Common use of Exchange of Properties Clause in Contracts

Exchange of Properties. (a) The Issuer may remove Released Assets and Exchanged Properties from the Collateral Pool in exchange for the addition of one or more Qualified Substitute Properties, to the Collateral Pool subject to the terms and provisions set forth herein and in the Indenture. No Property will constitute a Qualified Substitute Property unless, after giving effect to the transfer of such Property via the acquisition of a Qualified Substitute Property Owner Interest to the related Issuer, either (i) a Maximum Property Concentration is not exceeded, or (ii) if, prior to such substitution, an existing Maximum Property Concentration is already exceeded, the addition of such Qualified Substitute Property Owner Interest will reduce the Maximum Property Concentration or such Maximum Property Concentration will remain unchanged after giving effect to such substitution. (b) In the event that the Issuer elects to substitute one or more Qualified Substitute Properties pursuant to this Section 25, the Property Manager shall require the Issuer to deliver to the Custodian all documents as specified in the definition of “Lease File” with respect to each Qualified Substitute Property. Monthly Lease Payments due with respect to Qualified Substitute Properties in the month of substitution shall not be part of the Collateral and will be retained by the Property Manager and remitted by the Property Manager to the Issuer on the next succeeding Payment Date. For the month of substitution, the Available Amount shall include the Monthly Lease Payment due on the Lease for the Removed Property for such month and, thereafter, the applicable Issuer designee shall be entitled to retain all amounts received in respect of such Lease. On or prior to the effective date of any such substitution, the Property Manager shall deliver to the Custodian and the Issuer an amended Lease Schedule reflecting the addition to the Collateral of each new Qualified Substitute Property and related Lease and the removal from the Collateral of each Removed Property and related Lease. Upon such substitution, each Qualified Substitute Property shall be subject to the terms of this Agreement in all respects, and the Issuer shall be deemed to have made the representations and warranties contained in Section 2.20 of the Indenture with respect to each Qualified Substitute Property. (c) The Issuer shall effect such substitution by having each Qualified Substitute Property, which may include Replacement Properties acquired by the Issuer pursuant to a Master Exchange Agreement, by distributing or otherwise transferring the Removed Property to its members and delivering to and depositing with the Custodian (i) the deed and any other transfer documents transferring such Qualified Substitute Property, (ii) the deed and any other transfer documents transferring such Removed Property to the Issuer’s members, or the entity purchasing the Removed Property, (iii) the Lease Files for such Qualified Substitute Properties together with Opinions of Counsel, all of which shall meet the Lease File requirements for such Qualified Substitute Property, and (iv) an Officer’s Certificate certifying that all of the taxes (including transfer taxes with respect to Qualified Substitute Property) in connection with the acquisition of the Qualified Substitute Property, and the transfer of the Removed Property have been paid. (d) Upon receipt of an Officer’s Certificate from the Property Manager or the Issuer to the effect that all requirements with respect to any substitution pursuant to the foregoing terms of this Section 25 have been satisfied, which Officer’s Certificate shall be furnished by the Property Manager upon becoming appropriate, and 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, (i) the Indenture Trustee shall release or cause to be released to the Issuer’s designee the related Lease File for the Removed Property and (ii) each of the Indenture Trustee, and the Issuer shall execute and deliver such instruments of release, transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the Issuer’s designee the ownership of the Removed Property and the related Lease and to release any Mortgage or other lien or security interest in such Removed Property or the related Lease. In connection with any such release or transfer, the Special Servicer shall deliver the related Servicing File to the Issuer’s designee. Simultaneously with any substitution made pursuant to this Section 25, the Issuer shall distribute the Removed Property and Lease to its members or transfer the Removed Property and Lease to a third party purchaser. (e) Any Release Price received by the Issuer in connection with the release of a Released Property or related Property Owner Membership Interest pursuant to this Section 25 or the other terms and provisions of this Agreement shall first be deposited into the Release Account and, after payment of any unreimbursed Extraordinary Expenses, Advances (plus Advance Interest thereon) and Emergency Property Expenses related to such Released Property and the expenses related to such release, shall either (i) be applied by the Issuer to acquire a Qualified Substitute Property, within twelve months following the related release or (ii) be deposited as Unscheduled Proceeds into the Collection Account to be paid as Unscheduled Principal Payments on the related Payment Date. Any amounts remaining in the Release Account related to such a Release and following such twelve month period will be transferred as Unscheduled Proceeds into the Collection Account and applied as Unscheduled Principal Payments on the following Payment Date. Notwithstanding the foregoing, during the continuance of an Early Amortization Period, all amounts on deposit in the Release Account will be transferred as Unscheduled Proceeds into the Collection Account and applied as Unscheduled Principal Payments, after payment of Collateral Pool Expenses in accordance with Section 2.11(b) of the Indenture, on the Payment Date following the occurrence of such Early Amortization Period. (f) No exchange or release of a Property may occur if an Early Amortization Period would commence as a result of such exchange or release. (g) In certain cases, a Qualified Substitute Property may be added to the Collateral Pool prior to the removal of the related Exchanged Asset. In addition, a Qualified Substitute Property may be added to the Collateral Pool prior to the payment of the related Release Price, so long as all of the requirements set forth in this Section 25 are completed. (h) The Issuer shall (i) no later than one hundred twenty (120) days after the Series Closing Date, cause the Property owned by ARCP SS North Kingstown RI, LLC to be removed from the Collateral Pool by the Issuer Manager or an Affiliate thereof and (ii) within twelve (12) months of following the removal described in clause (i) above and deposit of the Release Price in the Release Account, in accordance with Section 25(e)(i), cause a Qualified Substitute Property to be added to the Collateral Pool and the Property Owner with respect to such Qualified Substitute Property to join the Property Owner Guaranty with respect to such Property, the failure of which shall cause application of such Release Price in accordance with Section 25(e)(ii). Upon deposit of the Release Price in the Release Account following the removal described in clause (i) above, the lien of the related Mortgage shall be released and such Mortgage discharged, such Property Owner shall be released from the Property Owner Guaranty and such Property shall be deemed to be a Released Property.

Exchange of Properties. (a) The Each Issuer may remove Released Assets and an Exchanged Properties Property from the Collateral Pool in exchange for the addition of one or more Qualified Substitute Properties, Properties to the Collateral Pool subject Pool; provided, that, after giving effect to a substitution or exchange pursuant to this Section 7.01, the sum of the Collateral Value of all Released Properties and Exchanged Properties released or exchanged since the most recent Series Closing Date shall not exceed 35% of the Aggregate Collateral Value as of such Series Closing Date. Notwithstanding the foregoing, (i) a release or exchange of a Property in connection with a Collateral Defect, a Third Party Purchase Option, a Risk-Based Substitution or a Qualified Deleveraging Event, (ii) the release or exchange of a Terminated Lease Property, Delinquent Asset or Defaulted Asset, (iii) releases during the Disposition Period, (iv) releases as a result of a Triple A Release Event, (v) releases in connection with a Series Collateral Release or (vi) a transfer of lease terms and provisions set forth herein and to a Lease Transfer Property shall not be taken into consideration for purposes of the 35% maximum described in the Indentureprior sentence. No Property will constitute a Qualified Substitute Property unless, after giving effect to the transfer of such Property via the acquisition of a Qualified Substitute Property Owner Interest to the related Issuer, either (i) a Maximum Property Concentration is not exceeded, or (ii) if, prior to such substitution, an existing Maximum Property Concentration is already exceeded, the addition of such Qualified Substitute Property Owner Interest will reduce the Maximum Property Concentration or such Maximum Property Concentration will remain unchanged after giving effect to such substitution. In addition, no exchange of a Property or Lease may occur (other than pursuant to a Third Party Purchase Option or release due to a Collateral Defect) if an Early Amortization Period would occur as a result of such exchange. (b) In the event that the any Issuer elects to substitute one or more Qualified Substitute Properties pursuant to this Section 257.01, the Property Manager shall require the such Issuer to deliver to the Custodian all documents as specified in the definition of “Lease File” in Section 1.01 with respect to each Qualified Substitute PropertyProperty in accordance with this Agreement and the Custody Agreement. Monthly Lease Payments due with respect to Qualified Substitute Properties in the month of substitution shall not be part of the Collateral and will be retained by the Property Manager and remitted by the Property Manager to the such Issuer on the next succeeding Payment Date. For the month of substitution, the Available Amount shall include the Monthly Lease Payment due on the Lease for the Removed Property for such month and, thereafter, the applicable Issuer designee shall be entitled to retain all amounts received in respect of such Lease. On or prior to the effective date of any such substitution, the Property Manager shall deliver to the Custodian and the each Issuer an amended Lease Property Schedule reflecting the addition to the Collateral of each new Qualified Substitute Property and related Lease and the removal from the Collateral of each Removed Property and related Lease. Upon such substitution, each Qualified Substitute Property shall be subject to the terms of this Agreement in all respects, and the applicable Issuer shall be deemed to have made the representations and warranties contained in Section 2.20 of the Indenture with respect to each Qualified Substitute Property, and the applicable Issuer shall deliver to the Indenture Trustee a certificate in the form of Exhibit C attached hereto certifying to the Indenture Trustee that such exceptions as have been proposed by the Property Manager or the Issuers are materially consistent with the underwriting criteria for existing Properties. (c) The Each Issuer shall effect such substitution by having each Qualified Substitute PropertyProperty deeded (or, which may include Replacement Properties acquired by with respect to Qualified Substitute Properties, having the leasehold interest in the ground lease therein assigned) to such Issuer pursuant to a Master Exchange Agreement, by and distributing or otherwise transferring the Removed Property to its members a designee of the Issuer Manager and delivering to and depositing with the Custodian (i) the deed (or assignment of ground lease), if applicable, and any other transfer documents transferring such Qualified Substitute PropertyProperty (or leasehold interest in the ground lease) to such designee, (ii) the deed (or assignment of ground lease), if applicable, and any other transfer documents transferring such Removed Property (or leasehold interest in the ground lease) to a designee of the Issuer’s membersapplicable Issuer Manager, or the entity purchasing the Removed Property, (iii) the Lease Files for such Qualified Substitute Properties together with Opinions of CounselProperties, all of which shall meet the Lease File requirements for such Qualified Substitute Property, and (iv) an Officer’s Certificate certifying that all of the taxes (including transfer taxes with respect to Qualified Substitute Property) in connection with the acquisition of the Qualified Substitute Property, Property and the transfer of the Removed Property have been paid. (d) Upon receipt of an Officer’s Certificate from the Property Manager or the applicable Issuer to the effect that all requirements with respect to any substitution pursuant to the foregoing terms of this Section 25 7.01 have been satisfied, which Officer’s Certificate shall be furnished by the Property Manager upon becoming appropriate, and 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, (i) the Indenture Trustee shall release or cause to be released to the such Issuer’s designee the related Lease File for the Removed Property and (ii) each of the Indenture Trustee, Trustee and the such Issuer shall execute and deliver such instruments of release, transfer or assignment, in each case without recourse, as shall be provided to it and are reasonably necessary to vest in the such Issuer’s designee the ownership of the Removed Property and the related Lease and to release any Mortgage or other lien or security interest in such Removed Property or the related Lease. In connection with any such release or transfer, the Special Servicer shall deliver the related Servicing File to the such Issuer’s designee. Simultaneously with any substitution made pursuant to this Section 257.01, the such Issuer shall distribute the Removed Property and Lease to its members or transfer the Removed Property and Lease to a third party purchaserat the direction of the applicable Issuer Manager. (e) Any Release Price received by the applicable Issuer in connection with the release of a Released Property or related Property Owner Membership Interest pursuant to this Section 25 7.01 or the other terms and provisions of this Agreement (other than any Release Prices obtained in connection with a Triple A Release Event, Liquidation Proceeds received with respect to Defaulted Assets, or any Series Collateral Release Prices) shall first be deposited into the Release Account and, after payment of any unreimbursed Extraordinary Expenses, Advances and Emergency Protection Expenses (plus Advance Interest thereon) and Emergency Property Expenses related to such Released Property and the expenses related to such release, shall either (i) be applied by the such Issuer to acquire a Qualified Substitute Property, Property within twelve (12) months following the related release or (ii) at the option of the Property Manager, be deposited as Unscheduled Proceeds into the Collection Account to be paid as Unscheduled Principal Payments on the related Payment DateAccount. Any amounts relating to such a Released Property remaining in the Release Account related to such a Release and following such twelve (12) month period will be transferred as Unscheduled Proceeds into the Collection Account and Account; provided, that only the related Allocated Release Amount will be applied as Unscheduled Principal Payments on the following Payment DatePayments. Notwithstanding the foregoing, during the continuance of an Early Amortization Period, all amounts on deposit in the Release Account will be transferred as Unscheduled Proceeds into the Collection Account and applied as Unscheduled Principal Payments, after payment of Collateral Pool Expenses in accordance with Section 2.11(b) of the Indenture, Payments on the Payment Date following the occurrence commencement of such Early Amortization Period. (f) No exchange or release of a Property may occur if an Early Amortization Period would commence as a result of such exchange or releaseexchange. (g) In certain cases, a Qualified Substitute Property may be added to the Collateral Pool prior to the removal of the related Exchanged Asset. In addition, a Qualified Substitute Property may be added to the Collateral Pool prior to the payment of the related Release Price, so long as all of the requirements set forth in this Section 25 are completed. (h) The Issuer shall (i) no later than one hundred twenty (120) days after the Series Closing Date, cause the Property owned by ARCP SS North Kingstown RI, LLC to be removed from the Collateral Pool by the Issuer Manager or an Affiliate thereof and (ii) within twelve (12) months of following the removal described in clause (i) above and deposit of the Release Price in the Release Account, in accordance with Section 25(e)(i), cause a Qualified Substitute Property to be added to the Collateral Pool and the Property Owner with respect to such Qualified Substitute Property to join the Property Owner Guaranty with respect to such Property, the failure of which shall cause application of such Release Price in accordance with Section 25(e)(ii). Upon deposit of the Release Price in the Release Account following the removal described in clause (i) above, the lien of the related Mortgage shall be released and such Mortgage discharged, such Property Owner shall be released from the Property Owner Guaranty and such Property shall be deemed to be a Released Property.