreement”), 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, STORE Master Funding XIV, LLC, as an Issuer, the undersigned, as property manager (the “Property Manager”) and special servicer (the “Special Servicer”), KeyBank National Association, as back-up manager (the “Back-Up Manager”), and Citibank, N.A., not in its individual capacity but solely as Indenture Trustee (the “Indenture Trustee”), the undersigned as Property Manager hereby requests a release of the [Lease Files] [and] [Loan Files] (or the portion thereof specified below) held by the Custodian on behalf of the Indenture Trustee with respect to the following described [Lease] [and] [Mortgage Loan] for the reason indicated below.
[Tenant’s Name:
Address:
Lease No.:]
[Borrower’s Name:
Address:
Mortgage Loan No.:]
EXHIBIT B-1-1
If only particular documents in the [Lease File] [and] [Loan File] are requested, please specify which:
Reason for requesting [Lease File] [and] [Loan File] (or portion thereof):
1. [Lease] [Mortgage Loan] paid in full and terminated. | |||
The undersigned hereby certifies that all amounts received in connection with the [Lease] [Mortgage Loan] that are required to be deposited in the Collection Account pursuant to the Property Management Agreement, have been or will be so deposited. | |||
2. Other. (Describe) | |||
The undersigned acknowledges that the above [Lease File] [and] [Loan File] (or requested portion thereof) will be held by the undersigned in accordance with the provisions of the Property Management Agreement and will be returned to you or your designee within ten (10) days of our receipt thereof, [unless the Lease has become a Liquidated Lease, in which case the Lease File (or such portion thereof) will be retained by us permanently].
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Property Management Agreement.
STORE CAPITAL CORPORATION, | |
a Maryland Corporation, | |
as Property Manager and Special Servicer |
By: | ||
Name: | ||
Title: |
EXHIBIT B-1-2
EXHIBIT B-2
FORM OF REQUEST FOR RELEASE – SPECIAL SERVICER
[Date]
STORE Master Funding I, LLC
STORE Master Funding II, LLC
STORE Master Funding III, LLC
STORE Master Funding IV, LLC
STORE Master Funding V, LLC
STORE Master Funding VI, LLC
STORE Master Funding VII, LLC
STORE Master Funding XIV, LLC
8377 E. Hartford Drive, Suite 100
Scottsdale, Arizona, 85255
Attention: Secretary
[ADDITIONAL ISSUERS]
[____________]
[____________]
Re: STORE Master Funding, Net-Lease Mortgage Notes
In connection with the administration of the Lease Files and Loan Files held by or on behalf of you as trustee under a certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 (the “Property Management Agreement”), 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, STORE Master Funding XIV, LLC, as an Issuer, the undersigned, as property manager (the “Property Manager”) and special servicer (the “Special Servicer”), Citibank, N.A., not in its individual capacity but solely as indenture trustee (the “Indenture Trustee”), and KeyBank National Association, as back-up manager (the “Back-Up Manager”), the undersigned as Property Manager hereby requests a release of the [Lease Files] [and] [Loan Files] (or the portion thereof specified below) held by the Custodian on behalf of the Indenture Trustee with respect to the following described [Lease] [and] [Mortgage Loan] for the reason indicated below.
[Tenant’s Name:
Address:
Loan No.:]
[Borrower’s Name:
Address:
Mortgage Loan No.:]
EXHIBIT B-2-1
If only particular documents in the [Lease File] [and] [Loan File] are requested, please specify which:
Reason for requesting [Lease File] [and] [Loan File] (or portion thereof):
1. The [Tenant] [Borrower] is being evicted. | ||
2. Other. (Describe) |
The undersigned acknowledges that the above [Lease File] [and] [Loan File] (or requested portion thereof) will be held by the undersigned in accordance with the provisions of the Property Management Agreement and will be returned to you or your designee within ten (10) days of our receipt thereof, unless (i) the [Tenant] [Borrower] is being evicted, in which case the [Lease File] [and] [Loan File] (or such portion thereof) will be returned when no longer required by us for such purpose, or (ii) we deliver to the Indenture Trustee an Officer’s Certificate stating that the Lease has become a Liquidated Lease and all amounts received or to be received in connection with such liquidation that are required to be deposited into the Collection Account pursuant to Section 3.02(a) have been or will be so deposited.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Property Management Agreement.
STORE CAPITAL CORPORATION, | |
a Maryland Corporation, | |
as Property Manager and Special Servicer |
By: | ||
Name: | ||
Title: |
EXHIBIT B-2-2
EXHIBIT C-1
FORM OF NOTICE AND ACKNOWLEDGMENT OF
DESIGNATION OF REPLACEMENT SPECIAL SERVICER
[Date]
Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc.
55 Water Street
New York, New York 10041
Re: STORE Master Funding, Net-Lease Mortgage Notes
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 5.06 of a certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 (the “Agreement”), 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, STORE Master Funding XIV, LLC, as an Issuer, STORE Capital Corporation, as property manager (the “Property Manager”) and special servicer (the “Special Servicer”), Citibank, N.A., not in its individual capacity but solely as indenture trustee (the “Indenture Trustee”), and KeyBank National Association, as back-up manager (the “Back-Up Manager”). Capitalized terms used but not otherwise defined herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that the [ ] has designated ________________________ to serve as the Special Servicer under the Agreement.
The designation of as Special Servicer will become final if certain conditions are met and the applicable Rating Agency delivers to the Issuers and the Indenture Trustee written confirmation that if the person designated to become the Special Servicer were to serve as such, such event would not result in the downgrade, qualification or withdrawal of the higher of (i) such Rating Agency’s then current ratings of the Notes and (ii) the rating of the Notes at the time of the original issuance thereof. Accordingly, such confirmation is hereby requested as soon as possible.
EXHIBIT C-1-1
Please acknowledge receipt of this notice by signing the enclosed copies of this notice where indicated below and returning them to each of the Issuers and the Indenture Trustee, in the enclosed stamped self-addressed envelope.
Very truly yours, | ||
as Indenture Trustee | ||
By: | ||
Name: | ||
Title: |
Receipt acknowledged:
STANDARD & POOR’S RATING SERVICES
By: | |||
Name: | |||
Title: | |||
Date: |
EXHIBIT C-1-2
EXHIBIT C-2
FORM OF ACKNOWLEDGMENT BY
PROPOSED SPECIAL SERVICER ACCEPTING APPOINTMENT
[Date]
STORE Master Funding I, LLC
STORE Master Funding II, LLC
STORE Master Funding III, LLC
STORE Master Funding IV, LLC
STORE Master Funding V, LLC
STORE Master Funding VI, LLC
STORE Master Funding VII, LLC
STORE Master Funding XIV, LLC
8377 E. Hartford Drive, Suite 100
Scottsdale, Arizona, 85255
Attention: Secretary
[ADDITIONAL ISSUERS]
[____________]
[____________]
Citibank, N.A., not in its individual capacity
but solely as Indenture Trustee
388 Greenwich Street
New York, New York 10013
Attention: Citibank Agency & Trust-STORE Master Funding
Re: STORE Master Funding, Net-Lease Mortgage Notes
Ladies and Gentlemen:
Pursuant to Section 5.06 of the Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 (the “Agreement”), 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, STORE Master Funding XIV, LLC, as an Issuer, STORE Capital Corporation, as property manager (the “Property Manager”) and special servicer (the “Special Servicer”), Citibank, N.A., not in its individual capacity but solely as indenture trustee (the “Indenture Trustee”), and KeyBank National Association, as back-up manager (the “Back-Up Manager”), the undersigned hereby agrees with all the other parties to the Agreement that the undersigned shall serve as Special Servicer under, and as defined in, the Agreement. The undersigned hereby acknowledges that, as of the date hereof, it is and shall be a party to the Agreement and bound thereby to the full extent indicated therein in the capacity of Special Servicer. The undersigned hereby makes, as of the date hereof, the representations and warranties set forth in Section 2.01 of the Agreement, with the following corrections with respect to type of entity and jurisdiction of organization: .
[NAME OF ENTITY] | ||
By: | ||
Name: | ||
Title: |
EXHIBIT C-2-1
EXHIBIT D
FORM OF LIMITED POWERS OF ATTORNEY
FROM ISSUER OR INDENTURE TRUSTEE
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to a certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 ( the “Agreement”), 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 Master Funding VII, LLC, as an Issuer, STORE Master Funding XIV, LLC, as an Issuer, STORE Capital Corporation, as property manager (the “Property Manager”) and special servicer (the “Special Servicer”), KeyBank National Association, as back-up manager (the “Back-Up Manager”), and Citibank, N.A., not in its individual capacity but solely as indenture trustee (the “Indenture Trustee”), the [Property Manager] [Special Servicer] (hereafter, the “Servicer”) administers and services certain “Mortgage Loans,” “Properties” and “Leases” as such terms are defined in the Agreement, in accordance with the terms of the Agreement and such Leases and Mortgage Loans; and,
WHEREAS, pursuant to the terms of the Agreement, the Servicer is granted certain powers, responsibilities and authority in connection with its servicing and administration subject to the terms of the Agreement; and
WHEREAS, the [RELEVANT ISSUER] [Indenture Trustee] (hereafter, the “Grantor”) has been requested by the Servicer pursuant to the Agreement to grant this Limited Power of Attorney to the Servicer to enable it to execute and deliver, on behalf of the Grantor, certain documents and instruments related to the Mortgage Loans, Properties and Leases, thereby empowering the Servicer to take such actions as it deems necessary to comply with its servicing, administrative and management duties under and in accordance with the Agreement.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
The Grantor does make, constitute and appoint STORE Capital Corporation, a Maryland corporation, its true and lawful agent and attorney in fact with respect to the Mortgage Loans, Properties and Leases held by the Grantor, in its name, place and stead, to (A) prepare, execute and deliver: (i) any and all UCC Financing Statements, continuation statements and other documents or instruments necessary to maintain the validity, enforceability, perfection and priority of the Grantor’s interest in any real property (collectively, the “Property”) and any Lease or Mortgage Loan with respect to any Property; (ii) subject to the provisions of the Agreement, any and all modifications, waivers, consents, assumptions, amendments or subordinations with respect to a Lease or Mortgage Loan or documents relating thereto; and (iii) any and all instruments necessary or appropriate for the eviction of any Tenant under a Lease or foreclosure with respect to and Mortgage Loan serviced by the Servicer and consistent with the authority granted by the Agreement; and (B) to take any and all actions on behalf of the Grantor in connection with maintaining and defending the enforceability of any such Lease obligation or Mortgage Loan, including but not limited to the execution of any and all instruments necessary or appropriate in defense of and for the collection and enforcement of said Lease obligation or Mortgage Loan in accordance with the terms of the Agreement.
EXHIBIT D-1
ARTICLE I
The enumeration of particular powers hereinabove is not intended in any way to limit the grant to the Property Manager as the Grantor’s attorney in fact of full power and authority with respect to the Mortgage Loans, Leases and Properties to execute and deliver any such documents, instrument or other writing as fully, in all intents and purposes, as Grantor might or could do if personally present. The Grantor hereby ratifies and confirms whatsoever such attorney in fact shall and may do by virtue hereof, and the Grantor agrees and represents to those dealing with such attorney in fact that they may rely upon this power of attorney until termination of the power of attorney under the provisions of Article III below. The Servicer may not exercise any right, authority or power granted by this instrument in a manner that would violate the terms of the Agreement or the Servicing Standard imposed on the Servicer by the Agreement, but any and all third parties dealing with Servicer as the Grantor’s attorney in fact may rely completely, unconditionally and conclusively on the Servicer’s authority and need not make inquiry about whether the Servicer is acting pursuant to the Agreement or such standard. Any trustee, title company or other third party may rely upon a written statement by the Servicer that any particular lease or property in question is subject to and included under this power of attorney and the Agreement.
ARTICLE II
An act or thing lawfully done hereunder by the Servicer shall be binding on the Grantor and the Grantor’s successor and assigns.
ARTICLE III
This power of attorney shall continue in full force and effect from the date hereof until the earliest occurrence of any of the following events, unless sooner revoked in writing by the Grantor:
(i) the suspension or termination of this limited power of attorney by theGrantor;
(ii) the transfer of theServicer’s servicing rights and obligations as the[Property Manager] [Special Servicer]under theAgreementfrom theServicerto anotherservicer;
(iii) the appointment of a receiver or conservator with respect to the business of theServicer;
(iv) the filing of a voluntary or involuntary petition in bankruptcy by or against theServicer; or
(v) the occurrence of aServicer Replacement Event.
EXHIBIT D-2
Nothing herein shall be deemed to amend or modify the Agreement or the respective rights, duties or obligations of the Grantor or the Servicer thereunder, and nothing herein shall constitute a waiver of any rights or remedies thereunder.
IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed and its corporate seal to be affixed hereto by its officer duly authorized as of the ____ day of _____________________________________, __________.
[STORE Master Funding I, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] | ||||
[STORE Master Funding II, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] | ||||
[STORE Master Funding III, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] |
EXHIBIT D-3
[STORE Master Funding IV, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] | ||||
[STORE Master Funding V, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] | ||||
[STORE Master Funding VI, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] |
EXHIBIT D-4
[STORE Master Funding VII, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] | ||||
[STORE Master Funding XIV, LLC, as Issuer under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||||
By: | [ISSUER MEMBER], its [ ] | ||||
By: | [_________________] | ||||
By: | |||||
Name: | |||||
Title: | ] |
[CITIBANK, N.A., not in its individual capacity but solely as Indenture Trustee under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 | |||
By: | |||
Name: | |||
Title: | ] |
EXHIBIT D-5
STATE OF | ) |
) | ss.: |
COUNTY OF | ) |
On the ___ day of __________, ______, before me, a notary public in and for said State, personally appeared ______________________, known to me to be a _____________ of [[ISSUER MEMBER] [ ], one of the entities that executed the within instrument as sole member of STORE Master Funding [I][II][III][IV][V][VI][VII][XIV], LLC], and also known to me to be the person who executed it on behalf of such entity, and acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.
Notary Public |
[Notarial Seal]
EXHIBIT D-6
EXHIBIT E
FORM OF ESTOPPEL CERTIFICATE, SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT E-1
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made as of ______________________, 201__, among CITIBANK, N.A., not in its individual capacity but solely as Indenture Trustee under the Indenture, as hereinafter defined (“Trustee”), _____________, a , (“Tenant”), and [ISSUER NAME], a Delaware limited liability company, its successors and assigns (“Landlord”).
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to a certain Lease, dated December 30, 1998, which lease and all amendments, modifications, assignments, subleases and other agreements related thereto are attached hereto as Exhibit A and incorporated herein by this reference (collectively, the “Lease”), which Lease relates to the premises described therein (the “Premises”), and
WHEREAS, Trustee is the Indenture Trustee under an Indenture dated as of even date herewith among Trustee and Landlord (the “Indenture”) pursuant to which Landlord shall issue notes or bonds in the principal amount of approximately $[ ] (the “Loan”), the Loan being secured, in part, by a mortgage, deed of trust or security deed (collectively, the “Mortgage”) and an assignment(s) of leases and rents from the Landlord to Trustee, both dated as of even date herewith and recorded concurrently herewith covering the Premises; and
WHEREAS, Tenant has agreed that the Lease shall be subject and subordinate to the Mortgage held by Trustee, provided Tenant is assured of continued occupancy of the Premises under the terms of the Lease;
NOW, THEREFORE, for and in consideration of the mutual covenants herein contained, the sum of Ten Dollars ($10.00) and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, and notwithstanding anything in the Lease to the contrary, it is hereby agreed as follows:
1. Subordination of Lease. Trustee, Tenant and Landlord do hereby covenant and agree that the Lease with all rights, options, liens and charges created thereby, is and shall continue to be subject and subordinate in all respects to the Mortgage and to any renewals, modifications, consolidations, replacements and extensions thereof and to all advancements made thereunder.
2. Non-disturbance of Tenant. Trustee does hereby agree with Tenant that, in the event Trustee becomes the owner of the Premises by foreclosure, conveyance in lieu of foreclosure or otherwise, so long as there exists no event of default under the Lease (a) Trustee will take no action which will interfere with or disturb Tenant’s possession or use of the Premises or other rights under the Lease, and (b) the Premises shall be subject to the Lease and Trustee shall recognize Tenant as the tenant of the Premises for the remainder of the terms of the Lease in accordance with the provisions thereof including, but not limited to the negotiation rights provided to Tenant under Article [_____] of the Lease, provided, however, that Trustee shall not be subject to any offsets or defenses which Tenant might have against any prior landlord except those which arose under the provisions of the Lease out of such landlord’s default and accrued after Tenant had notified Trustee and given Trustee the opportunity to cure same as hereinbelow provided, nor shall Trustee be liable for any act or omission of any prior landlord, nor shall Trustee be bound by any rent or additional rent which Tenant might have paid for more than the current month to any prior landlord nor shall it be bound by any amendment or modification of the Lease made without its consent.
EXHIBIT E-2
3. Attornment by Tenant. Tenant does hereby agree with Trustee that, in the event Trustee becomes the owner of the Premises by foreclosure, conveyance in lieu of foreclosure or otherwise, then Tenant shall attorn to and recognize Trustee as the landlord under the Lease for the remainder of the term thereof, and Tenant shall perform and observe its obligations thereunder, subject only to the terms and conditions of the Lease. In such event, Trustee shall not be liable for any act or omission of any prior landlord, liable for return of the security deposit unless same was actually delivered to Trustee, bound by any amendment or modification to or consent or waiver under or assignment of the Lease made without its consent except to the extent permitted without Trustee’s consent pursuant to the Indenture, bound by any rent paid more than thirty (30) days in advance, or be subject to any set-off or defense Tenant might have had against any prior landlord except as set forth in paragraph 2 above. Tenant further covenants and agrees to execute and deliver upon request of Trustee or its assigns, an appropriate Agreement of Attornment to Trustee and any subsequent titleholder of the Premises reflecting the maters contained in this paragraph 3.
4. Curative Rights, Modification of Lease, and Advance Payment of Rent. So long as the Mortgage remains outstanding and unsatisfied:
(a) Tenant will mail or deliver to Trustee, at the address and in the manner hereinbelow provided, a copy of all notices permitted or required to be given to the Landlord by Tenant under and pursuant to the terms and provisions of the Lease. At any time before the rights of the Landlord shall have been forfeited or adversely affected because of any default of the Landlord, or within the time permitted the Landlord for curing any default under the Lease as therein provided, Trustee may, but shall have no obligation to, pay any taxes and assessments, make any repairs and Improvements, make any deposits or do any other act or thing required of the Landlord by the terms of the Lease; and all payments so made and all things so done and performed by Trustee shall be as effective to prevent the rights of the Landlord from being forfeited or adversely affected because of any default under the Lease as the same would have been if done and performed by the Landlord.
5. Limitation of Liability. Trustee shall have no liability whatsoever hereunder prior to becoming the owner of the Premises; and Tenant agrees that if Trustee becomes the owner of the Premises, Tenant shall look solely to the estate or interest of Trustee in the Premises for satisfaction of any obligation which may be or become owing by Trustee to Tenant hereunder or under the Lease.
EXHIBIT E-3
6. Landlord and Tenant Certifications. Landlord and Tenant hereby certify to Trustee that the Lease has been duly executed by Landlord and Tenant and is in full force and effect, that the Lease and any modifications and amendments specified herein are a complete statement of the agreement between Landlord and Tenant with respect to the leasing of the Premises, and the Lease has not been modified or amended except as specified herein; that to the knowledge of Landlord and Tenant, no party to the Lease is in default thereunder; that no rent under the Lease has been paid more than thirty (30) days in advance of its due date; and that Tenant, as of this date, has no charge, lien or claim of offset under the Lease, or otherwise, against the rents or other charges due or to become due thereunder or if any such matter exists, then it is as follows:
NONE
7. Tenant Estoppel Certifications. With the knowledge that Trustee, as beneficiary of the mortgage encumbering the premises, will place substantial reliance thereon in connection with the closing and funding of the Loan, Tenant hereby makes the following certifications:
(a) The term of the Lease commenced on ______________, and will terminate on _______________, unless earlier terminated pursuant to the provisions of the Lease.
(b) The Lease, as described above, has not been modified, amended, assigned or subleased except as set forth in Exhibit A attached hereto, and is in good standing and in full force and effect.
(c) The Lease provides for rental payments over the term of the Lease, all as specifically provided in the Lease. For the first year of the lease term, monthly payments of rent in the amount of $ _________ are due on the first (1st) day of each month. Tenant has made all payments of rent due.
(d) Tenant has paid a security deposit of $ _________ under the Lease in the form of a letter of credit.
(e) To Tenant’s knowledge there are no defaults by Landlord under the Lease and there are no existing circumstances which, with the passage of time, or notice, or both, would give rise to a default under the Lease except as follows:
NONE
(f) Tenant has accepted and is occupying the Premises, and Landlord has no unperformed obligation under the Lease to construct any Improvements for the Tenant related to the Premises.
(g) Tenant has no charge, lien, claim of set-off or defense against rents or other charges due or to become due under the Lease or otherwise under any of the terms, conditions, or covenants contained therein except as follows:
NONE
EXHIBIT E-4
(h) Tenant has received no notice from any insurance company of any defects or inadequacies in the Premises or in any part thereof which would adversely affect the insurability of the Premises except as follows:
NONE
(i) Except as provided in the Lease, Tenant does not have any right or option to purchase the Premises.
(j) Except as provided in the Lease, Tenant does not have any rights or options to renew the Lease or to lease additional space in any building owned by the Landlord.
(k) Tenant’s enjoyment of the Premises has been peaceful and undisturbed and Tenant knows of no facts by reason of which possession of the Premises might be disputed or questioned, or by reason of which any claim to the Premises or any portion thereof might be asserted adversely to such possession except as follows:
NONE
(l) There are no tenancies, leases, occupancies or parties in possession of the Premises other than under the Lease except as follows:
NONE
(m) Tenant has not received any notice of any supplemental taxes and/or assessments affecting the Premises except as follows:
NONE
(n) There are no unpaid charges for taxes, water and/or sewer services, or other utility charges, or unpaid special assessments for items such as Improvements for sidewalks, curbs, gutters, sewers, storm water assessments, etc., not shown as existing liens in the public records except as follows:
NONE
(o) There are no unpaid bills or claim for labor or services performed or materials furnished or delivered during the last twelve (12) months for alterations, repair, work, or new construction on the Premises except as follows:
NONE
(p) The building or buildings located on the Premises are complete and have been paid for in full except as follows:
NONE
EXHIBIT E-5
(q) Since the date of the Survey of the Premises by ______________, of ______________________ (the “Survey”), there have been no additions, modifications or alterations to the Improvements on the Premises which have resulted in any changes to the distances between the walls of the Improvements and the lot lines shown thereon; and there have been no changes to the lot lines, nor any fences erected or free standing Improvements placed along said lot line except as follows:
NONE
(r) Each franchise agreement if any, with applicable Tenant and located on the Premises is valid and in full force and effect. Tenant has not received any notice of termination of such franchise agreement(s) from said franchisor(s) except as follows:
NONE
8. Notices. Any notice to parties required under this Agreement shall be in writing and shall be deemed duly given and received when delivered in person (with receipt therefor), on the next business day after deposit with a recognized overnight delivery service, or on the second day after being sent by certified or registered mail, return receipt requested, postage prepaid, to the following addresses:
If given to Trustee, as follows, subject to change as provided hereinabove:
Citibank, N.A., not in its individual capacity but solely as Indenture Trustee | |
388 Greenwich Street | |
New York, New York 10013 | |
Attention: Citibank Agency & Trust-STORE Master Funding | |
with a copy to: | |
and, if given to Tenant, as follows, subject to change as provided hereinabove:
with a copy to: | |
EXHIBIT E-6
and, if given to Landlord, as follows, subject to change as provided hereinabove:
[ISSUER NAME] | |
8377 E. Hartford Drive, Suite 100 | |
Scottsdale, Arizona, 85255 | |
Attention: Secretary | |
with a copy to: | DLA Piper LLP (US) [________] |
9. Miscellaneous. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, successors-in-title and assigns. When used herein, the term “Landlord” or “landlord” refers to Landlord and to any successor to the interest of Landlord under the Lease. This Agreement may be executed in any number of counterparts.
10. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provisions of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
11. Paragraph Headings: Construction. The headings of the paragraphs in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “paragraph” or “paragraphs” refer to the corresponding paragraph or paragraphs of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or term.
12. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the jurisdiction in which the Premises is located without regard to its principles of conflicts of laws, and any action brought under or arising out of this Agreement or the matters relating hereto shall be submitted to the jurisdiction of the United States District Court for such jurisdiction. Each party acknowledges and agrees to such jurisdiction.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES FOLLOW ON NEXT PAGE]
EXHIBIT E-7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
TRUSTEE: | |||||
Signed and delivered in the presence of: | CITIBANK, N.A., not in its individual capacity but solely as Indenture Trustee | ||||
By: | |||||
Witness | Name: | ||||
Title: | |||||
STATE OF | ) | ||||
) | ss.: | ||||
COUNTY OF | ) |
This instrument was acknowledged before me this ____ day of ____________, 201__ by _____________________, ________________________ of Citibank, N.A., a national association, as Indenture Trustee, on behalf of such __________.
WITNESS my hand and official seal.
[SEAL] |
Notary Public |
My commission expires: |
[SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT]
[SIGNATURES CONTINUE ON NEXT PAGE]
EXHIBIT E-8
TENANT: |
Signed and delivered in the presence of: |
a | |||
By: | |||||
Witness | Name: | ||||
Title: | |||||
STATE OF | ) | ||||
) | ss.: | ||||
COUNTY OF | ) |
This instrument was acknowledged before me this ____ day of ____________, 201__ by _____________________, ________________________ of Citibank, N.A., a national association, as Indenture Trustee, on behalf of such __________.
WITNESS my hand and official seal.
[SEAL] |
Notary Public |
My commission expires: |
[SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT]
[SIGNATURES CONTINUE ON NEXT PAGE]
EXHIBIT E-9
LANDLORD: | |||||
Signed and delivered in the presence of: | [ISSUER NAME] a Delaware limited liability company | ||||
By: | |||||
Witness | Name: | ||||
Title: | |||||
STATE OF | ) | ||||
) | ss.: | ||||
COUNTY OF | ) |
This instrument was acknowledged before me this ____ day of ____________, 201__ by _____________________, ________________________ of Citibank, N.A., a national association, as Indenture Trustee, on behalf of such __________.
WITNESS my hand and official seal.
[SEAL] |
Notary Public |
My commission expires: |
EXHIBIT E-10
EXHIBIT F
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this “Agreement”), dated as of [ ], 201[ ], is entered into by and among _______________ (the “New Issuer”), STORE CAPITAL CORPORATION, in its capacity as Property Manager and Special Servicer, as applicable, KeyBank National Association, in its capacity as Back-Up Manager and CITIBANK, N.A., not in its individual capacity but solely as Indenture Trustee (the “Indenture Trustee”), under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of [__], 2019, among STORE Master Funding I, LLC, STORE Master Funding II, LLC, STORE Master Funding III, LLC, STORE Master Funding IV, LLC, STORE Master Funding V, LLC, STORE Master Funding VI, LLC, STORE Master Funding VII, LLC, STORE Master Funding XIV, LLC, all Joining Parties, the Property Manager, the Special Servicer, the Back-Up Manager and the Indenture Trustee (as the same may be amended, modified, extended or restated from time to time, the “Property Management Agreement”). All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Property Management Agreement.
The New Issuer is a [ENTITY] established under the laws of the State of [__________] on
[_________], 201[_], operates under an [Amended and Restated] [ENTITY AGREEMENT], dated as of [______], 201[__] (the “New Issuer Agreement”).
The New Issuer, the Property Manager, the Special Servicer, the Indenture Trustee and the Back-Up Manager hereby agree as follows:
1. The New Issuer hereby acknowledges, agrees and confirms that, by its execution of this Agreement, effective as of the date hereof, the New Issuer shall become a party to the Property Management Agreement, shall be deemed to be a signatory to the Property Management Agreement and shall have all of the rights and obligations of an Issuer as specified in the Property Management Agreement. The New Issuer hereby ratifies, as of the date hereof, and agrees to be bound by, all of the applicable terms, provisions and conditions contained in the Property Management Agreement.
2. The address of the New Issuer for purposes of Section 9.04(c) of the Property Management Agreement shall be as follows:
[ADDRESS] |
Attention: |
Facsimile No. |
Witha copy to |
[ADDRESS] |
Attention: |
Facsimile No. |
EXHIBIT F-1
3. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument.
4. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Issuer, the Property Manager, the Special Servicer and the Back-Up Manager have caused this Agreement to be duly executed by their respective officers or representatives all as of the day and year first above written.
[NEW ISSUER] |
By: | ||
Name: | ||
Title: |
STORE CAPITAL CORPORATION, a Maryland corporation, as Property Manager |
By: | ||
Name: | ||
Title: |
KEYBANK NATIONAL ASSOCIATION, as Back-Up Manager |
By: | ||
Name: | ||
Title: |
CITIBANK, N.A., not in its individual capacity but solely as Indenture Trustee under that certain Sixth Amended and Restated Property Management and Servicing Agreement, dated as of [__], 2019 |
By: | ||
Name: | ||
Title: |
EXHIBIT F-2
EXHIBIT G
FORM OF CERTIFICATE UNDER SECTION 7.01(b)
Re: | [INSERT DESCRIPTION OF QUALIFIED SUBSTITUTE [PROPERTY][HYBRID LEASE][LOAN]] (the “Qualified Substitute [Property][Hybrid Lease][Loan]”) |
Ladies and Gentlemen:
Pursuant to Section 7.01(b) of the Sixth Amended and Restated Property Management and Servicing Agreement, dated as of November 13, 2019 (the “Agreement”), 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, STORE Master Funding XIV, LLC, as an issuer, STORE Capital Corporation, as property manager (the “Property Manager”) and as special servicer (the “Special Servicer”), ____________, as indenture trustee (the “Indenture Trustee”), and __________________, as back-up manager (the “Back-Up Manager”), the undersigned hereby certifies that the exceptions set forth on Exhibit “A” attached hereto are materially consistent with the underwriting criteria for the existing Properties (as defined in the Agreement).
STORE Capital Corporation,
a Maryland corporation,
as Property Manager
By: | ||
Name: | ||
Title: |
EXHIBIT G-1
EXHIBIT H
FORM OF DETERMINATION DATE REPORT
Citibank, N.A., not in its individual capacity
but solely as Indenture Trustee
388 Greenwich Street
New York, NY 10013
Attn: Global Transaction Services-STORE Master Funding I Series 2012-1 through [ ]
Re: STORE Master Funding I, LLC Net-Lease Mortgage Notes, Series 2012-1 through [ ]
Ladies and Gentlemen:
In accordance with Section 4.01(a) of the Sixth Amended and Restated Property Management Agreement, dated November 13, 2019 (as amended or supplemented thereafter, the “Property Management Agreement”), between STORE Master Funding I, LLC, STORE Master Funding II, LLC, STORE Master Funding III, LLC, STORE Master Funding IV, LLC, STORE Master Funding V, LLC, STORE Master Funding VI, LLC, STORE Master Funding VII, LLC, STORE Master Funding XIV, LLC, and each joining party thereto (the “Issuers”), STORE Capital Corporation (the “Property Manager” and “Support Provider”), Citibank, N.A. (the “Indenture Trustee”) and KeyBank National Association (the “Back-Up Manager”), the undersigned hereby certifies and agrees the issuers have not incurred any indebtedness except indebtedness permitted by any applicable limited liability company agreement of the related Issuer Member or the Transaction Documents.
In accordance with the U.S. Credit Risk Retention Agreement from the Support Provider and the Issuers, dated as of November 13, 2019 (the “U.S. Risk Retention Agreement”), the undersigned hereby certifies and agrees that (a) as of the date hereof, the Support Provider retains and, until the redemption of the Series [__] Notes and the [related Series Notes], will retain, an indirect ownership interest in the Issuers that, as of [__], 2019 (the “Series 2019-1 Closing Date”) is equal to at least 5% of the aggregate Collateral Value of the Collateral Pool as measured on the Series 2019-1 Closing Date, and such ownership interest constitutes a first loss exposure to the Collateral Pool (the “Retained Interest”) and (b) for so long as the Series 2019-1 Notes are outstanding, the Support Provider shall retain and not sell the Retained Interest or subject it to any credit risk mitigation, short positions or any other hedges, except to the extent permitted under the Securitization Retention Requirements.
STORE CAPITAL CORPORATION | |
EXHIBIT H-1
EXHIBIT I
CALCULATION OF FIXED CHARGE COVERAGE RATIOS
1. | Adjusted EBITDAR: An amount equal to the sum of (i) pre-tax income, (ii) interest expense, (iii) all non-cash amounts in respect of depreciation and amortization, (iv) all non-recurring expenses, (v) specifically documented discretionary management fees and (vi) all operating lease and rent expense less (vii) all non-recurring income and standardized corporate overhead expense based on estimated industry standards for the related fiscal period; |
2. | Fixed Charges: An amount equal to the sum of (i) total operating lease or rent expenses, (ii) interest expense, and (iii) scheduled principal payments on indebtedness payable in respect of the related unit, in each case for the period of time as to which such figure is presented; and |
3. | FCCR: Adjusted EBITDAR/Fixed Charges. |
EXHIBIT I-1
EXHIBIT J-1
FORM OF MASTER EXCHANGE AGREEMENT
[to be attached]
EXHIBIT J-1
EXHIBIT J-2
FORM OF MASTER EXCHANGE AGREEMENT
[to be attached]
EXHIBIT J-1
EXHIBIT K-1
FORM OF ESCROW AGREEMENT
[to be attached]
EXHIBIT K-1
EXHIBIT K-2
FORM OF ESCROW AGREEMENT
[to be attached]
EXHIBIT K-1