Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes of such Class or the Preferred Shares, as the case may be, under this Indenture. Unless notified by Holders of a Majority (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 Business Days’ notice of such change to the Holders of such Class of Notes, the Holders of the Preferred Shares and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares). Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. Without the consent of (x) each Hedge Counterparty (to the extent set forth in the related Hedge Agreement), (y) all of the Holders of each Outstanding Class of Notes adversely affected and (z) all the Holders of the Preferred Shares adversely affected, and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may: (a) change the Stated Maturity of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date); (b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture; (c) impair or adversely affect the Assets except as otherwise permitted in this Indenture; (d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture; (e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof; (f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby; (g) modify the definition of the term “Outstanding” or the provisions of Section 11.1 or Section 13.1 hereof; (h) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Appears in 1 contract
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class class materially and adversely affected thereby and all of the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement)that is materially and adversely affected thereby, and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes of such Class or the Preferred Shares, as the case may be, under this Indenture. Unless notified (after giving fifteen (15) Business Days’ notice of such change to the Holders of each Class of Notes, the Holders of the Preferred Shares and each Hedge Counterparty) by Holders of a Majority (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or and the Preferred Shares that such Class of Notes or the Preferred Shares will be materially and adversely affectedaffected by the proposed supplemental indenture, the Trustee may rely on a certification interests of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would will be deemed not to be materially and adversely affected by such change (after giving 15 Business Days’ notice of such change to the Holders of such Class of Notes, the Holders of the Preferred Shares and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting such proposed supplemental indenture in determining whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares)indenture. Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. Without the consent of (x) each Hedge Counterparty (if any) (to the extent set forth in the related Hedge Agreement), ) and (y) in the case of clauses (a) through (h) and (j) below, all of the Holders holders of each Outstanding Class of Notes adversely affected and affected, or, in the case of clause (zi) below, all of the Holders of the Preferred Shares adversely affected, Controlling Class and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Maturity of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby;
(g) modify the definition of the term “Outstanding” or the provisions of Section 11.1 or Section 13.1 hereof;
(h) modify or amend any of the non-petition and limited-recourse provisions set forth herein or in any of the related Transaction Documents;
(i) modify the definition of the term “Collateral Manager Servicing Standard”; or
(j) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited non-recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 fifteen (15) days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Appears in 1 contract
Sources: Indenture (Gramercy Capital Corp)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and all of the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes of such Class or the Preferred Shares, as the case may be, under this Indenture. Unless notified by Holders of a Majority of the Notes of any Class (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely may, based on a certification the satisfaction of the Collateral Manager in determining Rating Agency Condition, determine whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 Business Days’ ' notice of such change to the Holders of such Class of Notes, the Holders of the Preferred Shares and each Hedge Counterparty). The Trustee may also rely may, in reliance on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining indenture, determine whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares). Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. Without the consent of (x) each Hedge Counterparty (except to the extent set forth in required by the related Hedge Agreement), ) and (y) all of the Holders of each Outstanding Class of Notes adversely affected and (z) all the Holders of the Preferred Shares adversely affected, and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Maturity of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s 's election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Outstanding Notes whose holders’ ' consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Outstanding Note affected thereby;
(g) modify the definition of the term “"Outstanding” " or the provisions of Section 11.1 or Section 13.1 hereof;
(h) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.or
Appears in 1 contract
Sources: Indenture (Arbor Realty Trust Inc)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the any Class of Notes of such Class or the Preferred Shares, as the case may be, Shares under this Indenture. Unless notified by Indenture only (x) with the written consent of the Holders of a Majority in Aggregate Outstanding Amount of the Notes of each Class materially and adversely affected thereby (excluding any Notes owned by the Collateral Loan Obligation Manager or any of its Affiliates, Affiliates or by any accounts managed by them) and the Holder of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be if materially and adversely affected thereby, by such change Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (y) subject to satisfaction of the Rating Agency Condition, notice of which may be in electronic form. Unless the Trustee is notified (after giving (x) 15 Business Days’ notice of such change to the Holders of such each Class of Notes, Notes and the Holders Holder of the Preferred Shares requesting notification by such Noteholders and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders holders of the Preferred Shares if any such Noteholders or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders holders of the Preferred Shares would be materially and adversely affected by the proposed supplemental indenture and (y) following such initial 15 Business Day period, an additional 15 Business Days’ notice to any holder of Notes or Preferred Shares that did not respond to the initial notice) by Holders of a Majority in Aggregate Outstanding Amount of the Notes of any Class that such Class of Notes will be materially and adversely affected by the proposed supplemental indenture (and upon receipt of an Officer’s Certificate of the Loan Obligation Manager), the interests of such Class and the interests of the Preferred Shares will be deemed not to be materially and adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares). Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. Without the consent of (x) each Hedge Counterparty (to the extent set forth in the related Hedge Agreement), (y) all of the Holders of each Outstanding Class of Notes adversely affected and (z) all the Holders of the Preferred Shares adversely affected, and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Maturity of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby;
(g) modify the definition of the term “Outstanding” or the provisions of Section 11.1 or Section 13.1 hereof;
(h) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant will be permitted to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail enter into such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.supplemental
Appears in 1 contract
Sources: Indenture (Arbor Realty Trust Inc)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the any Class of Notes of such Class or the Preferred Shares, as the case may be, Shares under this Indenture. Unless notified by Indenture only (x) with the written consent of (i) the Holders of a Majority in Aggregate Outstanding Amount of the Notes of each Class materially and adversely affected thereby (excluding any Notes owned by the Collateral Manager or any of its AffiliatesAffiliates or by any accounts managed by them), (ii) the Holders of a Majority of the Controlling Class (excluding any Notes owned by the Collateral Manager or any of its Affiliates or by any accounts managed by them) and (iii) the Holder of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be if materially and adversely affected thereby, by such change Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (y) subject to satisfaction of the Rating Agency Condition, notice of which may be in electronic form. Unless the Trustee is notified (after giving (x) 15 Business Days’ notice of such change to the Holders of such each Class of Notes, Notes and the Holders Holder of the Preferred Shares requesting notification by such Noteholders and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders holders of the Preferred Shares if any such Noteholders or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders holders of the Preferred Shares would be materially and adversely affected by the proposed supplemental indenture and (y) following such initial 15 Business Day period, an additional 15 Business Days’ notice to any holder of Notes or Preferred Shares that did not respond to the initial notice) by Holders of a Majority in Aggregate Outstanding Amount of the Notes of any Class that such Class of Notes will be materially and adversely affected by the proposed supplemental indenture (and upon receipt of an Officer’s Certificate of the Collateral Manager), the interests of such Class and the interests of the Preferred Shares will be deemed not to be materially and adversely affected by such change (after giving notice of proposed supplemental indenture and the Trustee will be permitted to enter into such change to the Holders of the Preferred Shares)supplemental indenture. Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred SharesNoteholders. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Officer’s Certificate of the Collateral Manager. Without the consent of (x) each Hedge Counterparty (to the extent set forth in the related Hedge Agreement), (y) all of the Holders of each Outstanding Class of Notes materially adversely affected affected, (y) the Holders of a Majority of the Controlling Class (excluding any Notes owned by the Collateral Manager or any of its Affiliates or by any accounts managed by them) and (z) all of the Holders of the Preferred Shares materially adversely affected, and in each such case subject to satisfaction of the Rating Agency Conditionaffected thereby, no supplemental indenture may:
(a) change the Stated Maturity Date of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets Collateral to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity Date thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders the Holders thereof whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby;
(g) modify the definition of the term “Outstanding” or the provisions of Section 11.1 or Section 13.1 hereof;
(h) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Appears in 1 contract
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the any Class of Notes of such Class or the Preferred Shares, as the case may be, Shares under this Indenture. Unless notified by Indenture only (x) with the written consent of (a) the Holders of a Majority in Aggregate Outstanding Amount of the Notes of each Class materially and adversely affected thereby (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) and the Holder of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be if materially and adversely affected thereby, by such change Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and (c) the Class A-1AR Note Agent if it is materially and adversely affected thereby, and (y) subject to satisfaction of the Rating Agency Condition, notice of which may be in electronic form, and, so long as MBIA is deemed to be the Controlling Class hereunder, the consent of MBIA. Unless the Trustee is notified (after giving 15 Business Days’ ' notice of such change to the Holders of such each Class of Notes, the Holder of the Preferred Shares, each Hedge Counterparty and the Class A-1AR Note Agent) by Holders of a Majority in Aggregate Outstanding Amount of the Notes of any Class (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) that such Class of Notes will be materially and adversely affected by the proposed supplemental indenture (and upon receipt of an Officer's Certificate of the Collateral Manager), the interests of such Class and the interests of the Preferred Shares will be deemed not to be materially and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of proposed supplemental indenture and the Trustee will be permitted to enter into such change to the Holders of the Preferred Shares)supplemental indenture. Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred SharesNoteholders. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Officer's Certificate of the Collateral Manager. Without the consent of (xw) each Hedge Counterparty (except to the extent set forth in required by the related Hedge Agreement), (yx) all of the Holders of each Outstanding Class of Notes adversely affected and (z) all the Holders of the Preferred Shares adversely affected, and in each such case subject to satisfaction of the Rating Agency Condition, notice of which may be in electronic form, (y) all of the Holders of the Preferred Shares adversely affected thereby and (z) MBIA, so long as MBIA is deemed to be the Controlling Class hereunder, no supplemental indenture may:
(a) change the Stated Maturity of the principal of or the due date of any installment of interest on any NoteNote or the Class A-1AR Commitment Fee, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders the Holders thereof whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s 's election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Outstanding Notes whose holders’ ' consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Outstanding Note affected thereby;
(g) modify the definition of the term “"Outstanding” " or the provisions of Section 11.1 or Section 13.1 hereof;
(h) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.or
Appears in 1 contract
Sources: Indenture (Arbor Realty Trust Inc)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by themSecurities) of the Notes of each Class class materially and adversely affected thereby and all of the Holders of a Majority of Preferred Shares if materially and adversely affected thereby and the Controlling Class (but only for so long as the Class A-1 Notes and/or the Class A-2 Notes are the Controlling Class) by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), Issuers and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes of such Class or the Preferred Shares, as the case may be, under this Indenture. Unless notified by Holders of a Majority (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 fifteen (15) Business Days’ notice of such change to the Holders of such each Class of Notes, the Holders of the Preferred Shares Notes and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares)) by Holders of a Majority (excluding any Collateral Manager Securities) of the Notes of any Class or the Preferred Shares that such Class will be materially and adversely affected by the proposed supplemental indenture, the interests of such Class shall be deemed not to be materially and adversely affected by such proposed supplemental indenture. Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. Without the consent of (x) each Hedge Counterparty (to the extent set forth of, in the related Hedge Agreement)case of clauses (a) through (h) and (j) below, (y) all of the Holders holders of each Outstanding Class of Notes adversely affected and affected, or, in the case of clause (zi) below, all of the Holders of the Preferred Shares adversely affected, Controlling Class and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Maturity of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby;
(g) modify the definition of the term “Outstanding” or the provisions of Section Sections 11.1 or Section 13.1 hereof;
(h) modify or amend any of the non-petition and limited-recourse provisions set forth herein or in any of the related Transaction Documents;
(i) modify the definition of the term “Collateral Manager Servicing Standard”; or
(j) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited non-recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 fifteen (15) days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Appears in 1 contract
Sources: Indenture (Gramercy Capital Corp)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class class materially and adversely affected thereby and all of the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), that is materially and subject to satisfaction of the Rating Agency Conditionadversely affected thereby, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes of such Class or the Preferred Shares, as the case may be, under this Indenture. Unless notified by Holders of a Majority (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely may, based on a certification the satisfaction of the Collateral Manager in determining Rating Agency Condition, determine whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 Business Days’ notice of such change to the Holders of such Class of Notes, the Holders holders of the Preferred Shares and each Hedge Counterparty). The Trustee may also rely may, in reliance on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining to determine whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares). Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. Without the consent of (x) each Hedge Counterparty (if any) (to the extent set forth in the related Hedge Agreement), ) and (y) in the case of clauses (a) through (h) and (j) below, all of the Holders holders of each Outstanding Class of Notes adversely affected and affected, or, in the case of clause (zi) below, all of the Holders of the Preferred Shares adversely affected, Controlling Class and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Maturity of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Note affected thereby;
(g) modify the definition of the term “Outstanding” or the provisions of Section 11.1 or Section 13.1 hereof;
(h) modify or amend any of the non-petition and limited-recourse provisions set forth herein or in any of the related Transaction Documents;
(i) modify the definition of the term “Collateral Manager Servicing Standard,” or
(j) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Appears in 1 contract
Sources: Indenture (Gramercy Capital Corp)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders holders of not less than a Majority 66-2/3%, in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by themSecurities) of the Notes of each Class materially and adversely affected thereby and the Holders of a Majority of Preferred Shares Certificateholder if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-IssuersIssuer, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), that is materially and subject to satisfaction of the Rating Agency Conditionadversely affected thereby, the Trustee Trustee, the Issuer and the Co-Issuers Collateral Manager may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes Noteholders of such Class or the Preferred SharesCertificateholder, as the case may be, under this Indenture. Unless notified by Holders of a Majority (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely may, based on a certification of an Officer’s Certificate from the Collateral Manager in determining or a written Opinion of Counsel, determine whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 Business Days’ notice of such change to the Holders of such Class of Notes, the Holders of the Preferred Shares Certificateholder and each Hedge Counterparty). The Trustee may also rely may, in reliance on an Officer’s Certificate from the consent of the Holders of the Preferred Shares Collateral Manager or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining indenture, determine whether or not the Holders of Noteholders and the Preferred Shares Certificateholder would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred SharesCertificateholder). Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred SharesCertificateholder. The consent of the Holders of Noteholders and the Preferred Shares Certificateholder shall be binding on all present and future Holders of the Preferred SharesNoteholders and Certificateholders. Without the consent of (x) each Hedge Counterparty (if any) (to the extent set forth in the related Hedge Agreement), ) and (y) all of the Holders of each Outstanding Class of Notes adversely affected and (z) all the Holders of the Preferred Shares adversely affected, thereby and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Maturity of the principal of or the due date of any installment of interest on any Notethe Notes or the Class A-1R Commitment Fee, reduce the principal amount thereof or the Note Interest Rate rate of interest thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred SharesCertificate, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of of, interest, Class A-1R Commitment Fees or interest Class A-1R Breakage Costs on Notes or of distributions to the Preferred Shares Paying Agent Owner Trustee for the payment of distributions in respect of the Preferred Shares Certificate or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is thereon, Class A-1R Commitment Fee or Class A-1R Breakage Costs are payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount aggregate principal amount of Holders of Notes Noteholders of each Class or the Notional Amount notional amount of Preferred Shares the Certificate of Preferred Shareholders the Certificateholder whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder defaults thereunder or their consequences provided for in this Indentureconsequences;
(c) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount aggregate principal amount of Holders of Notes Noteholders of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereofthis Indenture;
(fd) modify any of the provisions of this Section 8.2, Indenture with respect to supplemental indentures except (i) to increase any the percentage of outstanding Notes whose holders’ consent is required for any such action or (ii) to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder holder of each outstanding Note affected thereby;
(ge) modify the definition of the term “OutstandingPriority of Payments” or set forth in this Indenture;
(f) modify any of the provisions of Section 11.1 this Indenture in such a manner as to affect the requirement that the Issuer be treated as a QRS or Section 13.1 hereof;other “pass-through” entity for federal income tax purposes; or
(hg) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest on or principal on of any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent Owner Trustee for the payment of distributions in respect of the Preferred Shares Certificate on any Payment Date (or any other date) or to affect the rights of the Holders holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; therein. provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 fifteen (15) days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Class A-1R Note Agent, the Owner Trustee, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Appears in 1 contract
Sources: Indenture (Capitalsource Inc)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) MBIA, if MBIA is the Controlling Class, (b) the Holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and the Holders of not less than a Majority majority of Preferred Shares the aggregate outstanding notional amount of the Income Notes if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, Issuers and (bc) the consent of each Hedge Counterparty (to the extent required by set forth in the related Hedge Agreement), and the Upfront Swap Counterparty, each Synthetic Asset Counterparty (to the extent set forth in the related Synthetic Asset), the Class AR Note Agent, and, subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes of such Class or the Preferred SharesIncome Notes, as the case may be, under this Indenture. Unless notified by Holders of a Majority (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 Business Days’ notice of such change to the Holders of the Senior Class A Notes, the Holders of such other Class of Notes, the Holders of the Preferred Shares and Income Notes, each Hedge Counterparty). The Trustee may also rely on , the consent Upfront Swap Counterparty and each Synthetic Asset Counterparty) by Holders of a majority in Aggregate Outstanding Amount of the Holders Notes of any Class or a majority of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense aggregate outstanding notional amount of the party requesting Income Notes (excluding Collateral Manager Notes) that such Class of Notes or the Income Notes will be materially and adversely affected by the proposed supplemental indenture in determining whether indenture, the interests of such Class or the Income Notes shall be deemed not the Holders of the Preferred Shares would to be materially and adversely affected by such change (after giving notice of proposed supplemental indenture and the Trustee will be permitted to enter into such change to the Holders of the Preferred Shares)supplemental indenture. Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred SharesIncome Notes. The consent of the Holders of the Preferred Shares Income Notes shall be binding on all present and future Holders of the Preferred SharesIncome Notes. Without the consent of (xv) each Hedge Counterparty (to the extent set forth in the related Hedge Agreement), (w) the Upfront Swap Counterparty, (x) each Synthetic Asset Counterparty (to the extent set forth in the related Synthetic Asset), (y) MBIA, if MBIA is the Controlling Class, and (z) all of the Holders of each Outstanding Class of Notes adversely affected and (z) all of the Holders of the Preferred Shares Income Notes adversely affected, and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Rated Final Maturity of the principal of or the due date of any installment of interest on any NoteNote or any Class AR Commitment Fee, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred SharesIncome Notes, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets Collateral to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares Income Notes or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Rated Final Maturity thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Aggregate Outstanding Amount of Preferred Shares Income Notes of Preferred Shareholders Income Noteholders whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets Collateral except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets Collateral or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, any Secured Party or the Holder of any Preferred Share Income Note as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets Collateral or rescind the Trustee’s election to preserve the Assets Collateral pursuant to Section 5.5 or to sell or liquidate the Assets Collateral pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Outstanding Notes whose holdersHolders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Outstanding Note affected thereby;
(g) modify the definition of the term “Outstanding” or the provisions of Section 11.1 or Section 13.1 hereof;
(h) modify the definition of the term “Collateral Manager Servicing Standard”
(i) modify the definition of the term “Servicing Standard”; or
(j) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares Income Notes on any Payment Date (or any other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited non- recourse or non-petition covenants with respect to the Issuer and the Co-Issuerof this Indenture or related Transaction Documents. If any Class of Notes are is Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such supplemental indenture if, as a result unless the Rating Agency Condition is satisfied with respect thereto and the Trustee has received an Officer’s Certificate of the Collateral Manager stating that such supplemental indenture, such Rating Agency would cause Indenture will not have a material adverse effect on the rating Outstanding Classes of any such Notes to be immediately reduced or withdrawnNotes. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. The Trustee, at the expense of the Issuer, shall provide to each Hedge Counterparty and each Synthetic Asset Counterparty a copy of any proposed supplemental indenture pursuant to Section 8.1 or 8.2 hereof at least 15 Business Days prior to the execution thereof by the Issuer. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.1 or 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying AgentUpfront Swap Counterparty, each Synthetic Asset Counterparty, MBIA, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Appears in 1 contract
Sources: Indenture (CBRE Realty Finance Inc)
Supplemental Indentures With Consent of Securityholders. Except as set forth below, with the written consent of (a) the Holders of not less than a Majority in Aggregate Outstanding Amount (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and the Holders of a Majority of Preferred Shares if materially and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuers, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and subject to satisfaction of the Rating Agency ConditionNote Administrator, the Trustee Trustee, the Advancing Agent and the Co-Issuers may enter into one or more indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of any Class of Notes or the Preferred Shares under this Indenture only (x) with the written consent of the Holders of at least Majority in Aggregate Outstanding Amount of the Notes of such each Class or the Preferred Shares, as the case may be, under this Indenture. Unless notified by Holders of a Majority materially and adversely affected thereby (excluding any Notes owned by the Issuer, the Collateral Manager or any of its their respective Affiliates) and the Holder of Preferred Shares if materially and adversely affected thereby, or by any accounts managed by themAct of said Securityholders delivered to the Trustee, the Note Administrator and the Co-Issuers, and (y) subject to satisfaction of the Notes Rating Agency Condition, notice of which may be in electronic form. The consent of the Holders of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 Business Days’ notice of such change to the Holders of such Class of Notes, the Holders of the Preferred Shares and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares). Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders such Class of Notes or Holders of the Preferred Shares, as applicable. Notwithstanding the foregoing, any supplemental indenture to add or modify any of the provisions of this Indenture with respect to (a) the definitions of “Controlling Class,” “Majority” and “Supermajority” and (b) the Eligibility Criteria, the Acquisition Criteria or the Note Protection Tests, other than with respect to a Rating Agency Test Modification, shall require, in each case, the consent of the Holders of at least a Supermajority of the Notes of each Class. Without the consent of (x) each Hedge Counterparty (to the extent set forth in the related Hedge Agreement), (y) all of the Holders of each Outstanding Class of Notes adversely affected and (zy) all of the Holders of the Preferred Shares adversely affected, and in each such case subject to satisfaction of the Rating Agency ConditionShares, no supplemental indenture may:
(a) change the Stated Maturity Date of the principal of or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets Collateral to the payment of principal of or interest on Notes or of distributions to the Preferred Shares Share Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place where, or the coin or currency in which, any Note or the principal thereof or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity Date thereof (or, in the case of redemption, on or after the applicable Redemption Date);
(b) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders the Holders thereof whose consent is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
(c) impair or adversely affect the Assets Collateral except as otherwise permitted in this Indenture;
(d) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Assets Collateral or terminate such lien on any property at any time subject hereto or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, Note of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets Collateral or rescind the Trustee’s any election to preserve the Assets Collateral pursuant to Section 5.5 or to sell or liquidate the Assets Collateral pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Outstanding Notes whose holders’ consent is required for any such action or to provide that other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each outstanding Outstanding Note affected thereby;
(g) modify the definition of the term terms “Outstanding” or “Reinvestment Period” or the provisions of Section 11.1 11.1(a) or Section 13.1 hereof;
(h) modify any of the provisions of this Indenture in such a manner as to affect the calculation of the amount of any payment of interest on or principal on of any Note on any Payment Date or of distributions to the Preferred Shares Share Paying Agent for the payment of distributions in respect of the Preferred Shares on any Payment Date (or any other date) or to affect the rights of the Holders of Securities Securityholders to the benefit of any provisions for the redemption of such Securities contained herein; provided, however, that no supplemental indenture may ;
(i) reduce the permitted minimum denominations of the Notes below the minimum denomination necessary to maintain an exemption from the registration requirements of the Securities Act or the 1940 Act;
(j) modify any provisions regarding limited non- recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If ; or
(k) modify any Class provisions of Notes are Outstanding and rated by a Rating Agency, the Trustee shall not enter into any such Section 8.1 or this Section 8.2 (with respect to supplemental indenture if, as a result of such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawnindentures). The Trustee and the Note Administrator shall be entitled to rely upon an Opinion of Counsel provided by and at the expense Officer’s Certificate of the party requesting such supplemental indenture Issuer (or the Collateral Manager on its behalf) in determining whether or not the Holders of Securities Securityholders would be materially or adversely affected by such change (after giving notice of such change to the Holders of SecuritiesSecurityholders). Such determination shall be conclusive and binding on all present and future Holders of SecuritiesSecurityholders. The Neither the Trustee nor the Note Administrator shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act of Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to this Section 8.2, the Trustee, at the expense of the Issuer, shall mail to the Securityholders, each Hedge Counterparty, the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding rating. Any failure of the Trustee to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenturefaith.
Appears in 1 contract
Supplemental Indentures With Consent of Securityholders. Except With the consent (evidenced as set forth below, with the written consent provided in Article VII hereof) of (a) the Holders of not less than a Majority majority in Aggregate Outstanding Amount (excluding any Notes owned aggregate principal amount of the Securities at the time Outstanding, the Issuer, when authorized by the Collateral Manager a resolution of its Board of Directors or any committee of its Affiliatessuch Board duly authorized to act on behalf of such Board, or by any accounts managed by them) of the Notes of each Class materially and adversely affected thereby and the Holders of a Majority of Preferred Shares if materially Trustee may, from time to time and adversely affected thereby by Act of said Securityholders delivered to the Trustee and the Co-Issuersat any time, and (b) the consent of each Hedge Counterparty (to the extent required by the related Hedge Agreement), and subject to satisfaction of the Rating Agency Condition, the Trustee and the Co-Issuers may enter into one modify this Indenture or more any indentures supplemental hereto to add any provisions to, or change in any manner or eliminate any of the provisions of, this Indenture or modify in any manner the rights of the Holders of the Notes of such Class or the Preferred SharesSecurities; provided, as the case may be, under this Indenture. Unless notified by Holders of a Majority (excluding any Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them) of the Notes of any Class of Notes or Preferred Shares that such Class of Notes or Preferred Shares will be materially and adversely affected, the Trustee may rely on a certification of the Collateral Manager in determining whether or not such Class of Notes or Preferred Shares would be materially and adversely affected by such change (after giving 15 Business Days’ notice of such change to the Holders of such Class of Notes, the Holders of the Preferred Shares and each Hedge Counterparty). The Trustee may also rely on the consent of the Holders of the Preferred Shares or on a written Opinion of Counsel provided by and at the expense of the party requesting no such supplemental indenture in determining whether or not the Holders of the Preferred Shares would be adversely affected by such change (after giving notice of such change to the Holders of the Preferred Shares). Such determinations shall be conclusive and binding on all present and future Noteholders and Holders of the Preferred Shares. The consent of the Holders of the Preferred Shares shall be binding on all present and future Holders of the Preferred Shares. Without the consent of (x) each Hedge Counterparty (to the extent set forth in the related Hedge Agreement), (y) all of the Holders of each Outstanding Class of Notes adversely affected and (z) all the Holders of the Preferred Shares adversely affected, and in each such case subject to satisfaction of the Rating Agency Condition, no supplemental indenture may:
(a) change the Stated Maturity of the principal of of, or the due date of any installment of interest on any Note, reduce the principal amount thereof or the Note Interest Rate thereon or the Redemption Price with respect to any Note, change the date of any scheduled distribution on the Preferred Shares, or the Redemption Price with respect thereto, or change the earliest date on which any Note may be redeemed at the option of the Issuer, change the provisions of this Indenture that apply the proceeds of any Assets to the payment of principal of or interest on Notes (including Additional Amounts), any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect of the Preferred Shares or change any place whereinterest thereon, or the coin or currency in which, reduce any Note or the principal amount payable on redemption thereof or interest thereon is payable, upon a Change of Control or impair or affect the right of any Securityholder to institute suit for the enforcement payment thereof or make any change to Section 4.10 hereof that adversely affects the rights of any such payment on or after the Stated Maturity thereof (orHolders of the Securities, in each case without the case consent of redemptionthe Holder of each Security so affected, on or after the applicable Redemption Date);
(b) without the consent of the Holders of all Securities then Outstanding, (i) reduce the aforesaid percentage of Securities, the consent of the Holders of which is required for any such modification, or the percentage of Securities, the Aggregate Outstanding Amount consent of the Holders of Notes of each Class or the Notional Amount of Preferred Shares of Preferred Shareholders whose consent which is required for the authorization of any such supplemental indenture or for any waiver of compliance with certain provisions of this Indenture or certain Defaults hereunder or their consequences provided for in this Indenture;
, (cii) impair or adversely affect the Assets except as otherwise permitted in this Indenture;
(d) permit the creation of change any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part obligation of the Assets Issuer to maintain an office or terminate such lien on agency in the places and for the purposes specified in Section 4.2 or (iii) make any property at any time subject hereto change in Section 5.9 or deprive the Holder of any Note, or the Holder of any Preferred Share as an indirect beneficiary, of the security afforded to such Holder by the lien of this Indenture;
(e) reduce the percentage of the Aggregate Outstanding Amount of Holders of Notes of each Class whose consent is required to request the Trustee to preserve the Assets or rescind the Trustee’s election to preserve the Assets pursuant to Section 5.5 or to sell or liquidate the Assets pursuant to Section 5.4 or 5.5 hereof;
(f) modify any of the provisions of this Section 8.2, except to increase any percentage of outstanding Notes whose holders’ consent is required for any such action percentages or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder Holders of each outstanding Note Outstanding Security affected thereby;
(g) modify . Upon the definition request of the term “Outstanding” or the provisions Issuer, accompanied by a copy of Section 11.1 or Section 13.1 hereof;
(h) modify any a resolution of the provisions Board of this Indenture in Directors or any committee of such a manner as Board duly authorized to affect act on behalf of such Board, certified by the calculation Secretary or an Assistant Secretary of the amount Issuer authorizing the execution of any payment such supplemental indenture, and upon the filing with the Trustee of interest or principal on any Note on any Payment Date or of distributions to the Preferred Shares Paying Agent for the payment of distributions in respect evidence of the Preferred Shares on any Payment Date (or any consent of Securityholders and other date) or to affect the rights of the Holders of Securities to the benefit of any provisions for the redemption of such Securities contained herein; provideddocuments, howeverif any, that no supplemental indenture may reduce the permitted minimum denominations of the Notes or modify any provisions regarding limited recourse or non-petition covenants with respect to the Issuer and the Co-Issuer. If any Class of Notes are Outstanding and rated required by a Rating AgencySection 7.1 hereof, the Trustee shall not enter into any join with the Issuer in the execution of such supplemental indenture ifunless such supplemental indenture affects the Trustee's own rights, as a result of duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to enter into such supplemental indenture, such Rating Agency would cause the rating of any such Notes to be immediately reduced or withdrawn. At the cost of the Issuer, for so long as any Class of Notes shall remain Outstanding and is rated by a Rating Agency, the Trustee shall provide to such Rating Agency a copy of any proposed supplemental indenture at least 15 days prior to the execution thereof by the Trustee, and, for so long as such Notes are Outstanding and so rated, request written confirmation that such Rating Agency will not, as a result of such supplemental indenture, cause the rating of any such Class of Notes to be reduced or withdrawn. The Trustee shall be entitled to rely upon an Opinion of Counsel provided by and at the expense of the party requesting such supplemental indenture in determining whether or not the Holders of Securities would be adversely affected by such change (after giving notice of such change to the Holders of Securities). Such determination shall be conclusive and binding on all present and future Holders of Securities. The Trustee shall not be liable for any such determination made in good faith and in reliance upon an Opinion of Counsel delivered to the Trustee as described in Section 8.3 hereof. It shall not be necessary for any Act the consent of the Securityholders under this Section 8.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act consent shall approve the substance thereof. Promptly after the execution by the Issuer, the Co-Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section 8.2, the Trustee, at the expense of the Issuer, Issuer shall mail a notice thereof by first-class mail to the SecurityholdersHolders of Securities at their addresses as they shall appear on the Securities Register, each Hedge Counterparty, setting forth in general terms the Preferred Shares Paying Agent, the Collateral Manager, and, so long as the Notes are Outstanding and so rated, each Rating Agency a copy thereof based on an outstanding ratingsubstance of such supplemental indenture. Any failure of the Trustee Issuer to publish or mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
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Sources: Indenture (NRG Energy Inc)