brsp-20210720
0001717547false00017175472021-07-202021-07-20

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): July 20, 2021
 
BrightSpire Capital, Inc.
(Exact name of registrant as specified in its charter)
 
Maryland001-3837738-4046290
(State or other jurisdiction(Commission(IRS Employer
of incorporation)File Number)Identification No.)
 
590 Madison Avenue, 33rd Floor
New York, NY 10022
(Address of Principal Executive Offices, Including Zip Code)

Registrant’s telephone number, including area code: (212) 547-2631

Not Applicable
(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
            Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
            Soliciting material pursuant to Rule l4a-12 under the Exchange Act (17 CFR 240.14a-12)
 
            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:
Title of each class Trading Symbol(s)Name of each exchange on which registered
Class A common stock, par value $0.01 per shareBRSPNew York Stock Exchange
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
 
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.



Item 1.01 Entry Into a Material Definitive Agreement.

CLO Transaction Overview

On July 20, 2021 (the “CLO Closing Date”), BrightSpire Capital, Inc. (f/k/a Colony Credit Real Estate, Inc.) (the “Company”) entered into a collateralized loan obligation (the “CLO”) through its subsidiary real estate investment trust, BrightSpire Capital Mortgage Sub-REIT, LLC (f/k/a CLNC Mortgage Sub-REIT, LLC) (“Sub-REIT”), and two wholly-owned subsidiaries of Sub-REIT, BRSP 2021-FL1, Ltd., a newly formed exempted company incorporated with limited liability under the laws of the Cayman Islands, as issuer (the “Issuer”), and BRSP 2021-FL1, LLC, a Delaware limited liability company, as co-issuer (the “Co-Issuer” and together with the Issuer, the “CLO Issuers”). On the CLO Closing Date, the CLO-Issuers issued six classes of notes, the Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes (the “Offered Notes”), and the Issuer issued an additional two classes of notes, the Class F Notes and the Class G Notes, each in the principal amount and having the characteristics and designations set forth in the table and description below (together with the Offered Notes, the “Notes”). In addition, concurrently with the issuance of the Notes, the Issuer issued 56,000 Preferred Shares, par value $0.001 per share, and with an aggregate liquidation preference equal to $1,000 per share (the “Preferred Shares” and, together with the Notes, the “Securities”).

The CLO Issuers issued or co-issued the Notes, as applicable, pursuant to the terms of an indenture, dated as of July 20, 2021 (the “Indenture”), by and among the CLO Issuers, BrightSpire Capital Advancing Agent, LLC (f/k/a CLNC Advancing Agent, LLC) (“BRSP Advancing Agent”), as advancing agent (in such capacity, together with its permitted successors and assigns, the “Advancing Agent”), Wilmington Trust, National Association, as trustee (in such capacity, together with its permitted successors and assigns, the “Trustee”), and Wells Fargo Bank, National Association, as note administrator (together with its permitted successors and assigns, the “Note Administrator”) and as custodian. The Note Administrator will also act as paying agent, calculation agent, transfer agent, backup advancing agent and notes registrar for the Issuer. BrightSpire Capital Advisors, LLC (f/k/a CLNC Advisors, LLC), a subsidiary of the Company, will serve as the collateral manager for the Issuer (in such capacity, together with its permitted successors and assigns, the “Collateral Manager”). A copy of the Indenture is filed herewith as Exhibit 10.1 and is incorporated herein by reference.

Class of SecuritiesPrincipal or Notional AmountPercentage of the Aggregate Notional Amount of all SecuritiesRatings (Moody's/DBRS Morningstar)Initial Weighted Average Life of Notes (1)Extended Weighted Average of Notes (2)
Class A Notes $428,000,000 53.500 %Aaa(sf) / AAA(sf)2.70 years4.16 years
Class A-S Notes$88,000,000 11.000 %NR / AAA(sf)3.12 years4.80 years
Class B Notes$42,000,000 52.500 %NR / AA(low)(sf)3.16 years4.85 years
Class C Notes$50,000,000 6.250 %NR / A(low)(sf)3.44 years4.91 years
Class D Notes$50,000,000 6.250 %NR / BBB(sf)3.94 years4.91 years
Class E Notes$12,000,000 1.500 %NR / BBB(low)(sf)4.33 years4.91 years
Class F Notes$42,000,000 5.250 %NR / BB(low)(sf)4.65 years4.91 years
Class G Notes$32,000,000 4.000 %NR / B(low)(sf)4.84 years4.96 years
Preferred Shares$56,000,000 7.000 %NR / NRN/AN/A

(1)The weighted average life of each class of Notes has been calculated assuming certain collateral characteristics, including that there are no prepayments, defaults or delinquencies and certain other modeling assumptions. In addition, it is assumed that each commercial real estate loan pays off on its current maturity date without extension. There can be no assurances that such assumptions will be met.
(2)The weighted average life of each class of Notes has been calculated assuming certain collateral characteristics, including that there are no prepayments, defaults or delinquencies and certain other modeling assumptions. In addition, it is assumed that each commercial real estate loan is fully extended to its maximum contracted extension term. There can be no assurances that such assumptions will be met.

The Notes will mature at par on the payment date in August 2038, unless redeemed or repaid prior thereto.

The Indenture allows for the exchange of all or a portion of certain classes of Notes for proportionate interests in one or more classes of certain other notes, as further explained under the heading “Exchangeable Notes” below.

The Offered Notes were placed pursuant to a Placement Agreement, dated as of July 12, 2021, by and among the Issuer, the Co-Issuer, BrightSpire Capital Operating Company, LLC (f/k/a Credit RE Operating Company, LLC), Wells Fargo Securities, LLC, Morgan Stanley & Co. LLC, Barclays Capital Inc., Goldman Sachs & Co. LLC and Citigroup Global Markets Inc. BRSP 2021-FL1 DRE, LLC, which is an indirect subsidiary of the Company and wholly-owned subsidiary of Sub-REIT, acquired 100% of the Class F Notes, the Class G Notes and the Preferred Shares issued on the CLO Closing Date.




The Offered Notes represent limited recourse obligations of the Issuer and non-recourse obligations of the Co-Issuer payable solely from certain collateral interests acquired by the Issuer on and after the CLO Closing Date and pledged under the Indenture. To the extent the collateral is insufficient to make payments in respect of the Offered Notes, none of the Issuer, the Co-Issuer, any of their respective affiliates or any other person will have any obligation to pay any further amounts in respect of the Offered Notes. The Class F Notes and the Class G Notes, as well as any Classes of Notes acquired in exchange therefore, are not secured.

The Preferred Shares are subject to the terms and conditions of a Preferred Share Paying Agency Agreement, dated as of July 20, 2021, among the Issuer, Wells Fargo Bank, National Association, as preferred share paying agent and transfer agent, and MaplesFS Limited, as administrator and share registrar. The Preferred Shares will have no stated dividend rate except that two sub-classes of Preferred Shares each will have a dividend rate calculated on its notional amount pursuant to the Preferred Share Paying Agency Agreement. The holders of the Preferred Shares are entitled to receive monthly non-cumulative dividends on each payment date if and to the extent that funds are available for such purpose in accordance with the priority of payments and Cayman Islands law. Such dividends will be payable only to the extent of the Issuer’s distributable profits and/or share premium and only if the Issuer is and will remain solvent after such distributions are paid (each factor determined in accordance with Cayman Islands law). In addition, the holders of the Preferred Shares will be entitled to receive distributions in connection with the redemption thereof, payable from the collateral after payment of all specified amounts in accordance with the priority of payments and Cayman Islands law.

The Securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and unless so registered, may not be offered or sold in the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.

The proceeds from the issuance of the Securities on the CLO Closing Date, after payment of certain fees and expenses, were used to (i) purchase an initial portfolio of collateral interests, (ii) repay amounts owed by BRSP 2021-FL1 Funding, LLC (the “Seller”), a Delaware limited liability company and the seller of the collateral interests in respect of pre-closing financings, and (iii) undertake certain related activities.

The initial portfolio of collateral interests was purchased by the Issuer from the Seller pursuant to a Collateral Interest Purchase Agreement (the “Collateral Interest Purchase Agreement”), dated as of July 20, 2021, by and among the Issuer, the Seller and, solely with regard to certain tax covenants, Sub-REIT. Pursuant to the Collateral Interest Purchase Agreement, the Seller made certain representations and warranties to the Issuer with respect to the collateral interests. In the event that a material breach of a representation or warranty or material document defect with respect to any collateral interest exists, the Seller will have to either (a) correct or cure such breach of representation or warranty or material document defect in all material respects, within 90 days of discovery by the Seller or written notice from any party to the Indenture (to the extent such breach or defect is capable of being corrected or cured), (b) subject to the consent of a majority of each class of Notes (excluding any Notes held by the Seller or any of its affiliates), make a cash payment to the Issuer or (c) repurchase such collateral interest at a repurchase price calculated as set forth in the Collateral Interest Purchase Agreement.

The Notes

Collateral

The Offered Notes will be secured by, among other things, (i) the collateral interests (mortgage loans, combined loans (consisting of mortgage loans and mezzanine loans) and participations in mortgage loans or combined loans) acquired by the Issuer, including the CLO Closing Date collateral interests and any collateral interests acquired by the Issuer after the CLO Closing Date, (ii) the escrow accounts, the collection account, the participated loan collection account, the REO accounts, the cash collateral accounts, the payment account, the reinvestment account, the custodial account and the related security entitlements and all income from the investment of funds in any of the foregoing at any time credited to any of the foregoing accounts, (iii) the eligible investments purchased from deposits in certain accounts, (iv) the Issuer’s rights under certain agreements (including the Collateral Management Agreement, the Collateral Interest Purchase Agreement and the Servicing Agreement, each as defined herein), (v) all amounts delivered to the Note Administrator or its bailee (directly or through a securities intermediary), (vi) all other investment property, instruments and general intangibles in which the Issuer has an interest, other than certain excepted property, (vii) the Issuer’s ownership interests in and rights in all permitted subsidiaries and (viii) all proceeds of the foregoing (collectively, the “Collateral”). The Collateral will not include, and the Offered Notes will not be secured by, any interests in certain excepted property.

Maturity

The Notes will mature at par on the payment date in August 2038, unless redeemed or repaid prior thereto.

Interest Rate

For purposes of the below, “Benchmark” means, initially, LIBOR; provided that if LIBOR or the then-current alternative benchmark is replaced, then “Benchmark” means the applicable replacement.




Class A Notes. The Class A Notes will bear interest at a per annum rate equal to the sum of (a) the Benchmark plus (b)(i) with respect to each payment date (and related interest accrual period), 1.15% plus, (ii) with respect to each payment date (and related interest accrual period) on and after the payment date in May 2027, 0.25%.

Class A-S Notes. The Class A-S Notes will bear interest during each interest accrual period at a per annum rate equal to the sum of (a) the Benchmark plus, (b)(i) with respect to each payment date (and related interest accrual period), 1.60% plus, (ii) with respect to each payment date (and related interest accrual period) on and after the payment date in May 2027, 0.25%.

Class B Notes. The Class B Notes will bear interest during each interest accrual period at a per annum rate equal to the sum of (a) the Benchmark plus, (b)(i) with respect to each payment date (and related interest accrual period), 1.90% plus, (ii) with respect to each payment date (and related interest accrual period) on and after the payment date in May 2027, 0.50%.

Class C Notes. The Class C Notes will bear interest during each interest accrual period at a per annum rate equal to the sum of (a) the Benchmark plus, (b)(i) with respect to each payment date (and related interest accrual period), 2.15% plus, (ii) with respect to each payment date (and related interest accrual period) on and after the payment date in May 2027, 0.50%.

Class D Notes. The Class D Notes will bear interest during each interest accrual period at a per annum rate equal to the sum of (a) the Benchmark plus, (b)(i) with respect to each payment date (and related interest accrual period), 2.70% plus, (ii) with respect to each payment date (and related interest accrual period) on and after the payment date in May 2027, 0.50%.

Class E Notes. The Class E Notes will bear interest during each interest accrual period at a per annum rate equal to the sum of (a) the Benchmark plus, (b)(i) with respect to each payment date (and related interest accrual period), 3.45% plus, (ii) with respect to each payment date (and related interest accrual period) on and after the payment date in May 2027, 0.50%.

Class F Notes. The Class F Notes will bear interest during each interest accrual period at a per annum rate equal to the sum of (a) the Benchmark plus, (b) with respect to each payment date (and related interest accrual period), 5.00%.

Class G Notes. The Class G Notes will bear interest during each interest accrual period at a per annum rate equal to the sum of (a) the Benchmark plus, (b) with respect to each payment date (and related interest accrual period), 6.75% plus.

Interest on the Notes will be calculated based on the actual number of days in the related interest accrual period, assuming a 360-day year.

The failure to pay interest on the Class A Notes, the Class A-S Notes or the Class B Notes at any time or, if no Class A Notes, Class A-S Notes or Class B Notes are outstanding, on any other class of Notes at the time such class of Notes is the most senior class of Notes outstanding, will constitute an event of default under the Indenture (following any applicable grace period).

For so long as any class of Notes with a higher priority is outstanding, any interest due on the Class C Notes, the Class D Notes, the Class E Notes, the Class F Notes (including any corresponding Class F-E Notes and Class F-X Notes, if applicable) and the Class G Notes (including any corresponding Class G-E Notes and Class G-X Notes, if applicable) that is not paid as a result of the operation of the priority of payments on any payment date (any such interest, “Deferred Interest”) will be deferred, will not be considered “due and payable” and the failure to pay such Deferred Interest will not be an event of default under the Indenture. Any Deferred Interest will be added to the outstanding principal balance of such class of Notes (or with respect to the Interest Only MASCOT Notes (as defined below), will have the effect of increasing the notional amount of the related notes and will accrue interest at the applicable rate).

Principal payments on each class of Notes will be paid in accordance with the priority of payments set forth in the Indenture.

Exchangeable Notes

As noted above, the Indenture allows for the exchange of all or a portion of certain classes of Notes for proportionate interests in one or more classes of certain other Notes. Specifically, all or a portion of each of the Class F Notes or the Class G Notes, as applicable, may be exchanged by the holders thereof (such Notes to be exchanged, the “Exchangeable Notes”) for a corresponding (i) MASCOT P&I Note (as defined below) and (ii) a MASCOT Interest Only Note (as defined below). All or a portion of each class of Exchangeable Notes may be exchanged as follows: (a) the Class F Notes may be exchanged for proportionate interests in the Class F-E Notes (the “Class F-E Notes”) and the Class F-X Notes (the “Class F-X Notes”) and (b) the Class G Notes may be exchanged for proportionate interests in the Class G-E Notes (the “Class G-E Notes” and, together with the Class F-E Notes, the “MASCOT P&I Notes”) and the Class G-X Notes (the “Class G-X Notes” and, together with the Class F-X Notes, the “MASCOT Interest Only Notes,” and together with the MASCOT P&I Notes, the “MASCOT Notes”). The MASCOT Interest Only Notes receive interest payments but do not receive principal payments. Interest on the MASCOT Interest



Only Notes is calculated on a balance equal to the aggregate outstanding amount on such date of the related MASCOT P&I Note.

With respect to an exchange of the Class F Notes or the Class G Notes, as applicable, for MASCOT Notes, the principal balance of the applicable MASCOT P&I Note received in the exchange will be equal to the principal balance of the Class F Note or Class G Note, as applicable, surrendered in such exchange. The notional balance of a MASCOT Interest Only Note received in an exchange will be equal to the principal balance of the applicable MASCOT P&I Note received in the exchange. The per annum interest rates payable on the MASCOT P&I Notes and the MASCOT Interest Only Notes will be determined, on the date of such exchange, by the holder of the Class F Notes or the Class G Notes, as applicable, surrendered in such exchange. The sum of the interest rates of MASCOT Notes received in any exchange will equal the rates assigned to each of the Class F Notes or the Class G Notes, as applicable, surrendered in such exchange.

All or a portion of each class of the MASCOT Notes received in an exchange may be subsequently exchanged for Class F Notes or Class G Notes, as applicable. The principal balance of the Class F Notes or the Class G Notes, as applicable, received in an exchange will be equal to the principal balance of the corresponding MASCOT P&I Notes surrendered in such exchange and the per annum interest rates payable on the Class F Notes or the Class G Notes, as applicable, received in such exchange will equal the rates assigned to each of the Class F Notes or the Class G Notes, as applicable.

Subordination of the Notes

In general, payments of interest and principal on any class of Notes are subordinate to all payments of interest and principal on any class of Notes with a more senior priority. Generally, all payments on the Notes will be subordinate to certain payments required to be made in respect of any interest advances and certain other expenses. Payments on the Notes will be senior to any payments on or in respect of the Preferred Shares to the extent required by the priority of payments set forth in the Indenture.

Note Protection Tests

The Notes are subject to note protection tests (the “Note Protection Tests”), which will be used primarily to determine whether and to what extent interest received on the collateral interests may be used to make certain payments subordinate to interest and principal payments to the Offered Notes in the priority of payments set forth in the Indenture.

If either of the Note Protection Tests are not satisfied as of any determination date, then on the next payment date, interest proceeds and, to the extent necessary after such application of interest proceeds, principal proceeds will be used to redeem the Offered Notes in accordance with the priority of payments until such Note Protection Tests are satisfied.

The following chart specifies the minimum ratios required for each Note Protection Test to be satisfied for the Offered Notes.

Note Protection Test
Ratio
Minimum Par Value
117.01%
Minimum Interest Coverage
120.00%

The par value ratio is, as of any measurement date, the number (expressed as a percentage) calculated by dividing (a) the net outstanding portfolio balance on such measurement date by (b) the sum of the aggregate outstanding amount of the Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes and the amount of any unreimbursed interest advances.

The interest coverage ratio is generally equal to the interest proceeds from the collateral portfolio divided by the interest payable on the Offered Notes.

Collateral Management Agreement

Certain advisory, administrative and monitoring functions relating to the collateral interests will be performed by the Collateral Manager, pursuant to a Collateral Management Agreement, dated as of July 20, 2021, between the Issuer and the Collateral Manager (the “Collateral Management Agreement”).

As compensation for the performance of its obligations as Collateral Manager, the Collateral Manager is entitled to receive a fee, payable monthly in arrears, equal to (unless waived) 0.10% per annum of the sum of the net outstanding portfolio balance to the extent funds are available. BrightSpire Capital Advisors, LLC (f/k/a CLNC Advisors, LLC) has agreed to waive its entitlement to such Collateral Manager fee for so long as BrightSpire Capital Advisors, LLC (f/k/a CLNC Advisors, LLC) or an affiliate is the Collateral Manager under the Collateral Management Agreement.

The Collateral Manager may be removed upon at least 30 days’ prior written notice if certain events of default have occurred, by the Issuer or the Trustee, if the holders of at least 66-2/3% in aggregate outstanding amount of each class of Notes then outstanding give written notice to the Collateral Manager, the Issuer and the Trustee directing such removal. The Collateral



Manager cannot be removed without cause but may resign as Collateral Manager upon 90 days’ prior written notice. Upon any resignation or removal of the Collateral Manager while any of the Notes are outstanding, holders of a majority of the Preferred Shares (excluding any Preferred Shares held by certain related parties) will have the right to instruct the Issuer to appoint an institution identified by such holders as replacement Collateral Manager. In the event that (i) 100% of the aggregate outstanding Preferred Shares are held by related parties, (ii) the proposed replacement Collateral Manager is an affiliate of the Collateral Manager, and (iii) the appointment of the proposed replacement Collateral Manager would constitute an “assignment” under the Investment Advisers Act of 1940, the holders of at least a majority of the aggregate outstanding principal balance of the most junior class of Notes not 100% owned by related parties (excluding any Notes held by related parties to the extent the replacement Collateral Manager is an affiliate of the Collateral Manager or the Collateral Manager has been removed after the occurrence of an event of default) may direct the Issuer to appoint an institution identified by such holders as replacement Collateral Manager.

Except with respect to the limitations set forth in the Indenture, the Collateral Manager is not obligated to pursue any particular investment strategy or opportunity with respect to the collateral interests.

Reinvestment Period

The CLO includes a 24-month reinvestment period (unless all of the Notes are redeemed or an event of default occurs and is continuing before such date) (the “Reinvestment Period”) during which the Issuer may acquire additional (a) mortgage loans, (b) combined loans or (c) participations in (i) a mortgage loan or (ii) a combined loan.

The Servicing Agreement

Except for certain non-serviced loans, the commercial real estate loans will be serviced by Keybank National Association, as servicer (the “Servicer”), and BrightSpire Capital Asset Management, LLC (f/k/a Colony Capital AMC OPCO, LLC), as special servicer (the “Special Servicer”), pursuant to a Servicing Agreement (the “Servicing Agreement”), dated as of July 20, 2021, by and among the Issuer, the Collateral Manager, the Servicer, the Special Servicer, the Advancing Agent, the Trustee and the Note Administrator.

The Servicing Agreement requires each of the Servicer and the Special Servicer to diligently service and administer the commercial real estate loans (other than certain non-serviced loans) and any applicable mortgaged property acquired directly or indirectly by the Special Servicer for the benefit of the secured parties under the Indenture. In connection with their respective duties under the Servicing Agreement, the Servicer and the Special Servicer (or any replacement servicer or special servicer) are entitled to monthly servicing and special servicing fees, as described in the Servicing Agreement.

The Issuer is a Taxable Mortgage Pool

The Issuer is a “taxable mortgage pool” (“TMP”) under the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”). So long as the Issuer is wholly-owned by Sub-REIT and Sub-REIT remains qualified as a real estate investment trust (“REIT”) under the Internal Revenue Code, the Issuer is expected to be treated as a “qualified REIT subsidiary” that is generally treated as part of Sub-REIT rather than as a fully taxable C corporation, which is the general treatment of a TMP that is not a wholly-owned subsidiary of a REIT.

However, “excess inclusion income” (“EII”) attributable to a TMP, if distributed to the stockholders of a REIT, is taxable in all events to those stockholders regardless of the general tax characteristics of, and any tax attributes (such as net operating losses) otherwise available to, such stockholders. For example, EII would be unrelated business taxable income if it were distributed as dividends to stockholders of the Company that are otherwise generally exempt from U.S. federal income tax. The Company does not intend to distribute EII to its stockholders, but to instead pay (or cause to be paid) corporate income tax on such EII as and when it arises. Although the Company does not expect that the amount of any such corporate income tax will be material, there are various uncertainties concerning the correct computation of EII, which are to be based on regulations that have not yet been issued. These uncertainties could increase the amount of EII taxable to the Company or Sub-REIT above the amount the Company anticipates, could result in a portion of the dividends distributed to stockholders being treated as EII, or both. For more information, see “Taxation of Colony Credit Real Estate, Inc.—Requirements for Qualification-Taxable Mortgage Pools” and related disclosure in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the Securities and Exchange Commission on February 25, 2021.

In addition, if the Issuer ceased to be a “qualified REIT subsidiary”, that would, subject to certain exceptions, generally be an event of default under the Indenture. In order for the Issuer to remain a “qualified REIT subsidiary” under the Internal Revenue Code, it must remain wholly-owned at all times by Sub-REIT or by another REIT. This generally will require Sub-REIT to retain not only all the equity in the Issuer, but also all of those classes of Notes as to which counsel to the Company is unable to render an opinion that they will be treated as indebtedness for U.S. federal income tax purposes if they are sold to another party. Such restrictions on transfer will restrict the liquidity of the equity in the Issuer and of the Class F Notes and the Class G Notes (or any related MASCOT Notes, if applicable), and indirectly the assets that secure the Notes, and could prevent the Company and Sub-REIT from transferring all or part of those positions in circumstances in which it would otherwise do so.




Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits. The following exhibits are being furnished herewith to this Current Report on Form 8-K.

Exhibit No.Description of Exhibit
10.1
104Cover Page Interactive Data File (embedded within the Inline XBRL document)



SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
Date: July 26, 2021BRIGHTSPIRE CAPITAL, INC.
By:/s/ David A. Palamé
Name:David A. Palamé
Title:General Counsel & Secretary
 


Document
Exhibit 10.1
Dated as of July 20, 2021
BRSP 2021-FL1, LTD.,
as Issuer
BRSP 2021-FL1, LLC,
as Co-Issuer
BRIGHTSPIRE CAPITAL ADVANCING AGENT, LLC
(F/K/A CLNC ADVANCING AGENT, LLC),
as Advancing Agent
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Note Administrator
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Custodian

INDENTURE


27865816.6.BUSINESS


TABLE OF CONTENTS
Page
ARTICLE 1

DEFINITIONS
Section 1.1    Definitions.
ARTICLE 2

THE NOTES
Section 2.1    Forms Generally.
Section 2.2    Forms of Notes and Certificate of Authentication.
Section 2.3    Authorized Amount; Stated Maturity Date; and Denominations.
Section 2.4    Execution, Authentication, Delivery and Dating.
Section 2.5    Registration, Registration of Transfer and Exchange.
Section 2.6    Mutilated, Defaced, Destroyed, Lost or Stolen Note.
Section 2.7    Payment of Principal and Interest and Other Amounts; Principal and Interest Rights Preserved.
Section 2.8    Persons Deemed Owners.
Section 2.9    Cancellation.
Section 2.10    Global Notes; Definitive Notes; Temporary Notes.
Section 2.11    U.S. Tax Treatment of Notes and the Issuer; AML Compliance.
Section 2.12    Authenticating Agents.
Section 2.13    Forced Sale on Failure to Comply with Restrictions.
Section 2.14    No Gross Up.
Section 2.15    Credit Risk Retention.
Section 2.16    Exchangeable Notes; Exchange of MASCOT Notes.
Section 2.17    Effect of Benchmark Transition Event.
- i -
27865816.6.BUSINESS


ARTICLE 3

CONDITIONS PRECEDENT; PLEDGED COLLATERAL INTERESTS
Section 3.1    General Provisions.
Section 3.2    Security for Offered Notes.
Section 3.3    Transfer of Collateral.
ARTICLE 4

SATISFACTION AND DISCHARGE
Section 4.1    Satisfaction and Discharge of Indenture.
Section 4.2    Application of Amounts held in Trust.
Section 4.3    Repayment of Amounts Held by Paying Agent.
Section 4.4    Limitation on Obligation to Incur Company Administrative Expenses.
ARTICLE 5

REMEDIES
Section 5.1    Events of Default.
Section 5.2    Acceleration of Maturity; Rescission and Annulment.
Section 5.3    Collection of Indebtedness and Suits for Enforcement by Trustee.
Section 5.4    Remedies.
Section 5.5    Preservation of Collateral.
Section 5.6    Trustee May Enforce Claims Without Possession of Notes.
Section 5.7    Application of Amounts Collected.
Section 5.8    Limitation on Suits.
Section 5.9    Unconditional Rights of Noteholders to Receive Principal and Interest.
Section 5.10    Restoration of Rights and Remedies.
Section 5.11    Rights and Remedies Cumulative.
Section 5.12    Delay or Omission Not Waiver.
Section 5.13    Control by the Controlling Class.
Section 5.14    Waiver of Past Defaults.
Section 5.15    Undertaking for Costs.
Section 5.16    Waiver of Stay or Extension Laws.
Section 5.17    Sale of Collateral.
27865816.6.BUSINESS


Section 5.18    Action on the Notes.
ARTICLE 6

THE TRUSTEE AND NOTE ADMINISTRATOR
Section 6.1    Certain Duties and Responsibilities.
Section 6.2    Notice of Default.
Section 6.3    Certain Rights of Trustee and Note Administrator.
Section 6.4    Not Responsible for Recitals or Issuance of Notes.
Section 6.5    May Hold Notes.
Section 6.6    Amounts Held in Trust.
Section 6.7    Compensation and Reimbursement.
Section 6.8    Corporate Trustee Required; Eligibility.
Section 6.9    Resignation and Removal; Appointment of Successor.
Section 6.10    Acceptance of Appointment by Successor.
Section 6.11    Merger, Conversion, Consolidation or Succession to Business of Trustee and Note Administrator.
Section 6.12    Co-Trustees and Separate Trustee.
Section 6.13    Direction to enter into the Servicing Agreement.
Section 6.14    Representations and Warranties of the Trustee.
Section 6.15    Representations and Warranties of the Note Administrator.
Section 6.16    Requests for Consents.
Section 6.17    Withholding.
ARTICLE 7

COVENANTS
Section 7.1    Payment of Principal and Interest.
Section 7.2    Maintenance of Office or Agency.
Section 7.3    Amounts for Note Payments to be Held in Trust.
Section 7.4    Existence of the Issuer and Co-Issuer.
Section 7.5    Protection of Collateral.
Section 7.6    Notice of Any Amendments.
Section 7.7    Performance of Obligations.
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Section 7.8    Negative Covenants.
Section 7.9    Statement as to Compliance.
Section 7.10    Issuer and Co-Issuer May Consolidate or Merge Only on Certain Terms.
Section 7.11    Successor Substituted.
Section 7.12    No Other Business.
Section 7.13    Reporting.
Section 7.14    Calculation Agent.
Section 7.15    REIT Status.
Section 7.16    Permitted Subsidiaries.
Section 7.17    Repurchase Requests.
Section 7.18    [Reserved]
Section 7.19    [Reserved]
Section 7.20    Servicing of Commercial Real Estate Loans and Control of Servicing Decisions.
Section 7.21    ABS Due Diligence Services.
ARTICLE 8

SUPPLEMENTAL INDENTURES
Section 8.1    Supplemental Indentures Without Consent of Securityholders.
Section 8.2    Supplemental Indentures with Consent of Securityholders.
Section 8.3    Execution of Supplemental Indentures.
Section 8.4    Effect of Supplemental Indentures.
Section 8.5    Reference in Notes to Supplemental Indentures.
ARTICLE 9

REDEMPTION OF SECURITIES; REDEMPTION PROCEDURES
Section 9.1    Clean-up Call; Tax Redemption; Optional Redemption; and Auction Call Redemption.
Section 9.2    Notice of Redemption.
Section 9.3    Notice of Redemption or Maturity.
Section 9.4    Notes Payable on Redemption Date.
Section 9.5    Mandatory Redemption.
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ARTICLE 10

ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 10.1    Collection of Amounts; Custodial Account.
Section 10.2    Reinvestment Account.
Section 10.3    Payment Account.
Section 10.4    [Reserved].
Section 10.5    [Reserved].
Section 10.6    [Reserved].
Section 10.7    Interest Advances.
Section 10.8    Reports by Parties.
Section 10.9    Reports; Accountings.
Section 10.10    Release of Collateral Interests; Release of Collateral.
Section 10.11    [Reserved].
Section 10.12    Information Available Electronically.
Section 10.13    Investor Q&A Forum; Investor Registry.
Section 10.14    Certain Procedures.
ARTICLE 11

APPLICATION OF FUNDS
Section 11.1    Disbursements of Amounts from Payment Account.
Section 11.2    Securities Accounts.
ARTICLE 12

SALE OF COLLATERAL INTERESTS; REINVESTMENT COLLATERAL INTERESTS; EXCHANGE COLLATERAL INTERESTS; FUTURE FUNDING ESTIMATES
Section 12.1    Sales of Collateral Interests.
Section 12.2    Reinvestment Collateral Interests.
Section 12.3    Conditions Applicable to all Transactions Involving Sale or Grant.
Section 12.4    Modifications to Note Protection Tests.
Section 12.5    Future Funding Agreement.
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ARTICLE 13

NOTEHOLDERS’ RELATIONS
Section 13.1    Subordination.
Section 13.2    Standard of Conduct.
ARTICLE 14

MISCELLANEOUS
Section 14.1    Form of Documents Delivered to the Trustee and Note Administrator.
Section 14.2    Acts of Securityholders.
Section 14.3    Notices, etc., to the Trustee, the Note Administrator, the Issuer, the Co-Issuer, the Advancing Agent, the Servicer, the Special Servicer, the Preferred Share Paying Agent, the Placement Agents, the Collateral Manager and the Rating Agencies.
Section 14.4    Notices to Noteholders; Waiver.
Section 14.5    Effect of Headings and Table of Contents.
Section 14.6    Successors and Assigns.
Section 14.7    Severability.
Section 14.8    Benefits of Indenture.
Section 14.9    Governing Law; Waiver of Jury Trial.
Section 14.10    Submission to Jurisdiction.
Section 14.11    Counterparts.
Section 14.12    Liability of Co-Issuers.
Section 14.13    17g-5 Information.
Section 14.14    Rating Agency Condition.
Section 14.15    Patriot Act Compliance.
ARTICLE 15

ASSIGNMENT OF THE COLLATERAL INTEREST PURCHASE AGREEMENTS AND THE COLLATERAL MANAGEMENT AGREEMENT
Section 15.1    Assignment of Collateral Interest Purchase Agreements and the Collateral Management Agreement.
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ARTICLE 16

CURE RIGHTS; PURCHASE RIGHTS
Section 16.1    [Reserved].
Section 16.2    Collateral Interest Purchase Agreements.
Section 16.3    Representations and Warranties Related to Collateral Interests Acquired after the Closing Date.
Section 16.4    Operating Advisor.
Section 16.5    Purchase Right; Holder of a Majority of the Preferred Shares.
ARTICLE 17

ADVANCING AGENT
Section 17.1    Liability of the Advancing Agent.
Section 17.2    Merger or Consolidation of the Advancing Agent.
Section 17.3    Limitation on Liability of the Advancing Agent and Others.
Section 17.4    Representations and Warranties of the Advancing Agent.
Section 17.5    Resignation and Removal; Appointment of Successor.
Section 17.6    Acceptance of Appointment by Successor Advancing Agent.
Section 17.7    Removal and Replacement of Backup Advancing Agent.


SCHEDULES
Schedule A    Schedule of Collateral Interests
Schedule B    Benchmark
Schedule C    List of Authorized Officers of Collateral Manager
EXHIBITS
Exhibit A-1    Form of Class A Senior Secured Floating Rate Note (Global Note)
Exhibit A-2    Form of Class A Senior Secured Floating Rate Note (Definitive Note)
Exhibit B-1    Form of Class A-S Second Priority Secured Floating Rate Note (Global Note)
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Exhibit B-2    Form of Class A-S Second Priority Secured Floating Rate Note (Definitive Note)
Exhibit C-1    Form of Class B Third Priority Secured Floating Rate Note (Global Note)
Exhibit C-2    Form of Class B Third Priority Secured Floating Rate Note (Definitive Note)
Exhibit D-1    Form of Class C Fourth Priority Secured Floating Rate Note (Global Note)
Exhibit D-2    Form of Class C Fourth Priority Secured Floating Rate Note (Definitive Note)
Exhibit E-1    Form of Class D Fifth Priority Secured Floating Rate Note (Global Note)
Exhibit E-2    Form of Class D Fifth Priority Secured Floating Rate Note (Definitive Note)
Exhibit F-1    Form of Class E Sixth Priority Secured Floating Rate Note (Global Note)
Exhibit F-2    Form of Class E Sixth Priority Secured Floating Rate Note (Definitive Note)
Exhibit G-1    Form of Class F Seventh Priority Floating Rate Note (Global Note)
Exhibit G-2    Form of Class F Seventh Priority Floating Rate Note (Definitive Note)
Exhibit G-3    Form of Class F-E Seventh Priority Floating Rate Note (Global Note)
Exhibit G-4    Form of Class F-E Seventh Priority Floating Rate Note (Definitive Note)
Exhibit G-5    Form of Class F-X Seventh Priority Floating Rate Note (Global Note)
Exhibit G-6    Form of Class F-X Seventh Priority Floating Rate Note (Definitive Note)
Exhibit H-1    Form of Class G Eighth Priority Floating Rate Note (Global Note)
Exhibit H-2    Form of Class G Eighth Priority Floating Rate Note (Definitive Note)
Exhibit H-3    Form of Class G-E Eighth Priority Floating Rate Note (Global Note)
Exhibit H-4    Form of Class G-E Eighth Priority Floating Rate Note (Definitive Note)
Exhibit H-5    Form of Class G-X Eighth Priority Floating Rate Note (Global Note)
Exhibit H-6    Form of Class G-X Eighth Priority Floating Rate Note (Definitive Note)
Exhibit I-1    Form of Transfer Certificate – Regulation S Global Note
Exhibit I-2    Form of Transfer Certificate – Rule 144A Global Note
Exhibit I-3    Form of Transfer Certificate – Definitive Note
Exhibit J    [Reserved]
Exhibit K    Form of Custodian Receipt
Exhibit L    Form of Request for Release
Exhibit M    Form of Auction Call Procedure
Exhibit N    Form of NRSRO Certification
Exhibit O    Form of Representations and Warranties For Collateral Interests
Exhibit P    Form of Note Administrator’s Monthly Report
Exhibit Q-1    Form of Investor Certification (for Non-Borrower Affiliates)
Exhibit Q-2    Form of Investor Certification (for Borrower Affiliates)
Exhibit R     Form of Online Market Data Provider Certification
Exhibit S     Form of Officer’s Certificate of the Collateral Manager with Respect to the Acquisition of Collateral Interests
Exhibit T     MASCOT Note Officer’s Certificate
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INDENTURE, dated as of July 20, 2021, by and among BRSP 2021-FL1 LTD., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Issuer”), BRSP 2021-FL1, LLC, a limited liability company formed under the laws of Delaware (the “Co-Issuer”), WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (herein, together with its permitted successors and assigns in the trusts hereunder, the “Trustee”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as note administrator, paying agent, calculation agent, transfer agent, authenticating agent, notes registrar and backup advancing agent (in all of the foregoing capacities, together with its permitted successors and assigns, the “Note Administrator”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as custodian (herein, together with its permitted successors and assigns in the trusts hereunder, the “Custodian”), and BRIGHTSPIRE CAPITAL ADVANCING AGENT, LLC (F/K/A CLNC ADVANCING AGENT, LLC) (including any successor by merger, “BRSP Advancing”), a Delaware limited liability company, as advancing agent (herein, together with its permitted successors and assigns in the trusts hereunder, the “Advancing Agent”).
PRELIMINARY STATEMENT
Each of the Issuer and the Co-Issuer is duly authorized to execute and deliver this Indenture to provide for the Notes issuable as provided in this Indenture. All covenants and agreements made by the Issuer and Co-Issuer herein are for the benefit and security of the Secured Parties. The Issuer, the Co-Issuer, the Note Administrator, in all of its capacities hereunder, the Custodian, the Trustee and the Advancing Agent are entering into this Indenture, and the Trustee is accepting the trusts created hereby, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid agreement of the Issuer and Co-Issuer in accordance with this Indenture’s terms have been done.
GRANTING CLAUSES
The Issuer hereby Grants to the Trustee, for the benefit and security of the Secured Parties, all of its right, title and interest in, to and under, in each case, whether now owned or existing, or hereafter acquired or arising out of (in each case, to the extent of the Issuer’s interest therein and specifically excluding any interest in the related Future Funding Participation therein and excluding any interest in the Excepted Property):
(a)    the Closing Date Collateral Interests listed on Schedule A which the Issuer purchases on the Closing Date and causes to be delivered to the Trustee (directly to the custodian on its behalf) herewith, including all payments thereon or with respect thereto, and all Collateral Interests which are delivered to the Trustee (directly to the custodian on its behalf) after the Closing Date pursuant to the terms hereof (including all Reinvestment Collateral Interests acquired by the Issuer after the Closing Date) and all payments thereon or with respect thereto, in each case, other than Retained Interests, if any, under, and as defined in, the applicable Collateral Interest Purchase Agreement;
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(b)    the Servicing Accounts, the Indenture Accounts and the related security entitlements and all income from the investment of funds in any of the foregoing at any time credited to any of the foregoing accounts;
(c)    the Eligible Investments;
(d)    the rights of the Issuer under the Collateral Management Agreement, any Collateral Interest Purchase Agreement, the Company Administration Agreement, the AML Services Agreement, the Registered Office Agreement and the Servicing Agreement;
(e)    all amounts delivered to the Note Administrator (directly or through a securities intermediary);
(f)    all other investment property, instruments and general intangibles in which the Issuer has an interest, other than the Excepted Property;
(g)    the Issuer’s ownership interest in, and rights to, all Permitted Subsidiaries; and
(h)    all proceeds with respect to the foregoing clauses (a) through (g).
The collateral described in the foregoing clauses (a) through (h), with the exception of the Excepted Property, is referred to herein as the “Collateral.” Such Grants are made to secure the Offered Notes equally and ratably without prejudice, priority or distinction between any Offered Note and any other Offered Note for any reason, except as expressly provided in this Indenture (including, but not limited to, the Priority of Payments) and to secure (i) the payment of all amounts due on and in respect of the Offered Notes in accordance with their terms, (ii) the payment of all other sums payable under this Indenture, apart from any amounts payable in respect of the Class F Notes, the Class G Notes, and related MASCOT Notes for which the Class F Notes or the Class G Notes are exchanged, and (iii) compliance with the provisions of this Indenture, all as provided in this Indenture (together, the “Secured Obligations”). Notwithstanding anything in this Indenture to the contrary, for all purposes hereunder, amounts payable under the Class F Notes or Class G Notes shall not constitute Secured Obligations, and no Holder of Class F Notes, Class G Notes or any related MASCOT Notes for which the Class F Notes or the Class G Notes are exchanged shall be a secured party for purposes of the Grant by virtue of holding such Notes. The foregoing Grant shall, for the purpose of determining the property subject to the lien of this Indenture, be deemed to include any securities and any investments granted by or on behalf of the Issuer to the Trustee for the benefit of the Secured Parties, whether or not such securities or such investments satisfy the criteria set forth in the definitions of “Collateral Interest” or “Eligible Investment,” as the case may be.
Except to the extent otherwise provided in this Indenture, this Indenture shall constitute a security agreement under the laws of the State of New York applicable to agreements made and to be performed therein, for the benefit of the Noteholders. Upon the occurrence and during the continuation of any Event of Default hereunder, and in addition to any other rights available under this Indenture or any other Collateral held for the benefit and security of the Noteholders or otherwise available at law or in equity but subject to the terms hereof, the Trustee shall have
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all rights and remedies of a secured party under the laws of the State of New York and other applicable law to enforce the assignments and security interests contained herein and, in addition, shall have the right, subject to compliance with any mandatory requirements of applicable law and the terms of this Indenture, to exercise, sell or apply any rights and other interests assigned or pledged hereby in accordance with the terms hereof at public and private sale.
The Trustee acknowledges such Grants, accepts the trusts hereunder in accordance with the provisions hereof, and agrees to perform the duties herein in accordance with, and subject to, the terms hereof, in order that the interests of the Secured Parties may be adequately and effectively protected in accordance with this Indenture.
Notwithstanding anything in this Indenture to the contrary, for all purposes hereunder, no holder of Class F Notes, Class F-E Notes, Class F-X Notes, Class G Notes, Class G-E Notes and/or Class G-X Notes shall be a secured party for purposes of the Grant by virtue of holding such Notes.
CREDIT RISK RETENTION
On the Closing Date, pursuant to the EU/UK Risk Retention Letter, the Retention Holder will retain 100% of the Preferred Shares. The Preferred Shares are referred to in this Indenture as the EHRI. The fair value of the EHRI is $56,000,000.
ARTICLE 1

DEFINITIONS
Section 1.1    Definitions. Except as otherwise specified herein or as the context may otherwise require, the following terms have the respective meanings set forth below for all purposes of this Indenture, and the definitions of such terms are equally applicable both to the singular and plural forms of such terms and to the masculine, feminine and neuter genders of such terms. The word “including” and its variations shall mean “including without limitation.” Whenever any reference is made to an amount the determination of which is governed by Section 1.2, the provisions of Section 1.2 shall be applicable to such determination or calculation, whether or not reference is specifically made to Section 1.2, unless some other method of calculation or determination is expressly specified in the particular provision. All references in this Indenture to designated “Articles,” “Sections,” “Subsections” and other subdivisions are to the designated Articles, Sections, Subsections and other subdivisions of this Indenture as originally executed. The words “herein,” “hereof,” “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section, Subsection or other subdivision.
17g-5 Information”: The meaning specified in Section 14.3(i).
17g-5 Information Provider”: The meaning specified in Section 14.13(a).
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17g-5 Website”: A password-protected internet website maintained by the 17g-5 Information Provider, which shall initially be located at www.ctslink.com, under the “NRSRO” tab for this transaction. Any change of the 17g-5 Website shall only occur after notice has been delivered by the 17g-5 Information Provider to the Issuer, the Note Administrator, the Trustee, the Collateral Manager, the Placement Agents and the Rating Agencies, which notice shall set forth the date of change and new location of the 17g-5 Website.
1940 Act”: Investment Company Act of 1940, as amended.
Accepted Loan Servicer”: Any commercial real estate loan master or primary servicer that (a) is engaged in the business of servicing commercial real estate loans (with a minimum servicing portfolio of $100,000,000) that are comparable to the Collateral Interests owned or to be owned by the Issuer, (b) within the prior twelve (12) month period, has acted as a servicer in a commercial mortgage backed securities transaction rated by Moody’s and as to which Moody’s has not cited servicing concerns of such servicer as the sole or material factor in any downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any commercial mortgage backed securities transaction serviced by such servicer prior to the time of determination and (c) within the prior twelve (12) month period, has acted as a servicer in a commercial mortgage backed securities transaction rated by DBRS Morningstar and DBRS Morningstar has not cited servicing concerns of such servicer as the sole or material factor in any downgrade or withdrawal of the ratings (or placement on “watch status” in contemplation of a ratings downgrade or withdrawal) of securities in any commercial mortgage backed securities transaction serviced by such servicer prior to the time of determination.
Access Termination Notice”: The meaning specified in the Future Funding Agreement.
Account”: Any of the Servicing Accounts, the Indenture Accounts, and the Preferred Share Distribution Account.
Accountants’ Report”: A report of a firm of Independent certified public accountants of recognized national reputation.
Acquisition and Disposition Requirements”: With respect to any acquisition (whether by purchase, exchange or otherwise) or disposition of a Collateral Interest, satisfaction of each of the following conditions: (a) such Collateral Interest is being acquired or disposed of in accordance with the terms and conditions set forth in this Indenture; (b) the acquisition or disposition of such Collateral Interest does not result in a reduction or withdrawal of the then current rating issued by Moody’s or DBRS Morningstar on any Class of Notes then outstanding; and (c) such Collateral Interest is not being acquired or disposed of for the primary purpose of recognizing gains or decreasing losses resulting from market value changes.
Acquisition Criteria”: The meaning specified in Section 12.2(a).
Act” or “Act of Securityholders”: The meaning specified in Section 14.2.
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Administrative Modification”: The meaning specified in the Servicing Agreement.
Advance Rate”: The meaning specified in the Servicing Agreement.
Advancing Agent”: BrightSpire Capital Advancing Agent, LLC (f/k/a CLNC Advancing Agent, LLC), a Delaware limited liability company, solely in its capacity as advancing agent hereunder, unless a successor Person shall have become the Advancing Agent pursuant to the applicable provisions of this Indenture, and thereafter “Advancing Agent” shall mean such successor Person.
Advancing Agent Fee”: The fee payable monthly in arrears on each Payment Date to the Advancing Agent or Backup Advancing Agent, as applicable, in accordance with the Priority of Payments, equal to 0.02% per annum (calculated based on the actual number of days in the applicable Interest Accrual Period divided by three hundred and sixty (360)) on the Aggregate Outstanding Amount of the Class A Notes, the Class A-S Notes and the Class B Notes on such Payment Date prior to giving effect to distributions with respect to such Payment Date.
Advisers Act”: The Investment Advisers Act of 1940, as amended.
Advisory Committee”: The meaning specified in the Collateral Management Agreement.
Affiliate”: With respect to a Person, (a) any other Person who, directly or indirectly, is in control of, or controlled by, or is under common control with, such Person or (b) any other Person who is a director, Officer or employee (i) of such Person, (ii) of any subsidiary or parent company of such Person or (iii) of any Person described in clause (a) above. For the purposes of this definition, control of a Person shall mean the power, direct or indirect, (A) to vote more than 50% of the securities having ordinary voting power for the election of directors of such Person, or (B) to direct or cause the direction of the management and policies of such Person whether by contract or otherwise; provided that neither the Company Administrator nor any other company, corporation or Person to which the Company Administrator provides directors and/or administrative services and/or acts as share trustee shall be an Affiliate of the Issuer or Co-Issuer. The Note Administrator, the Servicer and the Trustee may rely on certifications of any Holder or party hereto regarding such Person’s affiliations.
Agent Members”: Members of, or participants in, the Depository, Clearstream, Luxembourg or Euroclear.
Aggregate Outstanding Amount”: With respect to any Class or Classes of the Notes as of any date of determination, the aggregate principal balance of such Class or Classes of Notes Outstanding as of such date of determination plus (a) in the case of the Class C Notes, any Class C Deferred Interest, (b) in the case of the Class D Notes, any Class D Deferred Interest, (c) in the case of the Class E Notes, any Class E Deferred Interest, (d) in the case of the Class F Notes, any Class F Deferred Interest, (e) in the case of the Class F-E Notes, any Class F-E Deferred Interest, (f) in the case of the Class G Notes, any Class G Deferred Interest or (g) in the case of the Class G-E Notes, any Class G-E Deferred Interest.
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Aggregate Outstanding Notional Amount”: With respect to any MASCOT Interest Only Notes on any date of determination, the aggregate notional amount of such MASCOT Interest Only Notes, which will equal the Aggregate Outstanding Amount on such date of the MASCOT P&I Notes that were issued with such MASCOT Interest Only Notes in connection with an exchange. For the avoidance of doubt, any payment of principal to any MASCOT P&I Notes will constitute a corresponding reduction of the Aggregate Outstanding Notional Amount of the related MASCOT Interest Only Notes.
Aggregate Outstanding Portfolio Balance”: On the date of determination thereof, the sum of (without duplication) (a) the Aggregate Principal Balance of the Collateral Interests, (b) the aggregate Principal Balance of all Principal Proceeds held as Cash or Eligible Investments and (c) all Cash and Eligible Investments held in the Reinvestment Account.
Aggregate Principal Balance”: When used with respect to any Collateral Interests as of any date of determination, the sum of the Principal Balances on such date of determination of all such Collateral Interests.
Amended Participation Agreement”: With respect to a Participated Loan, the amended and restated participation agreement (and not a participation agreement), if applicable, that governs the rights and obligations of the holders of the related Owned Participation, each related Future Funding Participation and/or each related Funded Companion Participation.
AML Compliance”: Compliance with the Cayman AML Regulations.
AML Services Agreement”: The agreement between the Issuer and MCSL (as amended from time to time) for the provision of services to the Issuer to enable the Issuer to achieve AML Compliance.
Appraisal”: The meaning specified in the Servicing Agreement.
Appraisal Reduction Amount”: For any Collateral Interest with respect to which an Appraisal Reduction Event has occurred, an amount equal to the excess, if any, of (a) the Principal Balance thereof, plus all other amounts due and unpaid with respect thereto, over (b) the sum of (i) an amount equal to 90% of the aggregate appraised value for the underlying mortgaged properties related to such Collateral Interest (net of any liens senior to the lien of the related mortgage) as determined by an Updated Appraisal on each such underlying mortgaged property related to such Collateral Interest, plus (ii) the aggregate amount of all reserves, letters of credit and escrows held in connection therewith (other than escrows and reserves for unpaid real estate taxes and assessments and insurance premiums), plus (iii) all insurance and casualty proceeds and condemnation awards that constitute collateral therefor (whether paid or then payable by any insurance company or government authority). With respect to any Collateral Interest that is a Participation, any Appraisal Reduction Amount will be allocated to such participation interest as provided under the applicable Participation Agreement or Amended Participation Agreement, as applicable.
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Appraisal Reduction Event”: With respect to any Collateral Interest, the occurrence of any of the following events: (a) the 90th day following the occurrence of any uncured delinquency in any monthly payment; (b) receipt of notice that the related borrower has filed a bankruptcy petition or the date on which a receiver is appointed and continues in such capacity or the 90th day after the related borrower becomes the subject of involuntary bankruptcy proceedings and such proceedings are not dismissed; (c) the date on which any related underlying mortgaged property becomes an REO Property as set forth pursuant to the Servicing Agreement; (d) the date on which such Collateral Interest becomes a Modified Collateral Interest; or (e) a payment default occurs with respect to a balloon payment due on such Collateral Interest; provided, however, that if (i) the related borrower is diligently seeking a refinancing commitment, (ii) the related borrower continues to make its original scheduled payments, (iii) no other Appraisal Reduction Event has occurred with respect to such Collateral Interest, and (iv) the Collateral Manager consents, then an Appraisal Reduction Event with respect to this clause (v) will be deemed not to occur on or before the 60th day after the original maturity date (inclusive of all extension options that the related borrower had the right to elect and did so elect pursuant to the instrument related to such Collateral Interest) of such Collateral Interest; and provided, further, that if the related borrower has delivered to the Servicer, on or before the 60th day after the original maturity date, a refinancing Commitment Letter or purchase and sale agreement reasonably acceptable to the Servicer, and the borrower continues to make its original scheduled payments and no other Appraisal Reduction Event has occurred with respect to such Collateral Interest, then an Appraisal Reduction Event will be deemed not to occur until the earlier of (A) 90 days following the original maturity date of such Collateral Interest and (B) termination of the refinancing Commitment Letter or purchase and sale agreement.
ARRC Fallback Language”: The recommended mechanism of the Alternative Reference Rates Committee of the Federal Reserve Bank of New York for successor benchmark rates for securitization.
Article 15 Agreement”: The meaning specified in Section 15.1(a).
As-Stabilized LTV”: With respect to any Collateral Interest, the ratio, expressed as a percentage, as calculated by the Collateral Manager in accordance with the Collateral Management Standard, of the Principal Balance of such Collateral Interest to the value estimate of the related mortgaged property as reflected in an appraisal that was obtained not more than twelve (12) months prior to the date of determination (or, if originated by the Seller of an affiliate thereof, not more than three (3) months prior to the date of origination), which value is based on the appraisal or portion of an appraisal that states an “as-stabilized” value and/or “as-renovated” value for such property, which may be based on the assumption that certain events will occur, including without limitation, with respect to the re-tenanting, renovation or other repositioning of such property and, may be based on the capitalization rate reflected in such appraisal; provided, further, that if the appraisal was not obtained within three (3) months prior to the date of determination, the Collateral Manager may adjust such capitalization rate in its reasonable good faith judgment executed in accordance with the Collateral Management Standard. In determining As-Stabilized LTV for any Collateral Interest that is a Participation, the calculation of As-Stabilized LTV will take into account the outstanding Principal Balance of
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the Participation being acquired by the Issuer and related pari passu Non-Acquired Participation(s) (assuming fully funded). In determining the As-Stabilized LTV for any Collateral Interest that is cross-collateralized with one or more other Collateral Interests, the As-Stabilized LTV will be calculated with respect to the cross-collateralized group in the aggregate.
Asset Replacement Percentage”: On any date of determination on which the Benchmark is LIBOR, a fraction (expressed as a percentage) where (a) the numerator is the Aggregate Principal Balance of the Collateral Interests for which interest payments under such Collateral Interest would be calculated with reference to a benchmark other than the Benchmark as of such date and (b) the denominator is the Aggregate Principal Balance of all of the Collateral Interests; provided, however, that if the Benchmark is not LIBOR, the Asset Replacement Percentage shall be deemed to be 0.00%.
Auction Call Redemption”: The meaning specified in Section 9.1(d).
Authenticating Agent”: With respect to the Notes or a Class of the Notes, the Person designated by the Note Administrator to authenticate such Notes on behalf of the Note Administrator pursuant to Section 2.12.
Authorized Officer”: With respect to the Issuer or Co-Issuer, any Officer (or attorney-in-fact appointed by the Issuer or the Co-Issuer) who is authorized to act for the Issuer or Co-Issuer in matters relating to, and binding upon, the Issuer or Co-Issuer. With respect to the Collateral Manager, the Persons listed on Schedule C or such other Person or Persons specified by the Collateral Manager by written notice to the other parties hereto. With respect to the Servicer, a “Responsible Officer” of the Servicer as set forth in the Servicing Agreement. With respect to the Note Administrator or the Trustee or any other bank or trust company acting as trustee of an express trust, a Trust Officer. Each party may receive and accept a certification of the authority of any other party as conclusive evidence of the authority of any Person to act, and such certification may be considered as in full force and effect until receipt by such other party of written notice to the contrary.
Backup Advancing Agent”: The Note Administrator, solely in its capacity as Backup Advancing Agent hereunder, or any successor Backup Advancing Agent; provided that any such successor Backup Advancing Agent must be a financial institution having (a) a long-term senior unsecured debt rating at least equal to “A2” by Moody’s and a short-term debt rating from Moody’s at least equal to “P-1” and (b) a long-term senior unsecured debt rating at least equal to “A” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s)).
Bankruptcy Code”: The federal Bankruptcy Code, Title 11 of the United States Code, Part V of the Companies Act (As Revised) of the Cayman Islands, the Bankruptcy Act (As Revised) of the Cayman Islands, the Companies Winding Up Rules (As Revised) of the Cayman Islands and the Foreign Bankruptcy Proceedings (International Cooperation) Rules (As Revised) of the Cayman Islands, each as amended from time to time.
Barclays”: Barclays Capital Inc.
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Benchmark”: Initially, LIBOR, provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
Benchmark Determination Date”: With respect to any Interest Accrual Period, (a) if the Benchmark is LIBOR, the second London Banking Day preceding the first day of such Interest Accrual Period and (b) if the Benchmark is not LIBOR, the time determined by the Designated Transaction Representative in the Benchmark Replacement Conforming Changes.
Benchmark Replacement”: The first alternative set forth in the order below that the Designated Transaction Representative determines is able to be implemented as of the date which is thirty (30) calendar days prior to the related Benchmark Replacement Date:
(a)    the sum of: (i) Term SOFR and (ii) the Benchmark Replacement Adjustment;
(b)    the sum of: (i) Compounded SOFR and (ii) the Benchmark Replacement Adjustment;
(c)    the sum of: (i) the alternate rate of interest that has been selected, endorsed or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (ii) the Benchmark Replacement Adjustment;
(d)    the sum of: (i) the ISDA Fallback Rate and (ii) the Benchmark Replacement Adjustment; and
(e)    the sum of: (i) the alternate rate of interest that has been selected by the Designated Transaction Representative as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated securitizations at such time and (ii) the Benchmark Replacement Adjustment.
Notwithstanding the foregoing, in no event may the Benchmark Replacement be less than zero.
Benchmark Replacement Adjustment”: With respect to any Benchmark Replacement, the first alternative set forth in the order below that the Designated Transaction Representative determines is able to be implemented with respect to such Benchmark Replacement as of the date which is thirty (30) calendar days prior to the related Benchmark Replacement Date:
(a)    the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected, endorsed or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement;
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(b)    if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; and
(c)    the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Designated Transaction Representative giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated securitization transactions at such time.
Benchmark Replacement Conforming Changes”: With respect to any Benchmark or Benchmark Replacement, any technical, administrative or operational changes (including, but not limited to, changes to the definition of “Interest Accrual Period,” setting an applicable Benchmark Determination Date and Reference Time, the timing and frequency of determining rates and making payments of interest, the method for determining the Benchmark Replacement and other administrative matters and which may, for the avoidance of doubt, have a material economic impact on the Notes) that the Designated Transaction Representative decides may be appropriate to reflect the adoption of such Benchmark or Benchmark Replacement, as applicable, in a manner substantially consistent with market practice (or, if the Designated Transaction Representative decides that adoption of any portion of such market practice is not administratively feasible or if the Designated Transaction Representative determines that no market practice for use of the Benchmark or Benchmark Replacement, as applicable, exists, in such other manner as the Designated Transaction Representative determines is reasonably necessary).
Benchmark Replacement Date”: (a) For purposes of clause (a) or (b) of the definition of “Benchmark Transition Event,” the earlier of (i) the later of (A) the date of the public statement or publication of information referenced therein and (B) the date on which the administrator of the relevant Benchmark permanently or indefinitely ceases to provide such Benchmark and (ii) the date selected by the Designated Transaction Representative, in its sole discretion, to be an appropriate Benchmark Replacement Date based on market practice; (b) for purposes of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information; or (c) for purposes of clause (d) of the definition of “Benchmark Transition Event,” the 30th Business Day following the date of such servicer report;
provided, however, that, other than in the case of clauses (a)(ii) and (b) above, on or after the 60th day preceding the date on which such Benchmark Replacement Date would otherwise occur (if applicable), the Designated Transaction Representative may give written notice to the Issuer, the Co-Issuer, the Advancing Agent, the Servicer, the Special Servicer, the Note Administrator, the Trustee and the Calculation Agent (if different from the Note Administrator) in which the Designated Transaction Representative designates an earlier date (but not earlier than the 30th day following such notice) and represents that such earlier date will facilitate an orderly transition of the transaction to the Benchmark Replacement, in which case such earlier date shall be the Benchmark Replacement Date.
On March 8, 2021, the ARRC announced that based on the FCA Announcement of March 5, 2021, the Benchmark Replacement Date for one-month LIBOR is expected to be on or
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immediately after June 30, 2023 (although if other Benchmark Transition Events occur the Benchmark Replacement Date could be earlier).
Benchmark Transition Event”: The occurrence of one or more of the following events with respect to the then-current Benchmark:
(a)    a public statement or publication of information by or on behalf of the administrator of the Benchmark announcing that the administrator has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark;
(b)    a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark, the central bank for the currency of the Benchmark, an insolvency official with jurisdiction over the administrator for the Benchmark, a resolution authority with jurisdiction over the administrator for the Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark, which states that the administrator of the Benchmark has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark;
(c)    a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative; or
(d)    the Asset Replacement Percentage is greater than 50%, as calculated by the Designated Transaction Representative based on the aggregate Principal Balance of the applicable Commercial Real Estate Loans, as reported in the most recent monthly report of the Servicer.
On March 8, 2021, the ARRC announced that the FCA Announcement of March 5, 2021, amounted to a Benchmark Transition Event.
Board of Directors”: With respect to the Issuer, the directors of the Issuer duly appointed in accordance with the Governing Documents of the Issuer and, with respect to the Co-Issuer, the LLC Managers duly appointed by the sole member of the Co-Issuer or otherwise.
Board Resolution”: With respect to the Issuer, a resolution of the Board of Directors of the Issuer and, with respect to the Co-Issuer, a resolution or unanimous written consent of the LLC Managers or the sole member of the Co-Issuer.
BRSP Advancing”: BrightSpire Capital Advancing Agent, LLC (f/k/a CLNC Advancing Agent, LLC), a Delaware limited liability company.
BRSP Sub-REIT”: BrightSpire Capital Mortgage Sub-REIT, LLC (f/k/a CLNC Mortgage Sub-REIT, LLC), a Delaware limited liability company that is a real estate investment trust.
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Business Day”: Any day other than (i) a Saturday or Sunday or (ii) a day on which commercial banks are authorized or required by applicable law, regulation or executive order to close in New York, New York, Overland Park, Kansas, Cleveland, Ohio or the location of the Corporate Trust Office of the Note Administrator or the Trustee, or (iii) days when the New York Stock Exchange or the Federal Reserve Bank of New York are closed.
Calculation Agent”: The meaning specified in Section 7.14(a).
Calculation Amount”: With respect to:
(a)     any Modified Collateral Interest, the Principal Balance thereof minus any related Appraisal Reduction Amounts; provided that, if an Appraisal Reduction Amount based on an Updated Appraisal (or, when permitted by the terms of the Servicing Agreement, an existing appraisal that is less than 12 months old) is not determined with respect to such Modified Collateral Interest within 120 days after it becomes a Modified Collateral Interest, the Calculation Amount with respect to such Modified Collateral Interest will be determined in accordance with clause (b) below until an Appraisal Reduction Amount based on an Updated Appraisal (or, when permitted by the terms of the Servicing Agreement, an existing appraisal that is less than 12 months old) is determined; and
(b)     any Defaulted Collateral Interest, the lowest of (i) the Moody’s Recovery Rate of such Collateral Interest multiplied by the Principal Balance of such Collateral Interest, (ii) the market value of such Collateral Interest, as determined by the Collateral Manager in accordance with the Collateral Management Standard based upon, among other things, a recent appraisal and information from one or more third party commercial real estate brokers and such other information as the Collateral Manager deems appropriate and (iii) the Principal Balance of such Collateral Interest minus any applicable Appraisal Reduction Amounts.
Cash”: Such coin or currency of the United States of America as at the time shall be legal tender for payment of all public and private debts.
Cayman AML Regulations”: The Anti-Money Laundering Regulations (As Revised) and The Guidance Notes on the Prevention and Detection of Money Laundering, Proliferation Financing and Terrorist Financing in the Cayman Islands, each as amended and revised from time to time.
Cayman FATCA Legislation”: The Cayman Islands Tax Information Authority Act (As Revised), together with related legislation, regulations, rules and guidance notes made pursuant to such Act.
Certificate of Authentication”: The meaning specified in Section 2.1.
Certificated Security”: A “certificated security” as defined in Section 8-102(a)(4) of the UCC.
Citi”: Citigroup Global Markets Inc.
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Class”: The Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes, the Class E Notes, the Class F Notes, the Class F-E Notes, the Class F-X Notes, the Class G Notes, the Class G-E Notes or the Class G-X Notes, as applicable.
Class A Defaulted Interest Amount”: With respect to the Class A Notes as of each Payment Date, the accrued and unpaid amount due to Holders of the Class A Notes on account of any shortfalls in the payment of the Class A Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class A Rate.
Class A Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class A Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class A Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred and sixty (360) and (c) the Class A Rate.
Class A Notes”: The Class A Senior Secured Floating Rate Notes due 2038, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
Class A Rate”: With respect to any Class A Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 1.15% plus (c) on and after the Payment Date in May 2027, 0.25%.
Class A-S Defaulted Interest Amount”: With respect to the Class A-S Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class A-S Notes on account of any shortfalls in the payment of the Class A-S Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class A-S Rate.
Class A-S Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class A-S Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class A-S Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred and sixty (360) and (c) the Class A-S Rate.
Class A-S Notes”: The Class A-S Second Priority Secured Floating Rate Notes Due 2038, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
Class A-S Rate”: With respect to any Class A-S Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 1.60% plus (c) on and after the Payment Date in May 2027, 0.25%.
Class B Defaulted Interest Amount”: With respect to the Class B Notes as of each Payment Date, the accrued and unpaid amount due to Holders of the Class B Notes on account of
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any shortfalls in the payment of the Class B Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class B Rate.
Class B Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class B Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class B Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred and sixty (360) and (c) the Class B Rate.
Class B Notes”: The Class B Third Priority Secured Floating Rate Notes due 2038, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
Class B Rate”: With respect to any Class B Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 1.90% plus (c) on and after the Payment Date in May 2027, 0.50%.
Class C Defaulted Interest Amount”: With respect to the Class C Notes as of each Payment Date, the accrued and unpaid amount due to Holders of the Class C Notes on account of any shortfalls in the payment of the Class C Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class C Rate.
Class C Deferred Interest”: Any interest due on the Class C Notes that is not paid as a result of the operation of the Priority of Payments on any Payment Date.
Class C Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class C Notes on account of interest equal to the product of (i) the Aggregate Outstanding Amount of the Class C Notes on the first day of the related Interest Accrual Period, (ii) the actual number of days in such Interest Accrual Period divided by three hundred and sixty (360) and (iii) the Class C Rate.
Class C Notes”: The Class C Fourth Priority Secured Floating Rate Notes due 2038, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
Class C Rate”: With respect to any Class C Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 2.15% plus (c) on and after the Payment Date in May 2027, 0.50%.
Class D Defaulted Interest Amount”: With respect to the Class D Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class D Notes on account of any shortfalls in the payment of the Class D Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class D Rate.
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Class D Deferred Interest”: Any interest due on the Class D Notes that is not paid as a result of the operation of the Priority of Payments on any Payment Date.
Class D Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class D Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class D Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred and sixty (360) and (c) the Class D Rate.
Class D Notes”: The Class D Fifth Priority Secured Floating Rate Notes due 2038, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
Class D Rate”: With respect to any Class D Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 2.70% plus (c) on and after the Payment Date in May 2027, 0.50%.
Class E Defaulted Interest Amount”: With respect to the Class E Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class E Notes on account of any shortfalls in the payment of the Class E Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class E Rate.
Class E Deferred Interest”: Any interest due on the Class E Notes that is not paid as a result of the operation of the Priority of Payments on any Payment Date.
Class E Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class E Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class E Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred and sixty (360) and (c) the Class E Rate.
Class E Notes”: The Class E Sixth Priority Secured Floating Rate Notes due 2038, issued by the Issuer and the Co-Issuer pursuant to this Indenture.
Class E Rate”: With respect to any Class E Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 3.45% plus (c) on and after the Payment Date in May 2027, 0.50%.
Class F Defaulted Interest Amount”: With respect to the Class F Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class F Notes on account of any shortfalls in the payment of the Class F Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class F Rate.
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Class F Deferred Interest”: Any interest due on the Class F Notes that is not paid as a result of the operation of the Priority of Payments on any Payment Date.
Class F Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class F Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class F Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred and sixty (360) and (c) the Class F Rate.
Class F Notes”: The Class F Seventh Priority Floating Rate Notes due 2038, issued by the Issuer pursuant to this Indenture.
Class F Rate”: With respect to any Class F Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 5.00%.
Class F-E Defaulted Interest Amount”: With respect to the Class F-E Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class F-E Notes on account of any shortfalls in the payment of the Class F-E Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the interest rate on the Class F-E Notes described in Section 2.16.
Class F-E Deferred Interest”: Any interest due on the Class F-E Notes and the Class F-X Notes that is not paid as a result of the operation of the Priority of Payments on any Payment Date. Any Class F-E Deferred Interest added to the Aggregate Outstanding Amount of the Class F-E Notes shall have the effect of increasing the Aggregate Outstanding Notional Amount of the Class F-X Notes.
Class F-E Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class F-E Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class F-E Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred sixty (360) and (c) the interest rate on the Class F-E Notes described in Section 2.16.
Class F-E Notes”: The meaning specified in Section 2.3.
Class F-X Defaulted Interest Amount”: With respect to the Class F-X Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class F-X Notes on account of any shortfalls in the payment of the Class F-X Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the interest rate on the Class F-X Notes described in Section 2.16.
Class F-X Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class F-X Notes on account of interest equal to the product of (a) the Aggregate Outstanding Notional Amount of the Class F-X Notes on the first day of the related Interest
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Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred sixty (360) and (c) the interest rate on the Class F-X Notes described in Section 2.16.
Class F-X Notes”: The meaning specified in Section 2.3.
Class G Defaulted Interest Amount”: With respect to the Class G Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class G Notes on account of any shortfalls in the payment of the Class G Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the Class G Rate.
Class G Deferred Interest”: Any interest due on the Class G Notes that is not paid as a result of the operation of the Priority of Payments on any Payment Date.
Class G Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class G Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class G Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred sixty (360) and (c) the Class G Rate.
Class G Notes”: The Class G Eighth Priority Floating Rate Notes Due 2038, issued by the Issuer pursuant to this Indenture.
Class G Rate”: With respect to any Class G Note, the per annum rate at which interest accrues on such Note for any Interest Accrual Period, which shall be equal to (a) the Benchmark (determined as described herein) plus (b) 6.75%.
Class G-E Defaulted Interest Amount”: With respect to the Class G-E Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class G-E Notes on account of any shortfalls in the payment of the Class G-E Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the interest rate on the Class G-E Notes described in Section 2.16.
Class G-E Deferred Interest”: Any interest due on the Class G-E Notes and the Class G-X Notes that is not paid as a result of the operation of the Priority of Payments on any Payment Date. Any Class G-E Deferred Interest added to the Aggregate Outstanding Amount of the Class G-E Notes shall have the effect of increasing the Aggregate Outstanding Notional Amount of the Class G-X Notes.
Class G-E Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class G-E Notes on account of interest equal to the product of (a) the Aggregate Outstanding Amount of the Class G-E Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred sixty (360) and (c) the interest rate on the Class G-E Notes described in Section 2.16.
Class G-E Notes”: The meaning specified in Section 2.3.
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Class G-X Defaulted Interest Amount”: With respect to the Class G-X Notes as of each Payment Date, the accrued and unpaid amount due to holders of the Class G-X Notes on account of any shortfalls in the payment of the Class G-X Interest Distribution Amount with respect to any preceding Payment Date or Payment Dates, together with interest accrued thereon (to the extent lawful) at the interest rate on the Class G-X Notes described in Section 2.16.
Class G-X Interest Distribution Amount”: On each Payment Date, the amount due to Holders of the Class G-X Notes on account of interest equal to the product of (a) the Aggregate Outstanding Notional Amount of the Class G-X Notes on the first day of the related Interest Accrual Period, (b) the actual number of days in such Interest Accrual Period divided by three hundred sixty (360) and (c) the interest rate on the Class G-X Notes described in Section 2.16.
Class G-X Notes”: The meaning specified in Section 2.3.
Clean-up Call”: The meaning specified in Section 9.1(a).
Clearing Agency”: An organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.
Clearstream, Luxembourg”: Clearstream Banking, société anonyme, a limited liability company organized under the laws of the Grand Duchy of Luxembourg.
Closing Date”: July 20, 2021.
Closing Date Collateral Interests”: The Collateral Interests identified on Schedule A as Closing Date Collateral Interests.
Code”: The United States Internal Revenue Code of 1986, as amended.
Co-Issuer”: BRSP 2021-FL1, LLC, a limited liability company formed under the laws of the State of Delaware, until a successor Person shall have become the Co-Issuer pursuant to the applicable provisions of this Indenture, and thereafter “Co-Issuer” shall mean such successor Person.
Co-Issuers”: The Issuer and the Co-Issuer.
Collateral”: The meaning specified in the first paragraph of the Granting Clause of this Indenture.
Collateral Interest File”: The meaning set forth in Section 3.3(e).
Collateral Interest Purchase Agreement”: Any Collateral Interest purchase agreement entered into between the Issuer and the Seller relating to the acquisition of Collateral Interests by the Issuer, as amended from time to time, which agreement is assigned to the Trustee on behalf of the Issuer pursuant to this Indenture.
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Collateral Interests”: The Closing Date Collateral Interests, the Exchange Collateral Interests and the Reinvestment Collateral Interests.
Collateral Management Agreement”: The Collateral Management Agreement, dated as of the Closing Date, by and between the Issuer and the Collateral Manager, as amended, supplemented or otherwise modified from time to time in accordance with its terms.
Collateral Manager Event of Default”: The meaning set forth in the Collateral Management Agreement.
Collateral Management Standard”: The meaning set forth in the Collateral Management Agreement.
Collateral Manager”: BrightSpire Capital Advisors, LLC (f/k/a CLNC Advisors, LLC), each of BrightSpire Capital Advisors, LLC’s permitted successors and assigns or any successor Person that shall have become the Collateral Manager pursuant to the provisions of the Collateral Management Agreement and thereafter “Collateral Manager” shall mean such successor Person.
Collateral Manager Fee”: The meaning set forth in the Collateral Management Agreement.
Collection Account”: The meaning specified in the Servicing Agreement.
Combined Loan”: Collectively, a Mortgage Loan and related Mezzanine Loan. Each Combined Loan shall be treated as a single loan for all purposes hereunder.
Combined Loan Repurchase Event”: With respect to each Collateral Interest, the meaning specified in the Collateral Interest Purchase Agreement.
Commercial Real Estate Loan”: Any Mortgage Loan, Combined Loan or Participated Loan, as applicable and as the context may require.
Companion Participation”: With respect to each Owned Participation, the related companion participation interest in the related Participated Loan that will not be held by the Issuer unless such Companion Participation is later acquired, in whole or in part, by the Issuer pursuant to the applicable provisions of this Indenture.
Commitment Letter”: A definitive letter of commitment or term sheet provided by an institutional lender.
Company Administration Agreement”: The administration agreement, dated on or about the Closing Date, by and among the Issuer and the Company Administrator, as modified and supplemented and in effect from time to time.
Company Administrative Expenses”: All fees, expenses and other amounts due or accrued with respect to any Payment Date and payable by the Issuer, Co-Issuer or any Permitted
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Subsidiary (including legal fees and expenses) to (a) the Note Administrator, the Custodian, the Trustee and the Designated Transaction Representative pursuant to this Indenture or any co-trustee appointed pursuant to Section 6.12 (including amounts payable by the Issuer as indemnification pursuant to this Indenture), (b) the Company Administrator under the Company Administration Agreement and the Registered Office Agreement (including amounts payable by the Issuer as indemnification pursuant to the Company Administration Agreement) and to provide for the costs of liquidating the Issuer following redemption of the Notes and MCSL pursuant to the AML Services Agreement, (c) the LLC Managers (including indemnification), (d) the independent accountants, agents and counsel of the Issuer for reasonable fees and expenses (including amounts payable in connection with the preparation of tax forms on behalf of the Issuer and the Co-Issuer), and any registered office and government filing fees, in each case, payable in the order in which invoices are received by the Issuer, (e) a Rating Agency for fees and expenses in connection with any rating (including the annual fee payable with respect to the monitoring of any rating) of the Notes, including fees and expenses due or accrued in connection with any credit assessment or rating of the Collateral Interests, (f) the Collateral Manager under this Indenture and the Collateral Management Agreement (including amounts payable by the Issuer as indemnification pursuant to this Indenture or the Collateral Management Agreement), (g) other Persons as indemnification pursuant to the Collateral Management Agreement, (h) the Advancing Agent or other Persons as indemnification pursuant to the provisions pertaining to the Advancing Agent in this Indenture, (i) the Servicer or the Special Servicer as indemnification or reimbursement of expenses pursuant to the Servicing Agreement, (j) the CREFC® Intellectual Property Royalty License Fee, (k) the Preferred Share Paying Agent and the Share Registrar pursuant to the Preferred Share Paying Agency Agreement (including amounts payable as indemnification), (l) each member of the Advisory Committee (including amounts payable as indemnification) under each agreement between such Advisory Committee member, the Collateral Manager and the Issuer (and the amounts payable by the Issuer to each member of the Advisory Committee as indemnification pursuant to each such agreement), (m) any other Person in respect of any governmental fee, charge or tax (including any FATCA and Cayman FATCA Legislation compliance costs) in relation to the Issuer or the Co-Issuer (in each case as certified by an Authorized Officer of the Issuer or the Co-Issuer to the Note Administrator), in each case, payable in the order in which invoices are received by the Issuer and (n) any other Person in respect of any other fees or expenses (including indemnifications) permitted under this Indenture (including, without limitation, any costs or expenses incurred in connection with certain modeling systems and services) and the documents delivered pursuant to or in connection with this Indenture and the Notes and any amendment or other modification of any such documentation, in each case unless expressly prohibited under this Indenture (including, without limitation, the payment of all transaction fees and all legal and other fees and expenses required in connection with the purchase of any Collateral Interests or any other transaction authorized by this Indenture), in each case, payable in the order in which invoices are received by the Issuer; provided that Company Administrative Expenses shall not include (i) amounts payable in respect of the Notes and (ii) any Collateral Manager Fee payable pursuant to the Collateral Management Agreement.
Company Administrator”: Maples FS Limited, a licensed trust company incorporated in the Cayman Islands, as administrator pursuant to the Company Administration Agreement,
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unless a successor Person shall have become administrator pursuant to the Company Administration Agreement, and thereafter, Company Administrator shall mean such successor Person.
Compounded SOFR”: The compounded average of SOFRs calculated for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which, for example, may be compounded in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Accrual Period or compounded in advance) being established by the Designated Transaction Representative in accordance with:
(a)    the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that:
(b)    if, and to the extent that, the Designated Transaction Representative determines that Compounded SOFR cannot be determined in accordance with clause (a) above, then the rate, or methodology for this rate, and conventions for this rate that have been selected by the Designated Transaction Representative giving due consideration to any industry-accepted market practice for similar U.S. dollar denominated securitization transactions at such time.
Controlled Collateral Interest”: Each Collateral Interest (i) that is a Commercial Real Estate Loan or (ii) that is a Participation with respect to with the Issuer is the controlling holder under the related Participation Agreement. Other than the Closing Date Collateral Interests identified on Schedule A as “Clutter NYC Portfolio,” “360 Wythe,” “Milagro Multifamily” and “Central Park Plaza,” each of the Closing Date Collateral Interests are Controlled Collateral Interests as of the Closing Date.
Controlling Class”: The Class A Notes, so long as any Class A Notes are Outstanding, then the Class A-S Notes, so long as any Class A-S Notes are Outstanding, then the Class B Notes, so long as any Class B Notes are Outstanding, then the Class C Notes, so long as any Class C Notes are Outstanding, then the Class D Notes, so long as any Class D Notes are Outstanding, then the Class E Notes, so long as any Class E Notes are Outstanding, then the Class F Notes and any Class F-E Notes (if applicable), so long as any Class F Notes or Class F-E Notes are Outstanding and then the Class G Notes and any Class G-E Notes (if applicable), so long as any Class G Notes or Class G-E Notes are Outstanding.
Corporate Trust Office”: The designated corporate trust office of (a) the Trustee, currently located at 1100 North Market Street, Wilmington, Delaware 19890, Attention: CMBS Trustee – BRSP 2021-FL1, (b) the Note Administrator, currently located at (i) with respect to the delivery of Loan Documents, at 1055 10th Avenue SE, Minneapolis, Minnesota, 55414, Attention: Document Custody Group – BRSP 2021-FL1, (ii) with respect to the delivery of Note transfers and surrenders, at 600 South 4th St., 7th Floor, MAC N9300-070 Minneapolis, Minnesota 55415, Attention: Note Transfers – CTS – BRSP 2021-FL1; and (iii) for all other purposes, at 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: CMBS – BRSP 2021-FL1 or (c) such other address as the Trustee or the Note Administrator, as
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applicable, may designate from time to time by notice to the Noteholders, the Holder of the Preferred Shares, the 17g5 Information Provider and the parties hereto.
Credit Risk/Defaulted Collateral Interest Cash Purchase”: The meaning specified in Section 12.1(b).
Corresponding Tenor”: With respect to a Benchmark Replacement, a tenor or observation period, as applicable, having approximately the same length (disregarding business day adjustment) as the tenor or observation period applicable to the then-current Benchmark.
Credit Risk Collateral Interest”: Any Collateral Interest that, in the Collateral Manager’s reasonable business judgment, has a significant risk of becoming a Defaulted Collateral Interest within 120 days.
Credit Risk Exchange Limitation”: With respect to exchanges of Credit Risk Collateral Interests (other than those that are Defaulted Collateral Interests) after the Reinvestment Period, the condition that will be satisfied if, immediately after giving effect to any such exchange, the aggregate Principal Balance of Credit Risk Collateral Interests (other than those that are Defaulted Collateral Interests) that have been exchanged by the Issuer in exchanges to the Collateral Manager or its affiliates after the Reinvestment Period does not exceed 10.0% of the aggregate Principal Balance of the Closing Date Collateral Interests as of the Closing Date.
Credit Risk Retention Rules”: Regulation RR (17 C.F.R. Part 246), as such rule may be amended from time to time, and subject to such clarification and interpretation as have been provided by the Department of Treasury, the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the Securities and Exchange Commission and the Department of Housing and Urban Development in the adopting release (79 F.R. 77601 et seq.) or by the staff of any such agency, or as may be provided by any such agency or its staff from time to time, in each case, as effective from time to time.
CREFC® Intellectual Property Royalty License Fee”: With respect to each Collateral Interest and for any Payment Date, an amount accrued during the related Interest Accrual Period at the CREFC® Intellectual Property Royalty License Fee Rate on the Principal Balance of such Collateral Interest as of the close of business on the Determination Date in such Interest Accrual Period. Such amounts shall be computed for the same period and on the same interest accrual basis respecting which any related interest payment due or deemed due on the related Collateral Interest is computed and shall be prorated for partial periods.
CREFC® Intellectual Property Royalty License Fee Rate”: With respect to each Collateral Interest, a rate equal to 0.0005% per annum.
Criteria-Based Modification”: The meaning specified in the Servicing Agreement.
CRS”: The OECD Standard for Automatic Exchange of Financial Account information – Common Reporting Standard.
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Custodial Account”: An account at the Securities Intermediary established pursuant to Section 10.1(b).
Custodian”: The meaning specified in Section 3.3(a).
Custody Collateral Interest”: Any Collateral Interest that is not a Non-Custody Collateral Interest. As of the Closing Date, (a) each of the Collateral Interests that represent an interest in a Non-Serviced Commercial Real Estate Loan is a Non-Custody Collateral Interest and (b) each of the Closing Date Collateral Interests other than the Collateral Interests specified in clause (a) above shall be Custody Collateral Interests.
Cut-off Date”: July 9, 2021 or the Collateral Interest origination date, whichever is later.
DBRS Morningstar”: DBRS, Inc. or any successor thereto.
Debt Service”: With respect to any Collateral Interest, the monthly payments of principal and interest due pursuant to the terms of the related Loan Documents, excluding (a) any balloon payments, (b) required (non-monthly) principal paydowns and (c) reserve payments for the 12 payments following the Cut-off Date.
Default”: Any Event of Default or any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.
Defaulted Collateral Interest”: Any Collateral Interest for which the related Commercial Real Estate Loan is a Defaulted Commercial Real Estate Loan.
Defaulted Interest Amount”: The Class A Defaulted Interest Amount, the Class A-S Defaulted Interest Amount, the Class B Defaulted Interest Amount, the Class C Defaulted Interest Amount, the Class D Defaulted Interest Amount, the Class E Defaulted Interest Amount, the Class F Defaulted Interest Amount, the Class F-E Defaulted Interest Amount, the Class F-X Defaulted Interest Amount, the Class G Defaulted Interest Amount, the Class G-E Defaulted Interest Amount or the Class G-X Defaulted Interest Amount, as the context requires.
Defaulted Commercial Real Estate Loan”: Any Commercial Real Estate Loan for which there has occurred and is continuing for more than 60 days either (a) a payment default or (b) a material non-monetary event of default that is known to the Servicer, in each case, after giving effect to any applicable grace period but without giving effect to any waiver; provided, however, that any Collateral Interest as to which an Appraisal Reduction Event has not occurred due to the circumstances specified in clause (v) of the definition thereof and which is not otherwise a Defaulted Commercial Real Estate Loan will be deemed not to be a Defaulted Commercial Real Estate Loan for purposes of determining the Calculation Amount for the Par Value Test; provided, further, that the Special Servicer may determine a Commercial Real Estate Loan is a Defaulted Commercial Real Estate Loan in advance of such sixty (60) day period if it deems such default material in its sole discretion. If a Defaulted Commercial Real Estate Loan is the subject of a work-out, modification or otherwise has cured the default such
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that the subject Defaulted Commercial Real Estate Loan is no longer in default pursuant to its terms (as such terms may have been modified), such Collateral Interest will no longer be treated as a Defaulted Commercial Real Estate Loan.
Deferred Interest”: The Class C Deferred Interest, the Class D Deferred Interest, the Class E Deferred Interest, the Class F Deferred Interest, the Class F-E Deferred Interest, the Class G Deferred Interest and the Class G-E Deferred Interest.
Definitive Notes”: The meaning specified in Section 2.2(b).
Designated Transaction Representative”: The Collateral Manager or such other person appointed by the Collateral Manager in connection with the Benchmark replacement process.
Depository” or “DTC”: The Depository Trust Company, its nominees, and their respective successors.
Determination Date”: The 4th Business Day preceding the Payment Date occurring in such month, commencing in August 2021.
Disposition Limitation Threshold”: The time at which the sum of (a) the cumulative aggregate Principal Balance of Credit Risk Collateral Interests sold by the Issuer to the Collateral Manager or its affiliates plus (b) the cumulative aggregate Principal Balance of Credit Risk Collateral Interests exchanged for Exchange Collateral Interests is equal to or greater than 10% of the aggregate Principal Balance of the Closing Date Collateral Interests as of the Closing Date.
Disqualified Transferee”: The meaning specified in Section 2.5(l).
Dissolution Expenses”: The amount of expenses reasonably likely to be incurred in connection with the discharge of this Indenture, the liquidation of the Collateral and the dissolution of the Co-Issuers, as reasonably certified by the Collateral Manager or the Issuer, based in part on expenses incurred by the Trustee, Custodian and Note Administrator and reported to the Collateral Manager.
Dodd-Frank”: The Dodd Frank Wall Street Reform and Consumer Protection Act, as amended from time to time.
Dollar”, “U.S. $” or “$”: A U.S. dollar or other equivalent unit in Cash.
Due Period”: With respect to any Payment Date, the period commencing on the day immediately succeeding the second preceding Determination Date (or commencing on and excluding the Closing Date, in the case of the Due Period relating to the first Payment Date) and ending on and including the Determination Date immediately preceding such Payment Date.
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EHRI”: Any interest in the Issuer that satisfies the definition of “eligible horizontal residual interest” in the Credit Risk Retention Rules. As of the Closing Date, the Preferred Shares shall constitute the EHRI.
Eligibility Criteria”: The criteria set forth below with respect to any Collateral Interest acquired by the Issuer after the Closing Date, compliance with which shall be evidenced by an Officer’s Certificate of the Collateral Manager delivered to the Trustee and Note Administrator as of the date of such acquisition:
(i)    it is a whole loan, a Combined Loan, or a Senior Participation in a Mortgage Loan or a Combined Loan, that is secured by a Multi-Family Property, Office Property, Industrial Property, Self-Storage Property, Hospitality Property or Mixed Use Property;
(ii)    the aggregate Principal Balance of the Collateral Interests secured by properties that are of the following types are subject to limitations as follows: (a) Office Properties does not exceed 50.0% of the Aggregate Outstanding Portfolio Balance, (b) Industrial Properties does not exceed 40.0% of the Aggregate Outstanding Portfolio Balance, (c) Hospitality Properties does not exceed 15.0% of the Aggregate Outstanding Portfolio Balance, (d) Mixed Use Properties does not exceed 15.0% of the Aggregate Outstanding Portfolio Balance, (e) Self-Storage Properties does not exceed 10.0% of the Aggregate Outstanding Portfolio Balance and (f) Student Housing Properties does not exceed 7.5% of the Aggregate Outstanding Portfolio Balance (it being understood that, for all purposes hereof, no concentration limitation will apply with respect to Multi-Family Properties other than Student Housing Properties);
(iii)    the obligor is incorporated or organized under the laws of, and the Collateral Interest is secured by property located in, the United States;
(iv)    it provides for monthly payments of interest at a floating rate based on one-month LIBOR (or a successor benchmark rate that is either materially consistent with the ARRC Fallback Language or acceptable to the Rating Agencies);
(v)    it has a Moody’s Rating;
(vi)    it has a maturity date, assuming the exercise of all extension options (if any) that are exercisable at the option of the related borrower under the terms of such Collateral Interest, that is not more than five years from the date of acquisition (which, in the case of newly originated loans, will be calculated without regard to the initial stub interest period);
(vii)    it is not an Equity Interest;
(viii)    the Collateral Manager has determined that it has an As-Stabilized LTV that is not greater than (i) in the case of Collateral Interests secured by Multi-Family Properties other than Student Housing Properties, 80.0%, (ii) in the case of Collateral Interests secured by Student Housing Properties, Office Properties, Industrial Properties, Self-Storage Properties and Mixed Use Properties, 75.0% and (iii) in the case of Collateral Interests secured by Hospitality Properties, 70.0%;
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(ix)    the Collateral Manager has determined that it has an U/W Stabilized NCF DSCR that is not less than (i) in the case of Collateral Interests secured by Multi-Family Properties other than Student Housing Properties, 1.15x, (ii) in the case of Collateral Interests secured by Student Housing Properties, Office Properties, Industrial Properties, Self-Storage Properties and Mixed Use Properties, 1.25x and (iii) in the case of Collateral Interests secured by Hospitality Properties, 1.35x;
(x)    the Principal Balance of such Collateral Interest (plus any previously-acquired participation interests in the same underlying Commercial Real Estate Loan) is not greater than $80,000,000;
(xi)    (A)    the Weighted Average Life of the Collateral Interests, assuming the exercise of all contractual extension options (if any) that are exercisable by the borrower under each Collateral Interest, is less than or equal to the number of years (rounded to the nearest one hundredth thereof) during the period from such date of determination to 5.5 years from the Closing Date;
(B)    the Weighted Average Spread of the Collateral Interests is not less than 2.75%;
(C)    the aggregate Principal Balance of Collateral Interests secured by Mortgaged Properties located in (1) Texas, Virginia, California or New York is (in each case) no more than 40.0% of the Aggregate Outstanding Portfolio Balance and (2) any other state is (in each case) no more than 25.0% of the Aggregate Outstanding Portfolio Balance; and
(D)    the Herfindahl Score is greater than or equal to 14.0;
(xii)    the weighted average Moody’s Rating Factor (weighted by Principal Balance of the Collateral Interests) for all Collateral Interests immediately after giving effect to such acquisition is not greater than 5,000;
(xiii)    a No Downgrade Confirmation has been received from DBRS Morningstar with respect to the acquisition of such Collateral Interest except that such confirmation will not be required with respect to the acquisition of a Participation if (a) the Issuer already owns a Participation in the same underlying Participated Loan, and (b) the principal balance of the Participation being acquired is $1,000,000 or less;
(xiv)    the sum of the Principal Balance of such Collateral Interest and the Principal Balance of all Collateral Interests that have the same guarantor or an affiliated guarantor does not exceed 20.0% of the Aggregate Outstanding Portfolio Balance;
(xv)    it will not require the Issuer to make any future payments after the Issuer’s purchase thereof;
(xvi)    if it is a Collateral Interest with a related Future Funding Participation:
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(A)    the Future Funding Indemnitor has Segregated Liquidity (evidenced by a certification) in an amount at least equal to the greater of (i) the Largest One Quarter Future Advance Estimate and (ii) the Two Quarter Future Advance Estimate for the immediately following two calendar quarters (based on the Future Funding Amounts for all outstanding Future Funding Participations related to the Collateral Interests);
(B)    the maximum principal amount of all Future Funding Participations with respect to all Collateral Interests does not exceed 25.0% of the maximum commitment amount of all Commercial Real Estate Loans (which, with respect to each Commercial Real Estate Loan, will equal the sum of (i) the related initial Principal Balance thereof and (ii) any related initial Future Funding Amount); and
(C)    the maximum principal amount of the related Future Funding Participation does not exceed 35.0% of the maximum commitment amount (including all related funded and unfunded Senior Participations) of the related Commercial Real Estate Loan;
(xvii)    it is not prohibited under its Loan Documents from being purchased by the Issuer and pledged to the Trustee;
(xviii)    it is not currently, and has not recently been, the subject of any request by the borrower to amend, modify or waive any provision of any of the related Loan Documents that would have a material adverse effect on the performance of such Commercial Real Estate Loan;
(xix)    it is not an interest that, in the Collateral Manager’s reasonable business judgment, has a significant risk of declining in credit quality or with lapse of time or notice becoming a Defaulted Collateral Interest;
(xx)    it is not a Defaulted Collateral Interest (as determined by the Collateral Manager after reasonable inquiry);
(xxi)    it is Dollar denominated and may not be converted into an obligation payable in any other currencies;
(xxii)    if such Collateral Interest is a Senior Participation, it does not have “buy/sell” rights as a dispute resolution mechanism;
(xxiii)    it provides for the repayment of principal at not less than par no later than upon its maturity or upon redemption, acceleration or its full prepayment;
(xxiv)    it is serviced pursuant to the Servicing Agreement or it is serviced by an Accepted Loan Servicer pursuant to a commercial mortgage servicing arrangement that includes the servicing provisions substantially similar to those that are standard in commercial mortgage-backed securities (“CMBS”) transactions;
(xxv)    (a) it is purchased from the Seller, the Securitization Sponsor, or a wholly-owned subsidiary of the Securitization Sponsor, and (b) the requirements set forth in this Indenture regarding the representations and warranties with respect to such Collateral Interest and the
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underlying mortgaged property (as applicable) have been met (subject to such exceptions as are reasonably acceptable to the Collateral Manager);
(xxvi)    if it is a participation interest, the related Participating Institution is (and any “qualified transferee” is required to be) any of (1) the Securitization Sponsor or any of its affiliates or a “qualified institutional lender” as such terms are typically defined in the Loan Documents related to participations; (2) an entity (or a wholly-owned subsidiary of an entity) that has (y) a long-term unsecured debt rating from Moody’s of “A3” or higher, and (z) a long-term unsecured debt rating from DBRS Morningstar of “A(low)” or higher (if rated by DBRS Morningstar, or if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s)) (3) a securitization trust, a collateralized loan obligation issuer or a similar securitization vehicle, or (4) a special purpose entity that is 100% directly or indirectly owned by the Securitization Sponsor, for so long as the separateness provisions of its organizational documents have not been amended (unless the Rating Agency Condition was satisfied in connection with such amendment), and if any Participating Institution is not the Issuer, the related Loan Documents will be held by a third party custodian;
(xxvii)    its acquisition will be in compliance with Section 206 of the Advisers Act;
(xxviii)    its acquisition, ownership, enforcement and disposition will not cause the Issuer to fail to be a Qualified REIT Subsidiary or other disregarded entity of a REIT unless a No Trade or Business Opinion has previously been received (which opinion may be conditioned on compliance with certain restrictions on the investment or other activity of the Issuer and/or the Collateral Manager on behalf of the Issuer);
(xxix)    its acquisition would not cause the Issuer, the Co-Issuer or the pool of Collateral Interests to be required to register as an investment company under the 1940 Act; and if the borrowers with respect to the Collateral Interest are excepted from the definition of an “investment company” solely by reason of Section 3(c)(1) of the 1940 Act, then either (x) such Collateral Interest does not constitute a “voting security” for purposes of the 1940 Act or (y) the aggregate amount of such Collateral Interest held by the Issuer is less than 10% of the entire issue of such Collateral Interest;
(xxx)    it does not provide for any payments which are or will be subject to deduction or withholding for or on account of any withholding or similar tax (other than withholding on amendment, modification and waiver fees, late payment fees, commitment fees, exit fees, extension fees or similar fees), unless the borrower under such Collateral Interest is required to make “gross up” payments that ensure that the net amount actually received by the Issuer (free and clear of taxes) will equal the full amount that the Issuer would have received had no such deduction or withholding been required;
(xxxi)    after giving effect to its acquisition, together with the acquisition of any other Collateral Interests to be acquired (or as to which a binding commitment to acquire was entered into) on the same date, the aggregate Principal Amount of Collateral Interests held by the Issuer that are EU/UK Retention Holder Originated Collateral Interests is in excess of 50% of the aggregate Principal Amount of Collateral Interests held by the Issuer;
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(xxxii)    it is not acquired for the primary purpose of recognizing gains or decreasing losses resulting from market value changes; and
(xxxiii)if it is a Combined Loan or a Participation in a Combined Loan, (x) the related Mortgage Loan contains a requirement that any principal repayment of the Mortgage Loan must be accompanied by a pro rata principal repayment (based on Principal Balance) of the related Mezzanine Loan and (y) the related Mortgage Loan does not permit the related borrower to incur additional debt secured by the related Mortgaged Property or the equity in the related borrower unless such debt was quantified and included in the calculations of all Eligibility Criteria in relation to such acquisition and in prior acquisitions of Collateral Interests related to such Combined Loan;
provided, however, that (a) for purposes of clauses (ii), (xi), (xiv) and (xvi) above, if the acquisition of such Collateral Interest would improve compliance with the applicable concentration limits after giving effect to such acquisition, then such Eligibility Criteria will be deemed to have been satisfied, and (b) any determination of a percentage pursuant to the Eligibility Criteria (except for the Weighted Average Spread of all Collateral Interests) shall be rounded to the nearest 1/10th of one percent.
Eligible Account”: Either (a) an account maintained with a federal or state chartered depository institution or trust company or an account or accounts maintained with the Note Administrator that, in each case, has (1) long-term senior unsecured debt obligations rated at least “A2” by Moody’s and short-term debt obligations rated “P-1” by Moody’s and (2) long-term senior unsecured debt obligations rated at least “A” by DBRS Morningstar (or, if not rated by DBRS Morningstar, rated the equivalent or higher rating by any two other NRSROs (which may include Moody’s)); (b) a segregated trust account maintained with the trust department of a federal or state chartered depository institution or trust company acting in its fiduciary capacity; provided that (i) any such institution or trust company having long-term senior unsecured debt obligations rated at least “Baa1” by Moody’s, long-term senior unsecured debt obligations rated at least “A” by DBRS Morningstar (or, if not rated by DBRS Morningstar, rated the equivalent or higher rating by any two other NRSROs (which may include Moody’s)) and a capital surplus of at least $200,000,000 and (ii) any such account is subject to fiduciary funds on deposit regulations substantially similar to 12 C.F.R. § 9.10(b); (c) an account maintained with KeyBank National Association so long as (i) KeyBank National Association’s long-term unsecured debt obligations, deposits, or commercial paper rating is at least “A2” by Moody’s and “BBB(high)” by DBRS Morningstar (if then rated by DBRS Morningstar, or if not rated by DBRS Morningstar, an equivalent or higher rating by at least two NRSROs (which may include Moody’s)) in the case of accounts in which funds are held for more than thirty (30) days and (ii) KeyBank National Association’s short-term unsecured debt obligations, deposits, or commercial paper rating is at least “P-1” by Moody’s and “R-1(low”) by DBRS Morningstar (if then rated by DBRS, or if not rated by DBRS Morningstar, an equivalent or higher rating by at least two NRSROs (which may include Moody’s)) in the case of accounts in which funds are hold for thirty (30) days or less; or (d) any other account approved by the Rating Agencies.
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Eligible Investments”: Any Dollar-denominated investment, the maturity for which corresponds to the Issuer’s expected or potential need for funds, that, at the time it is Granted to the Trustee (directly or through a Securities Intermediary or bailee) is Registered and is one or more of the following obligations or securities:
(i)    direct obligations of, and obligations the timely payment of principal of and interest on which is fully and expressly guaranteed by, the United States, or any agency or instrumentality of the United States, the obligations of which are expressly backed by the full faith and credit of the United States;
(ii)    demand and time deposits in, certificates of deposit of, bankers’ acceptances issued by, or federal funds sold by, any depository institution or trust company incorporated under the laws of the United States or any state thereof or the District of Columbia (including the Note Administrator or the commercial department of any successor Note Administrator, as the case may be; provided that such successor otherwise meets the criteria specified herein) and subject to supervision and examination by federal and/or state banking authorities so long as the commercial paper and/or the debt obligations of such depositary institution or trust company (or, in the case of the principal depositary institution in a holding company system, the commercial paper or debt obligations of such holding company) at the time of such investment or contractual commitment providing for such investment has (1) a long-term senior unsecured debt rating of not less than “Aa3” by Moody’s, in the case of long-term senior unsecured debt obligations, and a short-term debt rating of “P-1” by Moody’s, for short-term debt obligations and (2) a long-term senior unsecured debt rating of at least “AAA” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s)) and a short-term senior unsecured debt rating of at least “R-1(middle)” by DBRS Morningstar for maturities less than 90 days and “R-1(high)” for maturities greater than 90 days (or, in each case, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s));
(iii)    unleveraged repurchase or forward purchase obligations with respect to (a) any security described in clause (i) above or (b) any other security issued or guaranteed by an agency or instrumentality of the United States of America, in either case entered into with a depository institution or trust company (acting as principal) described in clause (ii) above (including the Note Administrator or the commercial department of any successor Note Administrator, as the case may be; provided that such Person otherwise meets the criteria specified herein) or entered into with a corporation (acting as principal) that has (1) a long-term senior unsecured debt rating of not less than “Aa3” by Moody’s, in the case of long-term senior unsecured debt obligations, and a short-term debt rating of “P-1” by Moody’s, for short-term debt obligations and (2) a long-term senior unsecured debt rating of at least “AAA” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s)) and a short-term senior unsecured debt rating of at least “R-1(middle)” by DBRS Morningstar for maturities less than 90 days and “R-1(high)” for maturities greater than 90 days (or, in each case, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s));
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(iv)    a reinvestment agreement issued by any bank (if treated as a deposit by such bank) that has a short-term credit rating of not less than “P-1” by Moody’s; provided that the issuer thereof must also have at the time of such investment (1) long-term unsecured debt rating of not less than “Aa3” by Moody’s, in the case of long-term senior unsecured debt obligations, and a short-term debt rating of “P-1” by Moody’s, for short-term debt obligations and (2) a long-term senior unsecured debt rating of at least “AAA” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s)) and a short-term senior unsecured debt rating of at least “R-1(middle)” by DBRS Morningstar for maturities less than 90 days and “R-1(high)” for maturities greater than 90 days (or, in each case, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s));
(v)    any money market fund (including those managed or advised by the Note Administrator or its Affiliates) that maintain a constant asset value and that are rated “Aaa-mf” by Moody’s and “R-1(middle)” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s)); and
(vi)    any other investment similar to those described in clauses (i) through (v) above that (1) Moody’s has confirmed may be included in the portfolio of Collateral as an Eligible Investment without adversely affecting its then-current ratings on the Notes and (2) has (A) long-term credit rating of not less than “Aa3” by Moody’s, in the case of long-term senior unsecured debt obligations, and a short-term debt rating of “P-1” by Moody’s, for short-term debt obligations and (B) a long-term senior unsecured debt rating of at least “AAA” by DBRS Morningstar (or, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s)) and a short-term senior unsecured debt rating of at least “R-1(middle)” by DBRS Morningstar for maturities less than 90 days and “R-1(high)” for maturities greater than 90 days (or, in each case, if not rated by DBRS Morningstar, an equivalent (or higher) rating by any two other NRSROs (which may include Moody’s));
provided that mortgage-backed securities and interest only securities shall not constitute Eligible Investments; provided, further, that (a) Eligible Investments acquired with funds in the Collection Account shall include only such obligations or securities as mature no later than three Business Days prior to the next Payment Date succeeding the acquisition of such obligations or securities, (b) Eligible Investments shall not include obligations bearing interest at inverse floating rates, (c) Eligible Investments shall be treated as indebtedness for U.S. federal income tax purposes and such investment shall not cause the Issuer to fail to be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT (unless the Issuer has previously received a No Trade or Business Opinion, in which case the investment will not cause the Issuer to be treated as a foreign corporation engaged in a trade or business in the United States for U.S. federal income tax purposes or to otherwise become subject to U.S. federal income tax on a net income basis), (d) Eligible Investments shall not be subject to deduction or withholding for or on account of any withholding or similar tax (other than any taxes imposed pursuant to FATCA), unless the payor is required to make “gross up” payments that ensure that the net amount actually received by the Issuer (free and clear of taxes, whether assessed against such obligor or the Issuer) will equal the full amount that the Issuer would have received had no such deduction or
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withholding been required, (e) Eligible Investments shall not be purchased for a price in excess of par and (f) Eligible Investments shall not include margin stock. Eligible Investments may be purchased from the Trustee and its Affiliates so long as the Trustee has a capital and surplus of at least $200,000,000 and has a long-term unsecured credit rating of at least “Baa1” by Moody’s, and may include obligations for which the Trustee or an Affiliate thereof receives compensation for providing services.
Entitlement Order”: The meaning specified in Section 8-102(a)(8) of the UCC.
Equity Interest”: A security or other interest that does not entitle the holder thereof to receive periodic payments of interest and one or more installments of principal, including (a) any bond or note or similar instrument that is by its terms convertible into or exchangeable for an equity interest, (b) any bond or note or similar instrument that includes warrants or other interests that entitle its holder to acquire an equity interest or (c) any other similar instrument that would entitle its holder to receive periodic payments of interest or a return of a residual value.
ERISA”: The United States Employee Retirement Income Security Act of 1974, as amended.
EU/UK Retention Holder”: BrightSpire Capital Operating Company, LLC (f/k/a Credit RE Operating Company, LLC).
“EU/UK Retention Holder Originated Collateral Interest”: A Collateral Interest as to which either (a) the EU/UK Retention Holder, itself or through related entities, directly or indirectly, was involved in the original agreement which created such Collateral Interest, or (b) the EU/UK Retention Holder acquired such Collateral Interest from a third party for its own account before the sale or transfer of that Collateral Interest to the Issuer.
EU/UK Risk Retention Letter”: That certain risk retention letter delivered by the Securitization Sponsor and the Retention Holder to the Issuer, the Co-Issuer, the Collateral Manager, the Trustee and the Placement Agents, dated as of the Closing Date.
EU Securitization Laws” The EU Securitization Regulation, together with any supplementary regulatory technical standards, implementing technical standards and any official guidance published in relation thereto by the European Supervisory Authorities, and any implementing laws or regulations, each as in force on the Closing Date.
EU Securitization Regulation” Regulation (EU) 2017/2402.
Euroclear”: Euroclear Bank S.A./N.V., as operator of the Euroclear system.
European Supervisory Authorities”: The European Banking Authority, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority (including, in each case, any successor or replacement organization thereto).
Event of Default”: The meaning specified in Section 5.1.
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Excepted Property”: (a) The $250 proceeds of share capital contributed by the Retention Holder as the holder of the ordinary shares of the Issuer, the $250 representing a profit fee to the Issuer, and, in each case, any interest earned thereon and the account in which such amounts are held and (b) the Preferred Share Distribution Account and all of the funds and other property from time to time deposited in or credited to the Preferred Share Distribution Account.
Exchange Act”: The Securities Exchange Act of 1934, as amended.
Exchange Collateral Interest”: The meaning specified in Section 12.1(b)(ii).
Exchangeable Notes”: The meaning specified in Section 2.16.
Exchanged Notes”: The meaning specified in Section 2.16.
Expense Year”: (i) For the first year, the period commencing on the Closing Date and ending on the next January Payment Date and (ii) thereafter, each 12-month period commencing on the Business Day following a January Payment Date and ending on the following January Payment Date.
FATCA”: Sections 1471 through 1474 of the Code, the treasury regulations promulgated thereunder, and any related provisions of law, court decisions, administrative guidance or agreements with any taxing authority (or laws thereof) in respect thereof.
Federal Reserve Bank of New York’s Website”: The website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
Financial Asset”: The meaning specified in Section 8-102(a)(9) of the UCC.
Financing Statements”: Financing statements relating to the Collateral naming the Issuer, as debtor, and the Trustee, on behalf of the Secured Parties, as secured party.
Funded Companion Participation”: With respect to each Collateral Interest that is a Participation, each related fully funded companion participation which is not an asset of the Issuer and is not part of the Collateral.
Funded Participation Interest”: Any fully funded participation interest in an Underlying Commercial Real Estate Loan that is acquired by the Issuer.
Future Funding Account Control Agreement”: Any account control agreement entered into in accordance with the terms of the Future Funding Agreement by and among the Future Funding Indemnitor, the Trustee, as secured party, the Note Administrator and an account bank, as the same may be amended, supplemented or replaced from time to time.
Future Funding Agreement”: The meaning specified in the Servicing Agreement.
Future Funding Amount”: With respect to any Future Funding Participation, the amount of the unfunded portion thereof.
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Future Funding Indemnitor”: Credit RE Holdco, LLC, and its successors in interest.
Future Funding Participation”: With respect to each Collateral Interest that is a Funded Participation Interest, the related unfunded future funding companion participation interest, which (unless it is acquired as a Reinvestment Collateral Interest or Exchange Collateral Interest after the Closing Date in accordance with the terms of this Indenture) is not owned by the Issuer.
Future Funding Reserve Account”: The meaning specified in the Servicing Agreement.
GAAP”: The meaning specified in Section 6.3(k).
General Intangible”: The meaning specified in Section 9-102(a)(42) of the UCC.
Global Notes”: The Rule 144A Global Notes and the Regulation S Global Notes.
Goldman”: Goldman Sachs & Co. LLC.
Governing Documents”: With respect to (a) the Issuer, the memorandum and articles of association of the Issuer, as amended and restated and/or supplemented and in effect from time to time and (b) all other Persons, the articles of incorporation, certificate of incorporation, by-laws, certificate of limited partnership, limited partnership agreement, limited liability company agreement, certificate of formation, articles of association and similar charter documents, as applicable to any such Person.
Government Items”: A security (other than a security issued by the Government National Mortgage Association) issued or guaranteed by the United States of America or an agency or instrumentality thereof representing a full faith and credit obligation of the United States of America and, with respect to each of the foregoing, that is maintained in book-entry form on the records of a Federal Reserve Bank.
Grant”: To grant, bargain, sell, warrant, alienate, remise, demise, release, convey, assign, transfer, mortgage, charge, pledge, create and grant a security interest in and right of setoff against, deposit, set over and confirm. A Grant of the Collateral or of any other security or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including without limitation the immediate continuing right to claim, collect, receive and take receipt for principal and interest payments in respect of the Collateral (or any other security or instrument), and all other amounts payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Herfindahl Score”: On any date of determination, the quotient of (a) one divided by (b) the sum of the series of products obtained for each Collateral Interest and Principal Proceeds
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(whether held as cash or Eligible Investments), determined by squaring the quotient of (i) the Principal Balance of each such Collateral Interest (or in the case of Principal Proceeds in increments of $10,000,000) divided by (ii) the Aggregate Outstanding Portfolio Balance.
Holder” or “Securityholder”: With respect to any Note, the Person in whose name such Note is registered in the Notes Register. With respect to any Preferred Share, the Person in whose name such Preferred Share is registered in the register maintained by the Share Registrar.
Holder AML Obligations”: The meaning set forth in Section 2.11(d).
Hospitality Property”: A real property comprised (wholly or partially) of hospitality space (including mixed use property) as to which the majority of the underwritten revenue is from hospitality space.
IAI”: An institution that is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under Regulation D under the Securities Act or an entity in which all of the equity owners are such “accredited investors.”
Indenture”: This instrument as originally executed and, if from time to time supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, as so supplemented or amended.
Indenture Accounts”: The Payment Account, the Reinvestment Account and the Custodial Account.
Independent”: As to any Person, any other Person (including, in the case of an accountant, or lawyer, a firm of accountants or lawyers and any member thereof or an investment bank and any member thereof) who (a) does not have and is not committed to acquire any material direct or any material indirect financial interest in such Person or in any Affiliate of such Person, and (b) is not connected with such Person as an Officer, employee, promoter, underwriter, voting trustee, partner, director or Person performing similar functions. “Independent” when used with respect to any accountant may include an accountant who audits the books of such Person if in addition to satisfying the criteria set forth above the accountant is independent with respect to such Person within the meaning of Rule 101 of the Code of Ethics of the American Institute of Certified Public Accountants.
Whenever any Independent Person’s opinion or certificate is to be furnished to the Trustee or Note Administrator such opinion or certificate shall state, or shall be deemed to state, that the signer has read this definition and that the signer is Independent within the meaning hereof.
Industrial Property”: A real property comprised (wholly or partially) of industrial space (including mixed use property) as to which the majority of the underwritten revenue is from industrial space.
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Initial MASCOT Note Issuance Date”: The 27th day following the Closing Date (or if such 27th day is not a Business Day, the next Business Day).
Inquiry”: The meaning specified in Section 10.13(a).
Instrument”: The meaning specified in Section 9-102(a)(47) of the UCC.
Interest Accrual Period”: With respect to the Notes and (a) the first Payment Date, the period from and including the Closing Date to and including the 18th day of the month in which such first Payment Date occurs and (b) with respect to each successive Payment Date, the period from and including the 19th day of the month immediately preceding the month in which such Payment Date occurs to and including the 18th day of the month in which such Payment Date occurs.
Interest Advance”: The meaning specified in Section 10.7(a).
Interest Coverage Ratio”: As of any Measurement Date, the number (expressed as a percentage) calculated by dividing:
(a)    (i) the sum of (A) the expected scheduled interest payments due (in each case regardless of whether the due date for any such interest payment has yet occurred) in the Due Period in which such Measurement Date occurs on (x) the Collateral Interests (excluding, subject to clause (3) of the last paragraph of this definition, accrued and unpaid interest on Defaulted Collateral Interests); provided that no interest (or dividends or other distributions) will be included with respect to any Collateral Interest to the extent that such Collateral Interest does not provide for the scheduled payment of interest (or dividends or other distributions) in Cash and (y) the Eligible Investments held in the Accounts (whether purchased with Interest Proceeds or Principal Proceeds), plus (B) Interest Advances, if any, advanced by the Advancing Agent or the Backup Advancing Agent, with respect to the related Payment Date, minus (ii) any amounts scheduled to be paid pursuant to Section 11.1(a)(i)(1) through (4) (other than any Collateral Manager Fees that the Collateral Manager has agreed to waive in accordance with this Indenture and the Collateral Management Agreement); by
(b)    the sum of (i) the scheduled interest on the Class A Notes payable on the Payment Date immediately following such Measurement Date, plus (ii) any Class A Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date, plus (iii) the scheduled interest on the Class A-S Notes payable on the Payment Date immediately following such Measurement Date, plus (iv) any Class A-S Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date, plus (v) the scheduled interest on the Class B Notes payable on the Payment Date immediately following such Measurement Date, plus (vi) any Class B Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date, plus (vii) the scheduled interest on the Class C Notes payable on the Payment Date immediately following such Measurement Date, plus (viii) any Class C Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date plus (ix) the scheduled interest on the Class D Notes payable on the Payment Date immediately following such Measurement Date, plus (x) any Class D
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Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date, plus (xi) the scheduled interest on the Class E Notes payable on the Payment Date immediately following such Measurement Date, plus (xii) any Class E Defaulted Interest Amount payable on the Payment Date immediately following such Measurement Date.
For purposes of calculating any Interest Coverage Ratio, (1) the expected interest income on the Collateral Interests and Eligible Investments and the expected interest payable on the Offered Notes shall be calculated using the interest rates applicable thereto on the applicable Measurement Date, (2) accrued original issue discount on Eligible Investments shall be deemed to be a scheduled interest payment thereon due on the date such original issue discount is scheduled to be paid, (3) there will be excluded all scheduled or deferred payments of interest on or principal of Collateral Interests and any payment that the Collateral Manager has determined in its reasonable judgment will not be made in Cash or received when due and (4) with respect to any Collateral Interest as to which any interest or other payment thereon is subject to withholding tax of any relevant jurisdiction, each payment thereon shall be deemed to be payable net of such withholding tax unless the related borrower is required to make additional payments to fully compensate the Issuer for such withholding taxes (including in respect of any such additional payments).
Interest Coverage Test”: The test that will be met as of any Measurement Date on which any Offered Notes remain Outstanding if the Interest Coverage Ratio as of such Measurement Date is equal to or greater than 120.00%.
Interest Distribution Amount”: Each of the Class A Interest Distribution Amount, the Class A-S Interest Distribution Amount, the Class B Interest Distribution Amount, the Class C Interest Distribution Amount, the Class D Interest Distribution Amount, the Class E Interest Distribution Amount, the Class F Interest Distribution Amount, the Class F-E Interest Distribution Amount, the Class F-X Interest Distribution Amount, the Class G Interest Distribution Amount, the Class G-E Interest Distribution Amount and the Class G-X Interest Distribution Amount.
Interest Proceeds”:
(a)    all Cash payments of interest (including any deferred interest and any amount representing the accreted portion of a discount from the face amount of a Collateral Interest or an Eligible Investment) or other distributions (excluding Principal Proceeds) received on all Collateral Interests other than Defaulted Collateral Interests (net of any fees and other compensation and reimbursement of expenses and Servicing Advances and interest thereon (but not net of amounts payable pursuant to any indemnification provisions) to which the Servicer or the Special Servicer are entitled pursuant to the terms of the Servicing Agreement (and, with respect to each Non-Serviced Commercial Real Estate Loan, net of amounts payable to the servicer and special servicer under the applicable servicing agreement)) and Eligible Investments, including, in the Collateral Manager’s commercially reasonable discretion (exercised as of the trade date), the accrued interest received in connection with a sale of such Collateral Interests or Eligible Investments (to the extent such accrued interest was not applied to the purchase of Reinvestment Collateral Interests), in each case, excluding any accrued interest
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included in Principal Proceeds pursuant to clause (c) or (d) of the definition of Principal Proceeds and excluding any origination fees, which will be retained by the Seller and will not be assigned to the Issuer;
(b)    all make whole premiums, spread maintenance, yield maintenance or prepayment premiums, or any interest amount paid in excess of the stated interest amount of a Collateral Interest;
(c)    all amendment, modification and waiver fees, late payment fees (to the extent not paid to the Servicer or the Special Servicer as additional servicing compensation), extension fees and other fees and commissions received by the Issuer in connection with such Collateral Interests and Eligible Investments;
(d)    Interest Advances, if any, advanced by the Advancing Agent or the Backup Advancing Agent;
(e)    all Cash payments corresponding to accrued original issue discount on Eligible Investments;
(f)    any interest payments received in Cash by the Issuer on any asset held by a Permitted Subsidiary that is not a Defaulted Collateral Interest;
(g)    all payments of principal on Eligible Investments purchased with any other Interest Proceeds;
(h)    Cash and Eligible Investments contributed by the Retention Holder or an affiliate thereof, so long as the Retention Holder or an affiliate that is 100% owned by BRSP Sub-REIT and a “disregarded entity” for U.S. federal income tax purposes continues to hold 100% of the Preferred Shares, pursuant to the terms of this Indenture and designated as “Interest Proceeds” by the Retention Holder or such affiliate; and
(i)    all other Cash payments received with respect to the Collateral Interests to the extent such proceeds are designated “Interest Proceeds” by the Collateral Manager in its sole discretion with notice evidenced by an Officer’s Certificate to the Trustee and Note Administrator, provided that Interest Proceeds will not include (i) any payment or proceeds specifically defined as “Principal Proceeds” in the definition thereof or (ii) any Nonrecoverable Interest Advances that were previously reimbursed to the Advancing Agent or the Backup Advancing Agent.
Interest Shortfall”: The meaning set forth in Section 10.7(a).
Interested Person”: The Servicer, the Special Servicer, any independent contractor engaged by the Special Servicer, the Collateral Manager, or, in connection with any individual Commercial Real Estate Loan, the borrower, the manager of the related Mortgaged Property, the holder of a related mezzanine loan or companion participation, or any affiliate of any of the preceding entities.
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Investor Certification”: A certificate, in substantially the form set forth in Exhibit Q-1 or Exhibit Q-2, representing that such Person executing the certificate is a Noteholder, a beneficial owner of a Note, a holder of a Preferred Share or a prospective investor in a Note or a Preferred Share and that either (a) such Person is not an agent of, or an investment advisor to, any borrower or affiliate of any borrower under a Commercial Real Estate Loan, in which case such person will have access to all the reports and information made available to Noteholders or Preferred Shareholders under this Indenture or (b) such Person is an agent or Affiliate of, or an investment advisor to, any borrower under a Commercial Real Estate Loan, in which case such person will only receive access to the Monthly Report. The Investor Certification may be submitted electronically by means of the Note Administrator’s Website.
Investor Q&A Forum”: The meaning specified in Section 10.13(a).
ISDA Definitions”: The 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
ISDA Fallback Adjustment”: The spread adjustment, (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
ISDA Fallback Rate”: The rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
Issuer”: BRSP 2021-FL1, Ltd., an exempted company incorporated under the laws of the Cayman Islands with limited liability, until a successor Person shall have become the Issuer pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor Person.
Issuer Order” and “Issuer Request”: A written order or request (which may be in the form of a standing order or request) dated and signed in the name of the Issuer (and the Co-Issuer, if applicable) by an Authorized Officer of the Issuer (and by an Authorized Officer of the Co-Issuer, if applicable), or by an Authorized Officer of the Collateral Manager on behalf of the Issuer. For the avoidance of doubt, an order or request provided in an email (or other electronic communication) sent by an Authorized Officer of the Issuer, Co-Issuer or Collateral Manager, as applicable, shall constitute an Issuer Order, in each case except to the extent that the Trustee or Note Administrator reasonably requests otherwise.
Junior Participation”: Any junior participation interests (or B Notes) in an Underlying Commercial Real Estate Loan pursuant to a Senior AB Participation, in which the related Senior Participation is a Collateral Interest that has been acquired by the Issuer.
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Largest One Quarter Future Advance Estimate”: The meaning specified in the Servicing Agreement.
LIBOR”: The London Interbank Offer Rate for a one month tenor.
Liquidation Fee”: The meaning specified in the Servicing Agreement.
LLC Managers”: The managers of the Co-Issuer duly appointed by the sole member of the Co-Issuer (or, if there is only one manager of the Co-Issuer so duly appointed, such sole manager).
Loan Documents”: The indenture, loan agreement, note, mortgage, intercreditor agreement, participation agreement, co-lender agreement or other agreement pursuant to which a Collateral Interest or an Eligible Investment has been issued or created and each other agreement that governs the terms of or secures the obligations represented by such Collateral Interest or an Eligible Investment or of which holders of such Collateral Interest or an Eligible Investment are the beneficiaries.
London Banking Day”: The meaning set forth in Schedule B.
Loss Value Payment”: A Cash payment made to the Issuer by the Seller in connection with a Material Breach of a representation or warranty or a Material Document Defect with respect to any Collateral Interest pursuant to the Collateral Interest Purchase Agreement in an amount that the Collateral Manager on behalf of the Issuer, subject to the consent of a majority of the holders of each Class of Notes (excluding any Note held by the Seller or any of its Affiliates), determines is sufficient to compensate the Issuer for such Material Breach of a representation or warranty or Material Document Defect, which Loss Value Payment will be deemed to cure such Material Breach or Material Document Defect.
Majority”: With respect to (a) any Class of Notes, the Holders of more than 50% of the Aggregate Outstanding Amount of the Notes of such Class; and (b) the Preferred Shares, the Preferred Shareholders representing more than 50% of the aggregate Notional Amount of the Preferred Shares.
MASCOT Interest Only Notes”: The meaning specified in Section 2.3.
MASCOT Notes”: The meaning specified in Section 2.3.
MASCOT P&I Notes”: The meaning specified in Section 2.3.
Material Breach”: With respect to each Collateral Interest, the meaning specified in the Collateral Interest Purchase Agreement.
Material Document Defect”: With respect to each Collateral Interest, the meaning specified in the Collateral Interest Purchase Agreement.
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Maturity”: With respect to any Note, the date on which the unpaid principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity Date or by declaration of acceleration or otherwise.
MCSL”: Maples Compliance Services (Cayman) Limited, a company incorporated in the Cayman Islands with its principal office at PO Box 1093, Queensgate House, Grand Cayman, KY1-1102, Cayman Islands.
Measurement Date”: Any of the following: (a) the Closing Date, (b) the date of acquisition or disposition of any Collateral Interest, (c) any date on which any Collateral Interest becomes a Defaulted Collateral Interest, (d) each Determination Date and (e) with reasonable notice to the Issuer, the Collateral Manager and the Note Administrator, any other Business Day that any Rating Agency or the Holders of at least 66-⅔% of the Aggregate Outstanding Amount of any Class of Notes requests be a “Measurement Date”; provided that if any such date would otherwise fall on a day that is not a Business Day, the relevant Measurement Date will be the immediately preceding Business Day.
Mezzanine Loan”: A mezzanine loan secured by a pledge of all of the equity interest in an obligor under a Mortgage Loan that is either acquired by the Issuer or in which a Participation represents an interest.
Minnesota Collateral”: The meaning specified in Section 3.3(b)(ii).
Mixed Use Property” A real property comprised of five or more residential units (including mixed use, multi-family/office, multi-family/retail and student housing properties), office space, industrial space, retail space, hospitality space and/or self-storage space as to which no such property type represents a majority of the underwritten revenue.
Modified Collateral Interest”: Any Collateral Interest that is a Modified Commercial Real Estate Loan or a participation interest in a Modified Commercial Real Estate Loan.
Modified Commercial Real Estate Loan”: A Commercial Real Estate Loan that has been modified (other than pursuant to an Administrative Modification or Criteria-Based Modification) by the Special Servicer pursuant to the Servicing Agreement in a manner that:
(a)    except as expressly contemplated by the related Loan Documents, reduces or delays in a material and adverse manner the amount or timing of any payment of principal or interest due thereon (other than, or in addition to, bringing current monthly payments with respect to such Commercial Real Estate Loan);
(b)    except as expressly contemplated by the related Loan Documents, results in a release of the lien of the mortgage on any material portion of the related Mortgaged Property without a corresponding principal prepayment in an amount not less than the fair market value (as is), as determined by an appraisal delivered to the Special Servicer (at the expense of the related borrower and upon which the Special Servicer may conclusively rely), of the property to be released; or
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(c)    in the reasonable good faith judgment of the Special Servicer, otherwise materially impairs the value of the security for such Commercial Real Estate Loan or reduces the likelihood of timely payment of amounts due thereon.
Monthly Report”: The meaning specified in Section 10.9(a).
Moody’s”: Moody’s Investors Service, Inc., and its successor in interest.
Moody’s Rating Factor”: With respect to any Collateral Interest, the number set forth in the table below opposite the Moody’s Rating of such Collateral Interest:
Moody’s RatingMoody’s Rating FactorMoody’s RatingMoody’s Rating Factor
Aaa1Ba1940
Aa110Ba21,350
Aa220Ba31,766
Aa340B12,220
A170B22,720
A2120B33,490
A3180Caa14,770
Baa1260Caa26,500
Baa2360Caa38,070
Baa3610Ca or lower10,000
Moody’s Recovery Rate”: With respect to each Collateral Interest, the rate specified in the table set forth below with respect to the property type of the related Mortgaged Property or Mortgaged Properties:
Property TypeMoody’s Recovery Rate
Industrial and Multi-Family (including Student Housing)60%
Office, Self-Storage and Mixed Use55%
Hospitality Properties45%
All other property types40%
Mortgage Loan”: A commercial or multifamily real estate mortgage loan that is either acquired by the Issuer or in which a Participation represents an interest, which mortgage loan is secured by a first-lien mortgage or deed-of-trust on commercial, multifamily and/or manufactured-housing community properties or ground lease interests therein.
Mortgaged Property”: With respect to any Mortgage Loan, the commercial and/or multi-family mortgaged property or properties securing such Mortgage Loan.
MS”: Morgan Stanley & Co. LLC.
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Multi-Family Property”: A real property comprised of five or more residential rental units (including mixed use multi-family/office, multi-family/retail and student housing properties) as to which the majority of the underwritten revenue is from residential rental units.
Net Outstanding Portfolio Balance”: On any Measurement Date, the sum (without duplication) of:
(a)    the Aggregate Principal Balance of the Collateral Interests (other than Modified Collateral Interests and Defaulted Collateral Interests);
(b)    the Aggregate Principal Balance of all Principal Proceeds held as Cash or Eligible Investments and all Cash and Eligible Investments held in the Reinvestment Account; and
(c)    with respect to each Modified Collateral Interest or Defaulted Collateral Interest, the Calculation Amount of such Collateral Interest;
provided, however, that (i) with respect to each Collateral Interest acquired at a purchase price that is less than 95% of the outstanding Principal Balance of such Collateral Interest, the “Principal Balance” of such Collateral Interest will be the lesser of the purchase price and the amount determined pursuant to clause (c) above, if applicable, for purposes of computing the Net Outstanding Portfolio Balance, (ii) with respect to each Defaulted Collateral Interest that has been owned by the Issuer for more than three years after becoming a Defaulted Collateral Interest, the Principal Balance of such Defaulted Collateral Interest will be zero for purposes of computing the Net Outstanding Portfolio Balance and (iii) in the case of a Collateral Interest subject to a Credit Risk/Defaulted Collateral Interest Cash Purchase or an exchange for an Exchange Collateral Interest, the Collateral Manager will have 45 days to exercise such purchase or exchange and during such period such Collateral Interest will not be treated as a Defaulted Collateral Interest for purposes of computing the Net Outstanding Portfolio Balance.
No Downgrade Confirmation”: A confirmation from a Rating Agency that any proposed action, or failure to act or other specified event will not, in and of itself, result in the downgrade or withdrawal of the then-current rating assigned to any Class of Notes then rated by such Rating Agency; provided that if the Requesting Party receives a written waiver or acknowledgment indicating its decision not to review the matter for which the No Downgrade Confirmation is sought, then the requirement to receive a No Downgrade Confirmation from the Rating Agency with respect to such matter shall not apply. For the purposes of this definition, any confirmation, waiver, request, acknowledgment or approval which is required to be in writing may be in the form of electronic mail. Notwithstanding anything to the contrary set forth in this Indenture, at any time during which the Notes are no longer rated by a Rating Agency, a No Downgrade Confirmation shall not be required from such Rating Agency under this Indenture.
No Entity-Level Tax Opinion”: An opinion of Dechert LLP or another nationally recognized tax counsel experienced in such matters that the Issuer will not be treated as a foreign corporation engaged in a trade or business in the United States for U.S. federal income tax purposes or otherwise become subject to U.S. federal income tax on a net income basis, which
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opinion may be conditioned on compliance with certain restrictions on the investment or other activities of the Issuer and the Collateral Manager on behalf of the Issuer.
No Trade or Business Opinion”: An opinion of Dechert LLP or another nationally recognized tax counsel experienced in such matters that the Issuer will be treated as a foreign corporation that is not engaged in a trade or business in the United States for U.S. federal income tax purposes, which opinion may be conditioned on compliance with certain restrictions on the investment or other activities of the Issuer and the Collateral Manager on behalf of the Issuer.
Non-Acquired Participation”: Any Companion Participation that is not acquired by the Issuer.
Non-Call Period”: The period from the Closing Date to and including the Business Day immediately preceding the Payment Date in July 2023 during which no Optional Redemption is permitted to occur.
Non-Controlled Collateral Interest”: Each Collateral Interest that is a Participation that is owned by the Issuer, but is controlled by the holder of a related controlling Companion Participation. If a related controlling Companion Participation is acquired in its entirety by the Issuer, the Collateral Interest (together with a related controlling Companion Participation) will become a Controlled Collateral Interest. As of the Closing Date, the Closing Date Collateral Interests identified on Schedule A as “Clutter NYC Portfolio,” “360 Wythe,” “Milagro Multifamily” and “Central Park Plaza” are Non-Controlled Collateral Interests.
Non-Custody Collateral Interest”: Each Collateral Interest that is related to a Non-Serviced Commercial Real Estate Loan and is owned by the Issuer, but with respect to which the Note Administrator is not appointed as Custodian of such Collateral Interest under this Indenture. If the related Commercial Real Estate Loan is acquired in its entirety by the Issuer, the Collateral Interest (together with the related Companion Participation) shall become a Custody Collateral Interest. As of the Closing Date, (a) each of the Closing Date Collateral Interests that represent an interest in a Non-Serviced Commercial Real Estate Loan is a Non-Custody Collateral Interest and (b) each of the Closing Date Collateral Interests other than the Closing Date Collateral Interests specified in clause (a) above shall be Custody Collateral Interests.
Non-Permitted AML Holder”: Any Holder that fails to comply with the Holder AML Obligations.
Non-Permitted Holder”: The meaning specified in Section 2.13(b) and any Non-Permitted AML Holder.
Non-Serviced Commercial Real Estate Loan”: Any Commercial Real Estate Loan for so long as such Commercial Real Estate Loan is subject to a servicing agreement other than the Servicing Agreement. As of the Closing Date, the related Commercial Real Estate Loans to the Collateral Interests identified on Schedule A as “Clutter NYC Portfolio,” “360 Wythe,” “Milagro Multifamily” and “Central Park Plaza” are Non-Serviced Commercial Real Estate Loans.
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Nonrecoverable Interest Advance”: Any Interest Advance previously made or proposed to be made pursuant to Section 10.7 that the Advancing Agent or the Backup Advancing Agent, as applicable, has determined in its sole discretion, exercised in good faith, that the amount so advanced or proposed to be advanced plus interest expected to accrue thereon, will not be ultimately recoverable from subsequent payments or collections with respect to the Collateral Interests.
Note Administrator”: Wells Fargo Bank, National Association, solely in its capacity as note administrator hereunder, unless a successor Person shall have become the Note Administrator pursuant to the applicable provisions of this Indenture, and thereafter “Note Administrator” shall mean such successor Person. Wells Fargo Bank, National Association, will perform its duties as Note Administrator through its Corporate Trust Services division (including, as applicable, any agents or affiliates utilized thereby).
Note Administrator’s Website”: Initially, www.ctslink.com; provided that such address may change upon notice by the Note Administrator to the parties hereto, the 17g-5 Information Provider and Noteholders.
Note Interest Rate”: With respect to the Class A Notes, the Class A Rate, with respect to the Class A-S Notes, the Class A-S Rate, with respect to the Class B Notes, the Class B Rate, with respect to the Class C Notes, the Class C Rate, with respect to the Class D Notes, the Class D Rate, with respect to the Class E Notes, the Class E Rate, with respect to the Class F Notes, the Class F Rate, with respect to the Class F-E Notes, the interest rate on the Class F-E Notes described in Section 2.16, with respect to the Class F-X Notes, the interest rate on the Class F-X Notes described in Section 2.16, with respect to the Class G Notes, the Class G Rate, with respect to the Class G-E Notes, the interest rate on the Class G-E Notes described in Section 2.16 and with respect to the Class G-X Notes, the interest rate on the Class G-X Notes described in Section 2.16.
Note Protection Tests”: The Par Value Test and the Interest Coverage Test.
Noteholder”: The Person in whose name such Note is registered in the Notes Register.
Notes”: The Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes, the Class E Notes, the Class F Notes, the Class F-E Notes, the Class F-X Notes, the Class G Notes, the Class G-E Notes and the Class F-X Notes, collectively, authorized by, and authenticated and delivered under, this Indenture.
Notes Register” and “Notes Registrar”: The respective meanings specified in Section 2.5(a).
Notional Amount”: In respect of the Preferred Shares, the per share notional amount as provided in the Preferred Share Paying Agency Agreement. The aggregate Notional Amount of the Preferred Shares on the Closing Date will be $56,000,000.
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NRSRO”: Any nationally recognized statistical rating organization, including the Rating Agencies.
NRSRO Certification”: A certification (a) executed by a NRSRO in favor of the 17g-5 Information Provider in substantially the form set forth in Exhibit N or (b) provided electronically and executed by an NRSRO by means of a click-through confirmation on the 17g-5 Website.
Offered Notes”: The Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes, collectively, authorized by, and authenticated and delivered under, this Indenture.
Offering Memorandum”: The Offering Memorandum, dated July 12, 2021, relating to the offering of the Offered Notes.
Office Property”: A real property comprised (wholly or partially) of office space (including mixed use property) as to which the majority of the underwritten revenue is from office space.
Officer”: With respect to any company, corporation or limited liability company, including the Issuer, the Co-Issuer and the Collateral Manager, any Director, Manager, the Chairman of the Board of Directors, the President, any Executive Vice President, any Senior Vice President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, General Partner of such entity or any authorized person designated by such company, corporation or limited liability company as an “Officer”; and with respect to the Trustee or Note Administrator, any Trust Officer; and with respect to the Servicer or the Special Servicer, a “Responsible Officer” (as defined in the Servicing Agreement).
Officer’s Certificate”: With respect to the Issuer, the Co-Issuer, the Collateral Manager, Servicer and the Special Servicer, any certificate executed by an Authorized Officer thereof.
Opinion of Counsel”: A written opinion addressed to the Trustee and the Note Administrator and, if required by the terms hereof, the Rating Agencies (each, a “Recipient”) in form and substance reasonably satisfactory to each Recipient, of an outside third party counsel of national recognition (or the Cayman Islands, in the case of an opinion relating to the laws of the Cayman Islands), which attorney may, except as otherwise expressly provided in this Indenture, be counsel for the Issuer, and which attorney shall be reasonably satisfactory to the Trustee and the Note Administrator. Whenever an Opinion of Counsel is required hereunder, such Opinion of Counsel may rely on opinions of other counsel who are so admitted and so satisfactory which opinions of other counsel shall accompany such Opinion of Counsel and shall either be addressed to each Recipient or shall state that each Recipient shall each be entitled to rely thereon.
Optional Redemption”: The meaning specified in Section 9.1(c).
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Other Tranche”: The meaning specified in Section 16.5.
Outstanding”: With respect to the Notes, as of any date of determination, all of the Notes or any Class of Notes, as the case may be, theretofore authenticated and delivered under this Indenture except:
(a)    Notes theretofore canceled by the Notes Registrar or delivered to the Notes Registrar for cancellation;
(b)    Notes or portions thereof for whose payment or redemption funds in the necessary amount have been theretofore irrevocably deposited with the Note Administrator or the Paying Agent in trust for the Holders of such Notes pursuant to Section 4.1(a)(ii); provided that, if such Notes or portions thereof are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture;
(c)    Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, unless proof satisfactory to the Note Administrator is presented that any such Notes are held by a Holder in due course; and
(d)    Notes alleged to have been mutilated, destroyed, lost or stolen for which replacement Notes have been issued as provided in Section 2.6;
provided that in determining whether the Noteholders of the requisite Aggregate Outstanding Amount have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) Notes owned by the Issuer, the Co-Issuer or any Affiliate thereof shall be disregarded and deemed not to be Outstanding, (ii) Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer, the Co-Issuer or any other obligor upon the Notes or any Affiliate of the Issuer, the Co-Issuer, the Collateral Manager or such other obligor and (iii) in relation to (A) the exercise by the Noteholders of their right, in connection with certain Events of Default, to accelerate amounts due under the Notes and (B) any amendment or other modification of, or assignment or termination of, any of the express rights or obligations of the Collateral Manager under the Collateral Management Agreement or the Indenture, Notes owned by the Collateral Manager or any of its Affiliates, or by any accounts managed by them, will be disregarded and deemed not to be Outstanding. The Note Administrator and the Trustee will be entitled to rely on certificates from Noteholders to determine any such affiliations and shall be protected in so relying, except to the extent that a Trust Officer of the Trustee or Note Administrator, as applicable, has actual knowledge of any such affiliation.
Owned Participation”: Each of the Participations included among the Closing Date Collateral Interests and, upon any acquisition thereof after the Closing Date, any Funded Companion Participation or other Participation acquired by the Issuer.
Par Purchase Price”: With respect to a Collateral Interest, the sum of (a) the Principal Balance of such Collateral Interest as of the date of purchase; plus (b) all accrued and unpaid
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interest on such Collateral Interest at the related interest rate to but not including the date of purchase; plus (c) all related unreimbursed Servicing Advances and accrued and unpaid interest on such Servicing Advances at the Advance Rate, plus (d) all Special Servicing Fees and either workout fees or liquidation fees (but not both) allocable to such Collateral Interest; plus (e) all unreimbursed expenses incurred by the Issuer (and if applicable, the Seller), the Servicer and the Special Servicer in connection with such Collateral Interest.
Par Value Ratio”: As of any Measurement Date, the number (expressed as a percentage) calculated by dividing (a) the Net Outstanding Portfolio Balance on such Measurement Date by (b) the sum of the Aggregate Outstanding Amount of the Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes and the amount of any unreimbursed Interest Advances.
Par Value Test”: A test that will be satisfied as of any Measurement Date on which any Offered Notes remain outstanding if the Par Value Ratio on such Measurement Date is equal to or greater than 117.01%.
Participated Loan”: Any participation interest in a commercial real estate loan and/or a mezzanine loan.
Participated Loan Collection Account”: The meaning specified in the Servicing Agreement.
Participating Institution”: With respect to any Participation, the entity that holds legal title to the participated asset.
Participation”: Any Senior Participation or Junior Participation.
Participation Agreement”: With respect to each Participated Loan, the participation agreement (and not an amended and restated participation agreement), if applicable, that governs the rights and obligations of the holders of the related Owned Participation, each related Future Funding Participation and/or each related Funded Companion Participation.
Participation Custodial Agreement”: With respect to any Non-Custody Collateral Interest, either that certain Custodial Agreement entered into in accordance with the related Amended Participation Agreement and pursuant to which the Participation Custodian holds the loan file, or the related indenture pursuant to which such Participation Custodian holds the loan file, with respect to a Participated Loan related to such Non-Custody Collateral Interest.
Participation Custodian”: With respect to any Non-Custody Collateral Interest, the document custodian or similar party under the related Participation Custodial Agreement.
Paying Agent”: The Note Administrator, in its capacity as Paying Agent hereunder, authorized by the Issuer and, with respect to the Offered Notes, the Co-Issuer to pay the principal of or interest on any Notes on behalf of the Issuer and the Co-Issuer as specified in Section 7.1.
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Payment Account”: The payment account established by the Note Administrator pursuant to Section 10.3.
Payment Date”: The 19th day of each month (or if such day is not a Business Day, the next preceding Business Day) commencing in August 2021 and ending on the Stated Maturity Date unless the Notes are redeemed or repaid prior thereto.
PE Purchase Rights”: The meaning specified in Section 12.1(c).
Permitted Subsidiary”: Any one or more single purpose entities that are wholly-owned by the Issuer and are established exclusively for the purpose of taking title to mortgage, real estate or any Sensitive Asset in connection, in each case, with the exercise of remedies or otherwise.
Person”: An individual, corporation (including a business trust), partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated association or government or any agency or political subdivision thereof.
Placement Agreement”: The placement agreement relating to the Notes dated as of the Closing Date by and among the Issuer, the Co-Issuer and the Placement Agents.
Placement Agents”: WF, MS, Barclays, Goldman and Citi.
Pledged Collateral Interest”: On any date of determination, any Collateral Interest that has been Granted to the Trustee and not been released from the lien of this Indenture pursuant to Section 10.10.
Preferred Share Distribution Account”: A segregated account established and designated as such by the Preferred Share Paying Agent pursuant to the Preferred Share Paying Agency Agreement.
Preferred Share Paying Agency Agreement”: The Preferred Share Paying Agency Agreement, dated as of the Closing Date, among the Issuer, the Preferred Share Paying Agent and the Share Registrar relating to the Preferred Shares, as amended from time to time in accordance with the terms thereof.
Preferred Share Paying Agent”: Wells Fargo Bank, National Association, solely in its capacity as Preferred Share Paying Agent under the Preferred Share Paying Agency Agreement and not individually, unless a successor Person shall have become the Preferred Share Paying Agent pursuant to the applicable provisions of the Preferred Share Paying Agency Agreement, and thereafter Preferred Share Paying Agent shall mean such successor Person.
Preferred Shareholder”: A registered owner of Preferred Shares as set forth in the register of members maintained by the Share Registrar.
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Preferred Shares”: The preferred shares issued by the Issuer concurrently with the issuance of the Notes.
Principal Balance” or “par”: With respect to any Commercial Real Estate Loan, Companion Participation, Collateral Interest or Eligible Investment, as of any date of determination, the outstanding principal amount of such Commercial Real Estate Loan, Companion Participation, Collateral Interest (as reduced by all payments or other collections of principal received or deemed received, and any principal forgiven by the Special Servicer and other principal losses realized, on such Collateral Interest during the related collection period) or Eligible Investment; provided that the Principal Balance of any Eligible Investment that does not pay Cash interest on a current basis will be the accreted value thereof.
Principal Proceeds”:
(a)    all principal payments (including Unscheduled Principal Payments and any casualty or condemnation proceeds and any proceeds from the exercise of remedies (including liquidation proceeds)) received in respect of (i) Eligible Investments (other than Eligible Investments purchased with Interest Proceeds and any amount representing the accreted portion of a discount from the face amount of a Collateral Interest or an Eligible Investment) and (ii) Collateral Interests as a result of (1) a maturity, scheduled amortization or mandatory prepayment on a Collateral Interest, (2) optional prepayments made at the option of the related borrower, (3) recoveries on Defaulted Collateral Interests or (4) any other principal payments received with respect to Collateral Interests;
(b)    Sale Proceeds received in respect of sales in accordance with the Transaction Documents and excluding (i) accrued interest included in Sale Proceeds, (ii) any reimbursement of expenses included in such Sale Proceeds and (iii) any portion of such Sale Proceeds that are in excess of the outstanding principal balance of the related Collateral Interest or Eligible Investment;
(c)    any interest received on such Collateral Interests or Eligible Investments to the extent such interest constitutes proceeds from accrued interest purchased with Principal Proceeds other than accrued interest purchased by the Issuer on or prior to the Closing Date;
(d)    all Cash payments of interest received on Defaulted Collateral Interests;
(e)    any principal payments received in cash by the Issuer on any asset held by a Permitted Subsidiary;
(f)    any Loss Value Payment received by the Issuer from the Seller;
(g)    Cash and Eligible Investments contributed by the Retention Holder or an affiliate thereof, so long as the Retention Holder or an affiliate that is 100% owned by BRSP Sub-REIT and a “disregarded entity” for U.S. federal income tax purposes continues to hold 100% of the Preferred Shares, pursuant to the terms of this Indenture and designated as “Principal Proceeds” by the Retention Holder or such affiliate; and
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(h)    Cash and Eligible Investments transferred from the Reinvestment Account to the Payment Account pursuant to Section 10.2;
provided that Principal Proceeds will not include (A) any Nonrecoverable Interest Advances that were not previously reimbursed to the Advancing Agent or the Backup Advancing Agent from Interest Proceeds, (B) any amounts paid to the Servicer or Special Servicer pursuant to the terms of the Servicing Agreement out of amounts that would otherwise be Principal Proceeds or (C) any proceeds from the Excepted Property.
Priority of Payments”: The meaning specified in Section 11.1(a).
Privileged Person”: Any of the following: the Placement Agents, the Servicer, the Special Servicer, the Trustee, the Paying Agent, the Note Administrator, the Seller, the Collateral Manager, the Advancing Agent, the Issuer, any person who provides the Note Administrator with an Investor Certification (provided that access to information provided by the Note Administrator to any Person who provides the Note Administrator with an Investor Certification in substantially the form set forth in Exhibit Q-2 shall be limited to the Monthly Report) and any Rating Agency or other NRSRO that delivers an NRSRO certification to the Note Administrator (which Investor Certification and NRSRO certification may be submitted electronically by means of the Note Administrator’s website). Any Noteholder who notes on its Investor Certification that it is a borrower, an agent or affiliate of a borrower, or an investment advisor to a borrower, will not be treated as a Privileged Person and will be entitled to access only the Monthly Report.
Proceeding”: Any suit in equity, action at law or other judicial or administrative proceeding.
QIB”: A “qualified institutional buyer” as defined in Rule 144A.
Qualified Purchaser”: A “qualified purchaser” within the meaning of Section 2(a)(51) of the 1940 Act or an entity owned exclusively by one or more such “qualified purchasers.”
Qualified REIT Subsidiary”: A corporation that, for U.S. federal tax purposes, is wholly-owned by a real estate investment trust under Section 856(i)(2) of the Code.
Rating Agencies”: Moody’s and DBRS Morningstar and any successor thereto, or, with respect to the Collateral generally, if at any time Moody’s or DBRS Morningstar or any such successor ceases to provide rating services with respect to the Notes or certificates similar to the Notes, any other NRSRO selected by the Issuer and reasonably satisfactory to a Majority of the Notes voting as a single Class.
Rating Agency Condition”: A condition that is satisfied if:
(a)    the party required to satisfy the Rating Agency Condition (the “Requesting Party”) has made a written request to a Rating Agency for a No Downgrade Confirmation; and
(b)    any one of the following has occurred:
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(i)    a No Downgrade Confirmation has been received; or
(ii)    (1)    within ten (10) Business Days of such request being sent to such Rating Agency, such Rating Agency has not replied to such request or has responded in a manner that indicates that such Rating Agency is neither reviewing such request nor waiving the requirement for confirmation;
(2)    the Requesting Party has confirmed that such Rating Agency has received the confirmation request;
(3)    the Requesting Party promptly requests the No Downgrade Confirmation a second time; and
(4)    there is no response to either confirmation request within five (5) Business Days of such second request.
Rating Agency Test Modification”: The meaning specified in Section 12.4.
Record Date”: With respect to any Holder and any Payment Date, the close of business on the Business Day immediately preceding such Payment Date, provided that the Record Date with respect to the first Payment Date shall be the Closing Date.
Redemption Date”: Any Payment Date specified for a redemption of the Securities pursuant to Section 9.1.
Redemption Date Statement”: The meaning specified in Section 10.9(d).
Redemption Price”: The Redemption Price of each Class of Notes or the Preferred Shares, as applicable, on a Redemption Date will be calculated as follows:
Class A Notes. The redemption price for the Class A Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class A Notes to be redeemed, together with the Class A Interest Distribution Amount (plus any Class A Defaulted Interest Amount) due on the applicable Redemption Date;
Class A-S Notes. The redemption price for the Class A-S Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class A-S Notes to be redeemed, together with the Class A-S Interest Distribution Amount (plus any Class A-S Defaulted Interest Amount) due on the applicable Redemption Date.
Class B Notes. The redemption price for the Class B Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class B Notes to be redeemed, together with the Class B Interest Distribution Amount (plus any Class B Defaulted Interest Amount) due on the applicable Redemption Date;
Class C Notes. The redemption price for the Class C Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class C
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Notes (including any Class C Deferred Interest) to be redeemed, together with the Class C Interest Distribution Amount (plus any Class C Defaulted Interest Amount) due on the applicable Redemption Date;
Class D Notes. The redemption price for the Class D Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class D Notes (including any Class D Deferred Interest) to be redeemed, together with the Class D Interest Distribution Amount (plus any Class D Defaulted Interest Amount) due on the applicable Redemption Date;
Class E Notes. The redemption price for the Class E Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class E Notes (including any Class E Deferred Interest) to be redeemed, together with the Class E Interest Distribution Amount (plus any Class E Defaulted Interest Amount) due on the applicable Redemption Date;
Class F Notes. The redemption price for the Class F Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class F Notes (including any Class F Deferred Interest) to be redeemed, together with the Class F Interest Distribution Amount (plus any Class F Defaulted Interest Amount) due on the applicable Redemption Date;
Class F-E Notes. The redemption price for the Class F-E Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class F-E Notes (including any Class F-E Deferred Interest) to be redeemed, together with the Class F-E Interest Distribution Amount (plus any Class F-E Defaulted Interest Amount) due on the applicable Redemption Date;
Class F-X Notes. The redemption price for the Class F-X Notes will be calculated on the related Determination Date and will equal the Class F-X Interest Distribution Amount (plus any Class F-X Defaulted Interest Amount) due on the applicable Redemption Date;
Class G Notes. The redemption price for the Class G Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class G Notes (including any Class G Deferred Interest) to be redeemed, together with the Class G Interest Distribution Amount (plus any Class G Defaulted Interest Amount) due on the applicable Redemption Date;
Class G-E Notes. The redemption price for the Class G-E Notes will be calculated on the related Determination Date and will equal the Aggregate Outstanding Amount of the Class G-E Notes (including any Class G-E Deferred Interest) to be redeemed, together with the Class G-E Interest Distribution Amount (plus any Class G-E Defaulted Interest Amount) due on the applicable Redemption Date; and
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Class G-X Notes. The redemption price for the Class G-X Notes will be calculated on the related Determination Date and will equal the Class G-X Interest Distribution Amount (plus any Class G-X Defaulted Interest Amount) due on the applicable Redemption Date.
Preferred Shares. The redemption price for the Preferred Shares will be calculated on the related Determination Date and will be equal to the sum of all net proceeds from the sale of the Collateral in accordance with Article 12 and Cash (other than the Issuer’s rights, title and interest in the property described in clause (i) of the definition of “Excepted Property”), if any, remaining after payment of all amounts and expenses, including payments made in respect of the Notes, described under clauses (1) through (19) of Section 11.1(a)(i) and clauses (1) through (17) of Section 11.1(a)(ii); provided that if there are no such net proceeds or Cash remaining, the redemption price for the Preferred Shares shall be equal to $0.
Reference Time”: With respect to any determination of the Benchmark, (a) if the Benchmark is LIBOR, 11:00 a.m. (London time) on the Benchmark Determination Date and (b) if the Benchmark is not LIBOR, the time on the Benchmark Determination Date determined by the Designated Transaction Representative in accordance with the Benchmark Replacement Conforming Changes.
Registered”: With respect to any debt obligation, a debt obligation that is issued after July 18, 1984, and that is in registered form for purposes of the Code.
Registered Office Agreement” Terms and Conditions for the Provision of Registered Office Services by MaplesFS Limited (Structured Finance – Cayman Company) as approved and agreed by resolution of the Issuer’s board of directors.
Regulation S”: Regulation S under the Securities Act.
Regulation S Global Note”: The meaning specified in Section 2.2(b)(iii).
Reimbursement Interest”: Interest accrued on the amount of any Interest Advance made by the Advancing Agent or the Backup Advancing Agent for so long as it is outstanding, at the Reimbursement Rate, which Reimbursement Interest is hereby waived by the Advancing Agent for so long as (i) the Advancing Agent is BRSP Advancing or any of its Affiliates and (ii) any of its Affiliates owns the Preferred Shares.
Reimbursement Rate”: A rate per annum equal to the “prime rate” as published in the “Money Rates” section of The Wall Street Journal, as such “prime rate” may change from time to time. If more than one “prime rate” is published in The Wall Street Journal for a day, the average of such “prime rates” will be used, and such average will be rounded up to the nearest one-eighth of one percent (0.125%). If the “prime rate” contained in The Wall Street Journal is not readily ascertainable, the Collateral Manager will select an equivalent publication that publishes such “prime rate,” and if such “prime rates” are no longer generally published or are limited, regulated or administered by a governmental authority or quasigovernmental body, then the Collateral Manager will select, in its reasonable discretion, a comparable interest rate index.
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Reinvestment Account”: The account established by the Note Administrator pursuant to Section 10.2.
Reinvestment Collateral Interest”: Any Collateral Interest acquired by the Issuer during the Reinvestment Period (and up to 60 days thereafter to the extent necessary to acquire Reinvestment Collateral Interests pursuant to binding commitments entered into during the Reinvestment Period using Principal Proceeds received on, before or after the last day of the Reinvestment Period) with Principal Proceeds from the Collateral Interests (or any Cash contributed by the Preferred Shareholders to the Issuer) and that satisfies the Eligibility Criteria, the Acquisition Criteria and the Acquisition and Disposition Requirements.
Reinvestment Period”: The period beginning on the Closing Date and ending on and including the first to occur of any of the following events or dates: (a) the end of the Due Period related to the Payment Date occurring in July 2023; (b) the end of the Due Period related to the Payment Date on which all of the Securities are redeemed as described herein under Section 9.1; and (c) the date on which an Event of Default has occurred and is continuing.
REIT”: A “real estate investment trust” under the Code.
Relevant Governmental Body”: The Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by any of the foregoing, or any successor thereto designated by the foregoing.
Remittance Date”: The meaning specified in the Servicing Agreement.
REO Property”: The meaning specified in the Servicing Agreement.
Repurchase Request”: The meaning specified in Section 7.17.
Retail Property”: A real property comprised (wholly or partially) of retail space (including mixed use property) as to which the majority of the underwritten revenue is from retail space.
Retained Interest”: The meaning specified in the applicable Collateral Interest Purchase Agreement.
Retained Securities”: 100% of the Class F Notes, the Class G Notes, and related MASCOT Notes for which the Class F Notes or the Class G Notes are exchanged and the Preferred Shares.
Retention Holder”: BRSP 2021-FL1 DRE, LLC, a wholly-owned subsidiary of BRSP Sub-REIT.
Rule 144A”: Rule 144A under the Securities Act.
Rule 144A Global Note”: The meaning specified in Section 2.2(b)(i).
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Rule 144A Information”: The meaning specified in Section 7.13.
Rule 17g-5”: The meaning specified in Section 14.13(a).
Sale”: The meaning specified in Section 5.17(a).
Sale Proceeds”: All proceeds (including accrued interest) received with respect to Collateral Interests and Eligible Investments as a result of sales of such Collateral Interests and Eligible Investments, sales in connection with the exercise of a purchase option by a mezzanine lender, and sales in connection with a repurchase for a Material Breach, a Material Document Defect or a Combined Loan Repurchase Event, in each case net of any reasonable out-of-pocket expenses of the Collateral Manager, the Trustee, the Custodian, the Note Administrator, or the Servicer under the Servicing Agreement in connection with any such sale.
SEC”: The Securities and Exchange Commission.
Secured Parties”: Collectively, the Collateral Manager, the Trustee, the Custodian, the Note Administrator and the holders of the Offered Notes, each as their interests appear in applicable Transaction Documents.
Securities”: Collectively, the Notes and the Preferred Shares.
Securities Account”: The meaning specified in Section 8-501(a) of the UCC.
Securities Account Control Agreement”: The meaning specified in Section 3.3(b).
Securities Act”: The Securities Act of 1933, as amended.
Securities Intermediary”: The meaning specified in Section 3.3(b).
Securitization Sponsor”: BrightSpire Capital Operating Company, LLC (f/k/a Credit RE Operating Company, LLC), a Delaware limited liability company.
Security”: Any Note or Preferred Share or, collectively, the Notes and Preferred Shares, as the context may require.
Security Entitlement”: The meaning specified in Section 8-102(a)(17) of the UCC.
Segregated Liquidity”: The meaning specified in the Servicing Agreement.
Self-Storage Property”: A real property comprised (wholly or partially) of self-storage rental units (including mixed use property) as to which the majority of the underwritten revenue is from self-storage rental units.
Seller”: BRSP 2021-FL1 Funding, LLC, a Delaware limited liability company, and its successors in interest, solely in its capacity as Seller.
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Senior AB Pari Passu Participation”: A participation interest (or an A Note) in an Underlying Commercial Real Estate Loan pursuant to a participation agreement (or intercreditor agreement) in which the interest acquired by the Issuer is senior to one or more Junior Participations but is pari passu with one or more other senior pari passu participation interests that are each Non-Acquired Participations and which each are the senior-most interest in such Underlying Commercial Real Estate Loan.
Senior AB Participation”: A participation interest (or an A Note) in an Underlying Commercial Real Estate Loan pursuant to a participation agreement (or intercreditor agreement) in which the interest acquired by the Issuer is senior to one or more Junior Participations.
Senior Pari Passu Participation”: A participation interest (or an A Note) in an Underlying Commercial Real Estate Loan pursuant to a participation agreement (or intercreditor agreement) in which the interest acquired by the Issuer is pari passu with one or more other senior pari passu participation interests that are each Non-Acquired Participations and which each are the senior-most interest in such Underlying Commercial Real Estate Loan.
Senior Participation”: A Senior AB Participation, a Senior AB Pari Passu Participation or a Senior Pari Passu Participation.
Sensitive Asset”: (a) a Collateral Interest, or a portion thereof or (b) a real property or other interest (including, without limitation, an interest in real property) resulting from the conversion, exchange, other modification or exercise of remedies with respect to a Collateral Interest or portion thereof, in either case, as to which the Collateral Manager has determined, based on an Opinion of Counsel (independent of the Collateral Manager), could give rise to material liability of the Issuer (including liability for taxes) if held directly by the Issuer.
Servicer”: KeyBank National Association, a national banking association, solely in its capacity as servicer under the Servicing Agreement, together with its permitted successors and assigns or any successor Person that shall have become the servicer pursuant to the appropriate provisions of the Servicing Agreement.
Servicing Accounts”: The Escrow Accounts, the Collection Account, the Participated Loan Collection Account, the REO Accounts and the Cash Collateral Accounts, each as established under and defined in the Servicing Agreement.
Servicing Advances”: The meaning specified in the Servicing Agreement.
Servicing Agreement”: The Servicing Agreement, dated as of the Closing Date, by and among the Issuer, the Trustee, the Collateral Manager, the Note Administrator, the Servicer, the Special Servicer and the Advancing Agent, as amended, supplemented or otherwise modified from time to time in accordance with its terms.
Servicing Standard”: The meaning specified in the Servicing Agreement.
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Share Registrar”: MaplesFS Limited, unless a successor Person shall have become the Share Registrar pursuant to the applicable provisions of the Preferred Share Paying Agency Agreement, and thereafter “Share Registrar” shall mean such successor Person.
Signature Law”: The meaning specified in Section 14.11.
SOFR”: With respect to any calendar day, the secured overnight financing rate published for such day time by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.
Special Servicer”: BrightSpire Capital Asset Management, LLC (f/k/a Colony Capital AMC OPCO, LLC), a Delaware limited liability company, solely in its capacity as special servicer under the Servicing Agreement, together with its permitted successors and assigns or any successor Person that shall have become the special servicer pursuant to the appropriate provisions of the Servicing Agreement.
Special Servicing Fee”: The meaning specified in the Servicing Agreement.
Specially Serviced Loan”: The meaning specified in the Servicing Agreement.
Specified Person”: The meaning specified in Section 2.6.
Stated Maturity Date”: The Payment Date in August 2038.
Student Housing Property” A Multi-Family Property as to which the majority of the underwritten revenue is from student housing.
Successful Auction”: Either (a) an auction that is conducted in accordance with the provisions specified in this Indenture, which includes the requirement that the aggregate cash purchase price for all the Collateral Interests, together with the balance of all Eligible Investments and cash in the Payment Account, will be at least equal to the Total Redemption Price or (b) the purchase of all of the Collateral Interests by the Preferred Shareholder for a price that, together with the balance of all Eligible Investments and cash in the Payment Account, is equal to the Total Redemption Price.
Supermajority”: With respect to (a) any Class of Notes, the Holders of at least 66⅔% of the Aggregate Outstanding Amount of the Notes of such Class and (b) with respect to the Preferred Shares, the Holders of at least 66⅔% of the aggregate Notional Amount of the Preferred Shares.
Tax Event”: (a) Any borrower is, or on the next scheduled payment date under any Collateral Interest, will be, required to deduct or withhold from any payment under any Collateral Interest to the Issuer for or on account of any tax for whatever reason and such borrower is not required to pay to the Issuer such additional amount as is necessary to ensure that the net amount actually received by the Issuer (free and clear of taxes, whether assessed against such borrower or the Issuer) will equal the full amount that the Issuer would have received had
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no such deduction or withholding been required, (b) any jurisdiction imposes net income, profits, or similar tax on the Issuer or (c) the Issuer fails to maintain its status as a Qualified REIT Subsidiary or other disregarded entity of a REIT and is not a foreign corporation that is not engaged in a trade or business in the United States for U.S. federal income tax purposes.
Tax Materiality Condition”: The condition that will be satisfied if either (a) as a result of the occurrence of a Tax Event, a tax or taxes are imposed on the Issuer or withheld from payments to the Issuer and with respect to which the Issuer receives less than the full amount that the Issuer would have received had no such deduction occurred and such amount exceeds, in the aggregate, $1,000,000 during any twelve (12)-month period or (b) the Issuer fails to maintain its status as a Qualified REIT Subsidiary or other disregarded entity of a REIT and is not a foreign corporation that is not engaged in a trade or business in the United States for U.S. federal income tax purposes.
Tax Redemption”: The meaning specified in Section 9.1(b).
Term SOFR”: The forward-looking term rate for the applicable Corresponding Tenor based on SOFR that has been selected, endorsed or recommended by the Relevant Governmental Body.
Total Redemption Price”: The amount equal to funds sufficient to pay all amounts and expenses described under clauses (1) through (4) of Section 11.1(a)(i) (without regard to any cap contained therein) and to redeem all Notes at their applicable Redemption Prices and any fees accrued and unpaid to the Servicer and the Special Servicer under the Servicing Agreement.
Transaction Documents”: This Indenture, the Collateral Management Agreement, the Preferred Share Paying Agency Agreement, the Placement Agreement, the Collateral Interest Purchase Agreement, the EU/UK Risk Retention Agreement, the Company Administration Agreement, the Registered Office Agreement, the AML Services Agreement, the Participation Agreements, the Amended Participation Agreements, Future Funding Agreement, the Securities Account Control Agreement, the Future Funding Account Control Agreement and the Servicing Agreement.
Transfer Agent”: The Person or Persons, which may be the Issuer, authorized by the Issuer to exchange or register the transfer of Notes in its capacity as Transfer Agent.
Treasury Regulations”: Temporary or final regulations promulgated under the Code by the United States Treasury Department.
Trust Officer”: When used with respect to (a) the Trustee, any officer of the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture and also, with respect to a particular matter, any other officer to whom such matter is referred because such officer’s knowledge of and familiarity with the particular subject and (b) the Note Administrator, any officer of the Corporate Trust Services group of the Note Administrator with direct responsibility for the administration of this Indenture and also, with respect to a particular
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matter, any other officer to whom a particular matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
Trustee”: Wilmington Trust, National Association, a national banking association, solely in its capacity as trustee hereunder, unless a successor Person shall have become the Trustee pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean such successor Person.
Two Quarter Future Advance Estimate”: The meaning specified in the Servicing Agreement.
UCC”: The applicable Uniform Commercial Code.
UK Securitization Laws”: The UK Securitization Regulation, together with any supplementary regulatory technical standards, implementing standards and any official guidance published in relation thereto by the UK Financial Conduct Authority and/or the UK Prudential Regulation Authority, and any implementing laws or regulations, each as in force on the Closing Date.
UK Securitization Regulation”: EU Securitization Regulation (which forms part of UK domestic law by virtue of the EUWA, as amended by the Securitization (Amendment) (EU Exit) Regulations 2019 of the United Kingdom).
Unadjusted Benchmark Replacement”: The Benchmark Replacement excluding the applicable Benchmark Replacement Adjustment.
Underlying Commercial Real Estate Loan”: With respect to any Collateral Interest that is a Participation, the Commercial Real Estate Loan in which such Participation represents a participation interest.
United States” and “U.S.”: The United States of America, including any state and any territory or possession administered thereby.
Unscheduled Principal Payments”: Any proceeds received by the Issuer from an unscheduled prepayment or redemption (in whole but not in part) by the obligor of a Collateral Interest prior to the stated maturity date of such Collateral Interest.
Updated Appraisal”: The meaning specified in the Servicing Agreement.
U.S. Person”: The meaning specified in Regulation S.
U/W Stabilized NCF DSCR”: With respect to any Collateral Interest, the ratio, as calculated by the Collateral Manager in accordance with the Collateral Management Standard, of (a) the “stabilized” annual net Cash flow generated from the related Mortgaged Property before interest, depreciation and amortization, based on the stabilized underwriting, which may include the completion of certain proposed capital expenditures and the realization of stabilized occupancy and/or rents to (b) the annual Debt Service. In determining U/W Stabilized NCF
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DSCR for any Collateral Interest that is a Senior Participation, the calculation of U/W Stabilized NCF DSCR will take into account the annual Debt Service due on the Senior Participation being acquired by the Issuer and the related Non-Acquired Participation(s) (assuming fully funded) or related note also secured by the related Mortgaged Property or Properties, as applicable, that is senior or pari passu in right to the Senior Participation being acquired by the Issuer but not any Non-Acquired Participation(s) or related note also secured by the related Mortgaged Property or Properties, as applicable, that is junior in right to the Senior Participation being acquired by the Issuer. In determining the U/W Stabilized NCF DSCR for any Collateral Interest that is cross-collateralized with one or more other Collateral Interests, the U/W Stabilized NCF DSCR will be calculated with respect to the cross-collateralized group in the aggregate.
Weighted Average Life”: As of any Measurement Date with respect to the Collateral Interests (other than Defaulted Collateral Interests), the number obtained by (a) summing the products obtained by multiplying (i) the Average Life at such time of each Collateral Interest (other than Defaulted Collateral Interests) by (ii) the outstanding Principal Balance of such Collateral Interest and (b) dividing such sum by the aggregate Principal Balance at such time of all Collateral Interests (other than Defaulted Collateral Interests), where “Average Life” means, on any Measurement Date with respect to any Collateral Interest (other than a Defaulted Collateral Interest), the quotient obtained by the Collateral Manager by dividing (1) the sum of the products of (A) the number of years (rounded to the nearest one tenth thereof) from such Measurement Date to the respective dates of each successive expected distribution of principal of such Collateral Interest and (B) the respective amounts of such expected distributions of principal by (2) the sum of all successive expected distributions of principal on such Collateral Interest.
Weighted Average Spread”: As of any date of determination, the number obtained (rounded up to the next 0.001%), by (a) summing the products obtained by multiplying (i) with respect to any Collateral Interest (other than a Defaulted Collateral Interest), the greater of (1) the current stated spread above the Benchmark (net of any servicing fees and expenses) at which interest accrues on each such Collateral Interest and (2) if such Collateral Interest provides for a minimum interest rate or fixed interest rate payable thereunder, the excess, if any, of the minimum interest rate or fixed interest rate applicable to such Collateral Interest (net of any servicing fees and expenses) over the Benchmark by (ii) the Principal Balance of such Collateral Interest as of such date, and (b) dividing such sum by the aggregate Principal Balance of all Collateral Interests (excluding all Defaulted Collateral Interests).
WF”: Wells Fargo Securities, LLC.
Section 1.2    Interest Calculation Convention. All calculations of interest hereunder that are made with respect to the Notes shall be made on the basis of the actual number of days during the related Interest Accrual Period divided by three hundred and sixty (360).
Section 1.3    Rounding Convention. Unless otherwise specified herein, test calculations that are evaluated as a percentage shall be rounded to the nearest ten thousandth of a percentage point and test calculations that are evaluated as a number or decimal shall be rounded to the nearest one hundredth of a percentage point.
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ARTICLE 2

THE NOTES
Section 2.1    Forms Generally. The Notes and the Authenticating Agent’s certificate of authentication thereon (the “Certificate of Authentication”) shall be in substantially the forms required by this Article 2, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be consistent herewith, determined by the Authorized Officers of the Issuer and the Co-Issuer, executing such Notes as evidenced by their execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
Section 2.2    Forms of Notes and Certificate of Authentication.
(a)    Form. The form of each Class of the Notes, including the Certificate of Authentication, shall be in substantially the forms set forth in Exhibits A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2, E-1, E-2, F-1, F-2, G-1, G-2, G-3, G-4, G-5, G-6, H-1, H-2, H-3, H-4, H-5 and H-6.
(b)    Global Notes and Definitive Notes.
(i)    The Notes initially offered and sold in the United States to (or to U.S. Persons who are) QIBs may be represented by one or more permanent global notes in definitive, fully registered form without interest coupons with the applicable legend set forth in Exhibits A-1, B-1, C-1, D-1, E-1, F-1, G-1, G-3, G-5, H-1, H-3 and H-5 added to the form of such Notes (each, a “Rule 144A Global Note”), which shall be registered in the name of Cede & Co., as the nominee of the Depository and deposited with the Note Administrator, as custodian for the Depository, duly executed by the Issuer and, with respect to the Offered Notes, the Co-Issuer and authenticated by the Authenticating Agent as hereinafter provided. The aggregate principal amount of the Rule 144A Global Notes may from time to time be increased or decreased by adjustments made on the records of the Note Administrator or the Depository or its nominee, as the case may be, as hereinafter provided.
(ii)    The Notes initially offered and sold in the United States to (or to U.S. Persons who are) IAIs shall be, and the Notes offered and sold in the United States to (or to U.S. Persons who are) QIBs may be, issued in definitive form, registered in the name of the legal or beneficial owner thereof attached without interest coupons with the applicable legend set forth in Exhibits A-2, B-2, C-2, D-2, E-2, F-2, G-2, G-4, G-6, H-2, H-4 and H-6 added to the form of such Notes (each, a “Definitive Note”), which shall be duly executed by the Issuer and, with respect to the Offered Notes, the Co-Issuer, and authenticated by the Authenticating Agent as hereinafter provided. The aggregate principal amount of the Definitive Notes may from time to time be increased or decreased
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by adjustments made on the records of the Note Administrator or the Depository or its nominee, as the case may be, as hereinafter provided.
(iii)    The Notes initially sold in offshore transactions in reliance on Regulation S shall be represented by one or more permanent global notes in definitive, fully registered form without interest coupons with the applicable legend set forth in Exhibits A-1, B-1, C-1, D-1, E-1, F-1, G-1, G-3, G-5, H-1, H-3 and H-5 added to the form of such Notes (each, a “Regulation S Global Note”), which shall be deposited on behalf of the subscribers for such Notes represented thereby with the Note Administrator as custodian for the Depository and registered in the name of a nominee of the Depository for the respective accounts of Euroclear and Clearstream, Luxembourg or their respective depositories, duly executed by the Issuer and, with respect to the Offered Notes, the Co-Issuer, and authenticated by the Authenticating Agent as hereinafter provided. The aggregate principal amount of the Regulation S Global Notes may from time to time be increased or decreased by adjustments made on the records of the Note Administrator or the Depository or its nominee, as the case may be, as hereinafter provided.
(c)    Book-Entry Provisions. This Section 2.2(c) shall apply only to Global Notes deposited with or on behalf of the Depository.
Each of the Issuer and Co-Issuer shall execute and the Authenticating Agent shall, in accordance with this Section 2.2(c), authenticate and deliver initially one or more Global Notes that shall be (i) registered in the name of the nominee of the Depository for such Global Note or Global Notes and (ii) delivered by the Note Administrator to such Depository or pursuant to such Depository’s instructions or held by the Note Administrator’s agent as custodian for the Depository.
Agent Members shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Note Administrator, as custodian for the Depository or under the Global Note, and the Depository may be treated by the Issuer, the Co-Issuer, the Trustee, the Note Administrator, the Servicer and the Special Servicer and any of their respective agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Co-Issuer, the Trustee, the Note Administrator, the Servicer and the Special Servicer or any of their respective agents, from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Global Note.
(d)    Delivery of Definitive Notes in Lieu of Global Notes. Except as provided in Section 2.10, owners of beneficial interests in a Class of Global Notes shall not be entitled to receive physical delivery of a Definitive Note.
Section 2.3    Authorized Amount; Stated Maturity Date; and Denominations.
(a)    The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is limited to $744,000,000, except for (i) Notes authenticated and delivered
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upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 2.5, 2.6 or 8.5 and (ii) any Deferred Interest.
Such Notes shall be divided into eight (8) Classes having designations and original principal amounts as follows:
DesignationOriginal Principal Amount
Class A Senior Secured Floating Rate Notes Due 2038$428,000,000
Class A-S Second Priority Secured Floating Rate Notes Due 2038$88,000,000
Class B Third Priority Secured Floating Rate Notes Due 2038$42,000,000
Class C Fourth Priority Secured Floating Rate Notes Due 2038$50,000,000
Class D Fifth Priority Secured Floating Rate Notes Due 2038$50,000,000
Class E Sixth Priority Secured Floating Rate Notes Due 2038$12,000,000
Class F Seventh Priority Floating Rate Notes Due 2038(1)    
$42,000,000
Class G Eighth Priority Floating Rate Notes Due 2038(1)    
$32,000,000
(1)    At any time on or after the Initial MASCOT Note Issuance Date, the Class F Notes and the Class G Notes are exchangeable notes (the “Exchangeable Notes”) and are exchangeable for proportionate interests in the related MASCOT Notes as set forth in Section 2.16. All or a portion of (i)  the Class F Notes may be exchanged for proportionate interests in the Class F-E Notes (the “Class F-E Notes”) and the Class F-X Notes (the “Class F-X Notes”) and (ii) the Class G Notes may be exchanged for proportionate interests in the Class G-E Notes (the “Class G-E Notes” and, collectively with the Class F-E Notes, the “MASCOT P&I Notes”) and the Class G-X Notes (the “Class G-X Notes” and, collectively with the Class F-X Notes, the “MASCOT Interest Only Notes,” and together with the MASCOT P&I Notes, the “MASCOT Notes”), and vice versa.
(b)    The Notes shall be issuable in minimum denominations of $100,000 and integral multiples of $500 in excess thereof (plus any residual amount).
Section 2.4    Execution, Authentication, Delivery and Dating. The Offered Notes shall be executed on behalf of the Issuer and the Co-Issuer by an Authorized Officer of the Issuer and the Co-Issuer, respectively. The Class F Notes, the Class F-E Notes, the Class F-X Notes, the Class G Notes, the Class G-E Notes and the Class G-X Notes shall be executed on behalf of the Issuer by an Authorized Officer of the Issuer. The signature of such Authorized Officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were at any time the Authorized Officers of the Issuer and, with respect to the Offered Notes, the Co-Issuer shall bind the Issuer or the Co-Issuer, as the case may be, notwithstanding the fact that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of issuance of such Notes.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer and the Co-Issuer may deliver Offered Notes executed by the Issuer and the Co-Issuer, and the Issuer may deliver Class F Notes, Class F-E Notes, Class F-X Notes, Class G Notes, Class G-E Notes and Class G-X Notes executed by the Issuer, to the Authenticating Agent for
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authentication and the Authenticating Agent, upon Issuer Order, shall authenticate and deliver such Notes as provided in this Indenture and not otherwise.
Each Note authenticated and delivered by the Authenticating Agent upon Issuer Order on the Closing Date shall be dated as of the Closing Date. All other Notes that are authenticated after the Closing Date for any other purpose under this Indenture shall be dated the date of their authentication.
Notes issued upon transfer, exchange or replacement of other Notes shall be issued in authorized denominations reflecting the original aggregate principal amount of the Notes so transferred, exchanged or replaced, but shall represent only the current outstanding principal amount of the Notes so transferred, exchanged or replaced. In the event that any Note is divided into more than one Note in accordance with this Article 2, the original principal amount of such Note shall be proportionately divided among the Notes delivered in exchange therefor and shall be deemed to be the original aggregate principal amount of such subsequently issued Notes.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a Certificate of Authentication, substantially in the form provided for herein, executed by the Note Administrator or by the Authenticating Agent by the manual signature of one of their Authorized Officers, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
Section 2.5    Registration, Registration of Transfer and Exchange.
(a)    The Issuer and, with respect to the Offered Notes, the Co-Issuer shall cause to be kept a register (the “Notes Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer and the Co-Issuer shall provide for the registration of Notes and the registration of transfers and exchanges of Notes. The Note Administrator is hereby initially appointed as the notes registrar (in such capacity, the “Notes Registrar”) for the purpose of maintaining the Notes Registrar and registering Notes and transfers and exchanges of such Notes with respect to the Notes Register kept in the United States as herein provided. Upon any resignation or removal of the Notes Registrar, the Issuer and the Co-Issuer shall promptly appoint a successor or, in the absence of such appointment, assume the duties of Notes Registrar.
    The name and address of each Noteholder and the principal amounts and stated interest of each such Noteholder in its Notes shall be recorded by the Notes Registrar in the Notes Register. For the avoidance of doubt, the Notes Register is intended to be and shall be maintained so as to cause the Notes to be considered issued in registered form for U.S. federal income tax purposes.
If a Person other than the Note Administrator is appointed by the Issuer and the Co-Issuer as Notes Registrar, the Issuer and the Co-Issuer shall give the Note Administrator prompt written notice of the appointment of a successor Notes Registrar and of the location, and any change in the location, of the Notes Register, and the Note Administrator shall have the right to inspect the Notes Register at all reasonable times and to obtain copies thereof and the Note Administrator shall have the right to rely upon a certificate executed on behalf of the Notes Registrar by an
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Authorized Officer thereof as to the names and addresses of the Holders of the Notes and the principal amounts and numbers of such Notes. In addition, the Notes Registrar shall be required, within one (1) Business Day of each Record Date, to provide the Note Administrator with a copy of the Notes Registrar in the format required by, and with all accompanying information regarding the Noteholders as may reasonably be required by the Note Administrator.
Subject to this Section 2.5, upon surrender for registration of transfer of any Notes at the office or agency of the Issuer to be maintained as provided in Section 7.2, the Issuer and, with respect to the Offered Notes, the Co-Issuer shall execute, and the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denomination and of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for Notes of like terms, in any authorized denominations and of like aggregate principal amount, upon surrender of the Notes to be exchanged at the office or agency of the Issuer to be maintained as provided in Section 7.2. Whenever any Note is surrendered for exchange, the Issuer and, with respect to the Offered Notes, the Co-Issuer shall execute, and the Authenticating Agent shall authenticate and deliver, the Notes that the Holder making the exchange is entitled to receive.
All Notes issued and authenticated upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer and, with respect to the Offered Notes, the Co-Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and, with respect to the Offered Notes, the Co-Issuer, and, in each case, the Notes Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of transfer or exchange of Notes, but the Note Administrator may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
None of the Notes Registrar, the Issuer or the Co-Issuer shall be required (i) to issue, register the transfer of or exchange any Note during a period beginning at the opening of business fifteen (15) days before any selection of Notes to be redeemed and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Note so selected for redemption.
(b)    No Note may be sold or transferred (including, without limitation, by pledge or hypothecation) unless such sale or transfer is exempt from the registration requirements of the Securities Act and is exempt from the registration requirements under applicable securities laws of any state or other jurisdiction.
(c)    No Note may be offered, sold, resold or delivered, within the United States or to, or for the benefit of, U.S. Persons except in accordance with Section 2.5(e) below and in
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accordance with Rule 144A to QIBs or, solely with respect to Definitive Notes, IAIs or QIBs, in each case, who are also Qualified Purchasers purchasing for their own account or for the accounts of one or more QIBs or IAIs who are also Qualified Purchasers for which the purchaser is acting as fiduciary or agent. The Notes may be offered, sold, resold or delivered, as the case may be, in offshore transactions to non-U.S. Persons in reliance on Regulation S. None of the Issuer, the Co-Issuer, the Note Administrator, the Trustee or any other Person may register the Notes under the Securities Act or the securities laws of any state or other jurisdiction.
(d)    Upon final payment due on the Stated Maturity Date of a Note, the Holder thereof shall present and surrender such Note at the Corporate Trust Office of the Note Administrator or at the office of the Paying Agent (outside the United States if then required by applicable law in the case of a Note in definitive form issued in exchange for a beneficial interest in a Regulation S Global Note pursuant to Section 2.10).
(e)    Transfers of Global Notes. Notwithstanding any provision to the contrary herein, so long as a Global Note remains outstanding and is held by or on behalf of the Depository, transfers of a Global Note, in whole or in part, shall be made only in accordance with Section 2.2(c) and this Section 2.5(e).
(i)    Except as otherwise set forth below, transfers of a Global Note shall be limited to transfers of such Global Note in whole, but not in part, to nominees of the Depository or to a successor of the Depository or such successor’s nominee. Transfers of a Global Note to a Definitive Note may only be made in accordance with Section 2.10.
(ii)    Regulation S Global Note to Rule 144A Global Note or Definitive Note. If a holder of a beneficial interest in a Regulation S Global Note wishes at any time to exchange its interest in such Regulation S Global Note for an interest in the corresponding Rule 144A Global Note or for a Definitive Note or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Rule 144A Global Note or for a Definitive Note, such holder may, subject to the immediately succeeding sentence and the rules and procedures of Euroclear, Clearstream, Luxembourg and/or DTC, as the case may be, exchange or transfer, or cause the exchange or transfer of, such interest for an equivalent beneficial interest in the corresponding Rule 144A Global Note or for a Definitive Note. Upon receipt by the Note Administrator or the Notes Registrar of:
(1)    if the transferee is taking a beneficial interest in a Rule 144A Global Note, instructions from Euroclear, Clearstream, Luxembourg and/or DTC, as the case may be, directing the Notes Registrar to cause to be credited a beneficial interest in the corresponding Rule 144A Global Note in an amount equal to the beneficial interest in such Regulation S Global Note, but not less than the minimum denomination applicable to such holder’s Notes to be exchanged or transferred, such instructions to contain information regarding the participant account with DTC to be credited with such increase and a duly completed certificate in substantially the form set forth in Exhibit I-2; or
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(2)    if the transferee is taking a Definitive Note, a duly completed transfer certificate in substantially the form set forth in Exhibit I-3, certifying that such transferee is an IAI, then the Notes Registrar shall either (x) if the transferee is taking a beneficial interest in a Rule 144A Global Note, approve the instructions at DTC to reduce, or cause to be reduced, the Regulation S Global Note by the aggregate principal amount of the beneficial interest in the Regulation S Global Note to be transferred or exchanged and the Notes Registrar shall instruct DTC, concurrently with such reduction, to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Rule 144A Global Note equal to the reduction in the principal amount of the Regulation S Global Note or (y) if the transferee is taking an interest in a Definitive Note, the Notes Registrar shall record the transfer in the Notes Register in accordance with Section 2.5(a) and, upon execution by the Issuers, the Authenticating Agent shall authenticate and deliver one or more Definitive Notes, as applicable, registered in the names specified in the instructions described above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the interest in the Regulation S Global Note transferred by the transferor).
(iii)    Definitive Note or Rule 144A Global Note to Regulation S Global Note. If a holder of a beneficial interest in a Rule 144A Global Note or a Holder of a Definitive Note wishes at any time to exchange its interest in such Rule 144A Global Note or Definitive Note for an interest in the corresponding Regulation S Global Note, or to transfer its interest in such Rule 144A Global Note or Definitive Note to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Regulation S Global Note, such holder, provided such holder or, in the case of a transfer, the transferee is not a U.S. person and is acquiring such interest in an offshore transaction, may, subject to the immediately succeeding sentence and the rules and procedures of DTC, exchange or transfer, or cause the exchange or transfer of, such interest for an equivalent beneficial interest in the corresponding Regulation S Global Note. Upon receipt by the Note Administrator or the Notes Registrar of:
(1)    instructions given in accordance with DTC’s procedures from an Agent Member directing the Note Administrator or the Notes Registrar to credit or cause to be credited a beneficial interest in the corresponding Regulation S Global Note, but not less than the minimum denomination applicable to such holder’s Notes, in an amount equal to the beneficial interest in the Rule 144A Global Note or Definitive Note to be exchanged or transferred, and in the case of a transfer of Definitive Notes, such Holder’s Definitive Notes properly endorsed for assignment to the transferee;
(2)    a written order given in accordance with DTC’s procedures containing information regarding the participant account of DTC and the Euroclear or Clearstream, Luxembourg account to be credited with such increase;
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(3)    in the case of a transfer of Definitive Notes, a Holder’s Definitive Note properly endorsed for assignment to the transferee; and
(4)    a duly completed certificate in substantially the form set forth in Exhibit I-1, then the Note Administrator or the Notes Registrar shall approve the instructions at DTC to reduce the principal amount of the Rule 144A Global Note (or, in the case of a transfer of Definitive Notes, the Note Administrator or the Notes Registrar shall cancel such Definitive Notes) and to increase the principal amount of the Regulation S Global Note by the aggregate principal amount of the beneficial interest in the Rule 144A Global Note or Definitive Note to be exchanged or transferred, and to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Regulation S Global Note equal to the reduction in the principal amount of the Rule 144A Global Note (or, in the case of a cancellation of Definitive Notes, equal to the principal amount of Definitive Notes so cancelled).
(iv)    Transfer of Rule 144A Global Notes to Definitive Notes. If, in accordance with Section 2.10, a holder of a beneficial interest in a Rule 144A Global Note wishes at any time to exchange its interest in such Rule 144A Global Note for a Definitive Note or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of a Definitive Note in accordance with Section 2.10, such holder may, subject to the immediately succeeding sentence and the rules and procedures of DTC, exchange or transfer, or cause the exchange or transfer of, such interest for a Definitive Note. Upon receipt by the Note Administrator or the Notes Registrar of (1) a duly complete certificate in substantially the form set forth in Exhibit I-3 and (2) appropriate instructions from DTC, if required, the Note Administrator or the Notes Registrar shall approve the instructions at DTC to reduce, or cause to be reduced, the Rule 144A Global Note by the aggregate principal amount of the beneficial interest in the Rule 144A Global Note to be transferred or exchanged, record the transfer in the Notes Register in accordance with Section 2.5(a) and upon execution by the Issuers, the Authenticating Agent shall authenticate and deliver one or more Definitive Notes, registered in the names specified in the instructions described in clause (2) above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the interest in the Rule 144A Global Note transferred by the transferor).
(v)    Transfer of Definitive Notes to Rule 144A Global Notes. If a holder of a Definitive Note wishes at any time to exchange its interest in such Definitive Note for a beneficial interest in a Rule 144A Global Note or to transfer such Definitive Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in a Rule 144A Global Note, such holder may, subject to the immediately succeeding sentence and the rules and procedures of DTC, exchange or transfer, or cause the exchange or transfer of, such Definitive Note for beneficial interest in a Rule 144A Global Note (provided that no IAI may hold an interest in a Rule 144A Global Note). Upon receipt by the Note Administrator or the Notes Registrar of (1) a Holder’s
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Definitive Note properly endorsed for assignment to the transferee; (2) a duly completed certificate in substantially the form set forth in Exhibit I-2; (3) instructions given in accordance with DTC’s procedures from an Agent Member to instruct DTC to cause to be credited a beneficial interest in the Rule 144A Global Notes in an amount equal to the Definitive Notes to be transferred or exchanged; and (4) a written order given in accordance with DTC’s procedures containing information regarding the participant’s account of DTC to be credited with such increase, the Note Administrator or the Notes Registrar shall cancel such Definitive Note in accordance herewith, record the transfer in the Notes Register in accordance with Section 2.5(a) and approve the instructions at DTC, concurrently with such cancellation, to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Rule 144A Global Note equal to the principal amount of the Definitive Note transferred or exchanged.
(vi)    Other Exchanges. In the event that, pursuant to Section 2.10, a Global Note is exchanged for Definitive Notes, such Notes may be exchanged for one another only in accordance with such procedures as are substantially consistent with the provisions above (including certification requirements intended to ensure that such transfers are to a QIB or are to a non-U.S. Person, or otherwise comply with Rule 144A or Regulation S, as the case may be) and as may be from time to time adopted by the Issuer, the Co-Issuer and the Note Administrator.
(f)    Removal of Legend. If Notes are issued upon the transfer, exchange or replacement of Notes bearing the applicable legends set forth in Exhibits A-1, A-2, B-1, B-2, C-1, C-2, D-1, D-2, E-1, E-2, F-1, F-2, G-1, G-2, G-3, G-4, G-5, G-6, H-1, H-2, H-3, H-4, H-5 and H-6, and if a request is made to remove such applicable legend on such Notes, the Notes so issued shall bear such applicable legend, or such applicable legend shall not be removed, as the case may be, unless there is delivered to the Issuer and the Co-Issuer such satisfactory evidence, which may include an Opinion of Counsel of an attorney at law licensed to practice law in the State of New York (and addressed to the Issuer and the Note Administrator), as may be reasonably required by the Issuer and the Co-Issuer, if applicable, to the effect that neither such applicable legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A or Regulation S, as applicable, the 1940 Act or ERISA. So long as the Issuer or the Co-Issuer is relying on an exemption under or promulgated pursuant to the 1940 Act, the Issuer or the Co-Issuer shall not remove that portion of the legend required to maintain an exemption under or promulgated pursuant to the 1940 Act. Upon provision of such satisfactory evidence, as confirmed in writing by the Issuer and the Co-Issuer, if applicable, to the Note Administrator, the Note Administrator, at the direction of the Issuer and the Co-Issuer, if applicable, shall authenticate and deliver Notes that do not bear such applicable legend.
(g)    Each beneficial owner of Regulation S Global Notes shall be deemed to make the representations and agreements set forth in Exhibit I-1.
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(h)    Each beneficial owner of Rule 144A Global Notes shall be deemed to make the representations and agreements set forth in Exhibit I-2.
(i)    Each Holder of Definitive Notes shall make the representations and agreements set forth in the certificate attached as Exhibit I-3.
(j)    Any purported transfer of a Note not in accordance with Section 2.5(a) shall be null and void and shall not be given effect for any purpose hereunder.
(k)    Notwithstanding anything contained in this Indenture to the contrary, neither the Note Administrator nor the Notes Registrar (nor any other Transfer Agent) shall be responsible or liable for compliance with applicable federal or state securities laws (including, without limitation, the Securities Act or Rule 144A or Regulation S promulgated thereunder), the 1940 Act, ERISA or the Code (or any applicable regulations thereunder); provided, however, that if a specified transfer certificate or Opinion of Counsel is required by the express terms of this Section 2.5 to be delivered to the Note Administrator or Notes Registrar prior to registration of transfer of a Note, the Note Administrator and/or Notes Registrar, as applicable, is required to request, as a condition for registering the transfer of the Note, such certificate or Opinion of Counsel and to examine the same to determine whether it conforms on its face to the requirements hereof (and the Note Administrator or Notes Registrar, as the case may be, shall promptly notify the party delivering the same if it determines that such certificate or Opinion of Counsel does not so conform).
(l)    If the Note Administrator has actual knowledge or is notified by the Issuer, the Co-Issuer or the Collateral Manager that (i) a transfer or attempted or purported transfer of any interest in any Note was consummated in compliance with the provisions of this Section 2.5 on the basis of a materially incorrect certification from the transferee or purported transferee, (ii) a transferee failed to deliver to the Note Administrator any certification required to be delivered hereunder or (iii) the holder of any interest in a Note is in breach of any representation or agreement set forth in any certification or any deemed representation or agreement of such holder, the Note Administrator shall not register such attempted or purported transfer and if a transfer has been registered, such transfer shall be absolutely null and void ab initio and shall vest no rights in the purported transferee (such purported transferee, a “Disqualified Transferee”) and the last preceding holder of such interest in such Note that was not a Disqualified Transferee shall be restored to all rights as a Holder thereof retroactively to the date of transfer of such Note by such Holder.
In addition, the Note Administrator may require that the interest in the Note referred to in (i), (ii) or (iii) in the preceding paragraph be transferred to any Person designated by the Issuer or the Collateral Manager at a price determined by the Issuer or the Collateral Manager, based upon its estimation of the prevailing price of such interest and each Holder, by acceptance of an interest in a Note, authorizes the Note Administrator to take such action. In any case, none of the Issuer, the Collateral Manager and the Note Administrator shall be held responsible for any losses that may be incurred as a result of any required transfer under this Section 2.5(l).
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(m)    Each Holder of Notes approves and consents to (i) the purchase of the Closing Date Collateral Interests by the Issuer from the Seller on the Closing Date and (ii) any other transaction between the Issuer and the Collateral Manager or its Affiliates that are permitted under the terms of this Indenture or the Collateral Interest Purchase Agreement.
(n)    As long as any Note is Outstanding, the Retained Securities, any retained or repurchased Notes, the Preferred Shares and the ordinary shares of the Issuer held by BRSP Sub-REIT, the Retention Holder or any other disregarded entity of BRSP Sub-REIT for U.S. federal income tax purposes may not be transferred (whether by means of actual transfer or a transfer of beneficial ownership for U.S. federal income tax purposes), pledged or hypothecated to any other Person (except to an affiliate that is wholly-owned by BRSP Sub-REIT and is disregarded for U.S. federal income tax purposes) unless the Issuer receives a No Entity-Level Tax Opinion (or has previously received a No Trade or Business Opinion).
For the avoidance of doubt, the Indenture Accounts (including income, if any, earned on the investments of funds in such account) will be owned by BRSP Sub-REIT, if the Issuer is wholly-owned by BRSP Sub-REIT, or a subsequent REIT that wholly owns the Issuer, for U.S. federal income tax purposes. The Issuer shall provide to the Note Administrator (i) an IRS Form W-9 or appropriate IRS Form W-8 no later than the Closing Date, and (ii) any additional IRS forms (or updated versions of any previously submitted IRS forms) or other documentation at such time or times required by applicable law or upon the reasonable request of the Note Administrator as may be necessary (x) to reduce or eliminate the imposition of U.S. withholding taxes and (y) to permit the Note Administrator to fulfill its tax reporting obligations under applicable law with respect to the Indenture Accounts or any amounts paid to the Issuer. If any IRS form or other documentation previously delivered becomes obsolete or inaccurate in any respect, Issuer shall timely provide to the Note Administrator accurately updated and complete versions of such IRS forms or other documentation. The Note Administrator shall have no liability to Issuer or any other person in connection with any tax withholding amounts paid or withheld from the Indenture Accounts pursuant to applicable law arising from the Issuer’s failure to timely provide an accurate, correct and complete IRS Form W-9, an appropriate IRS Form W-8 or such other documentation contemplated under this paragraph. For the avoidance of doubt, no funds shall be invested with respect to such Indenture Accounts absent the Note Administrator having first received (i) the requisite written investment direction from the Issuer with respect to the investment of such funds, and (ii) the IRS forms and other documentation required by this paragraph.
Section 2.6    Mutilated, Defaced, Destroyed, Lost or Stolen Note. If (a) any mutilated or defaced Note is surrendered to a Transfer Agent, or if there shall be delivered to the Issuer, the Co-Issuer, the Trustee, the Note Administrator and the relevant Transfer Agent (each, a “Specified Person”) evidence to their reasonable satisfaction of the destruction, loss or theft of any Note, and (b) there is delivered to each Specified Person such security or indemnity as may be required by each Specified Person to save each of them and any agent of any of them harmless, then, in the absence of notice to the Specified Persons that such Note has been acquired by a bona fide purchaser, the Issuer and, with respect to the Offered Notes, the Co-Issuer shall execute and, upon Issuer Request (which Issuer Request shall be deemed to have
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been given upon receipt by the Note Administrator of a Note that has been signed by the Issuer, and the Co-Issuer, if applicable), the Note Administrator shall cause the Authenticating Agent to authenticate and deliver, in lieu of any such mutilated, defaced, destroyed, lost or stolen Note, a new Note, of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner, dated the date of its authentication, bearing interest from the date to which interest has been paid on the mutilated, defaced, destroyed, lost or stolen Note and bearing a number not contemporaneously outstanding.
If, after delivery of such new Note, a bona fide purchaser of the predecessor Note presents for payment, transfer or exchange such predecessor Note, any Specified Person shall be entitled to recover such new Note from the Person to whom it was delivered or any Person taking therefrom, and each Specified Person shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by such Specified Person in connection therewith.
In case any such mutilated, defaced, destroyed, lost or stolen Note has become due and payable, the Issuer and the Co-Issuer, if applicable, in their discretion may, instead of issuing a new Note, pay such Note without requiring surrender thereof except that any mutilated or defaced Note shall be surrendered.
Upon the issuance of any new Note under this Section 2.6, the Issuer and the Co-Issuer, if applicable, may require the payment by the registered Holder thereof of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section 2.6 in lieu of any mutilated, defaced, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer and the Co-Issuer, if applicable, and such new Note shall be entitled, subject to the second paragraph of this Section 2.6, to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section 2.6 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, defaced, destroyed, lost or stolen Notes.
Section 2.7    Payment of Principal and Interest and Other Amounts; Principal and Interest Rights Preserved.
(a)    Each Class of Notes shall accrue interest during each Interest Accrual Period at the Note Interest Rate applicable to such Class and such interest will be payable in arrears on each Payment Date on the Aggregate Outstanding Amount thereof on the first day of the related Interest Accrual Period (after giving effect to payments of principal thereof on such date), except as otherwise set forth below. Payment of interest on each Class of Notes will be subordinated to the payment of interest on each related Class of Notes senior thereto. Interest will cease to accrue on each Note, or in the case of a partial repayment, on such repaid part, from the date of repayment or the Stated Maturity Date unless payment of principal is improperly withheld or
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unless an Event of Default occurs with respect to such payments of principal. To the extent lawful and enforceable, interest on any interest that is not paid when due on the Class A Notes; or, if no Class A Notes are Outstanding, the Notes of the Controlling Class, shall accrue at the Note Interest Rate applicable to such Class until paid as provided herein.
(b)    (i) So long as any of the Class A Notes, the Class A-S Notes or the Class B Notes are outstanding, the Class C Deferred Interest will be deferred and added to the Aggregate Outstanding Amount of the Class C Notes and will not be considered “due and payable” until the Payment Date on which funds are available to pay such Class C Deferred Interest in accordance with the Priority of Payments, (ii) so long as any of the Class A Notes, the Class A-S Notes, the Class B Notes or the Class C Notes are outstanding, the Class D Deferred Interest will be deferred and added to the Aggregate Outstanding Amount of the Class D Notes and will not be considered “due and payable” until the Payment Date on which funds are available to pay such Class D Deferred Interest in accordance with the Priority of Payments, (iii) so long as any of the Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes or the Class D Notes are outstanding, the Class E Deferred Interest will be deferred and added to the Aggregate Outstanding Amount of the Class E Notes and will not be considered “due and payable” until the Payment Date on which funds are available to pay such Class E Deferred Interest in accordance with the Priority of Payments, (iv) so long as any of the Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes or the Class E Notes are outstanding, the Class F Deferred Interest and the Class F-E Deferred Interest will be deferred and added to the Aggregate Outstanding Amount of the Class F Notes or the Class F-E Notes, as applicable, and will not be considered “due and payable” until the Payment Date on which funds are available to pay such Class F Deferred Interest and Class F-E Deferred Interest in accordance with the Priority of Payments and (v) so long as any of the Class A Notes, the Class A-S Notes, the Class B Notes, the Class C Notes, the Class D Notes, the Class E Notes, the Class F Notes, the Class F-E Notes or the Class F-X Notes are outstanding, the Class G Deferred Interest and the Class G-E Deferred Interest will be deferred and added to the Aggregate Outstanding Amount of the Class G Notes of the Class G-E Notes, as applicable, and will not be considered “due and payable” until the Payment Date on which funds are available to pay such Class G Deferred Interest and Class G-E Deferred Interest in accordance with the Priority of Payments. The failure to pay such Class C Deferred Interest, Class D Deferred Interest, Class E Deferred Interest, Class F Deferred Interest, Class F-E Deferred Interest, Class G Deferred Interest or the Class G-E Deferred Interest as a result of the operation of the Priority of Payments will not constitute an Event of Default under this Indenture.
(c)    The principal of each Class of Notes matures at par and is due and payable on the date of the Stated Maturity Date for such Class, unless such principal has been previously repaid or unless the unpaid principal of such Note becomes due and payable at an earlier date by declaration of acceleration, call for redemption or otherwise. Notwithstanding the foregoing, the payment of principal of each Class of Notes may only occur pursuant to the Priority of Payments. The payment of principal on any Note (x) may only occur after each Class more senior thereto is no longer Outstanding and (y) is subordinated to the payment on each Payment Date of the principal due and payable on each Class more senior thereto and certain other amounts in accordance with the Priority of Payments. Payments of principal on any Class of Notes that are
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not paid, in accordance with the Priority of Payments, on any Payment Date (other than the Payment Date which is the Stated Maturity Date (or the earlier date of Maturity) of such Class of Notes or any Redemption Date), because of insufficient funds therefor shall not be considered “due and payable” for purposes of Section 5.1(a) until the Payment Date on which such principal may be paid in accordance with the Priority of Payments or all Classes of Notes most senior thereto with respect to such Class have been paid in full. Payments of principal on the Notes in connection with a Clean-up Call, Tax Redemption, Auction Call Redemption or Optional Redemption will be made in accordance with Section 9.1 and the Priority of Payments.
(d)    As a condition to the payment of principal of and interest on any Note without the imposition of U.S. withholding tax, the Issuer shall require certification acceptable to it to enable the Issuer, the Co-Issuer, the Trustee, the Preferred Share Paying Agent and the Paying Agent to determine their duties and liabilities with respect to any taxes or other charges that they may be required to deduct or withhold from payments in respect of such Security under any present or future law or regulation of the United States or the Cayman Islands or any present or future law or regulation of any political subdivision thereof or taxing authority therein or to comply with any reporting or other requirements under any such law or regulation. Such certification may include U.S. federal income tax forms (such as IRS Form W-8BEN (Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)), Form W-8BEN-E (Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)), Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity or Certain U.S. Branches for United States Tax Withholding and Reporting), IRS Form W-9 (Request for Taxpayer Identification Number and Certification), or IRS Form W-8ECI (Certificate of Foreign Person’s Claim that Income Is Effectively Connected with the Conduct of a Trade or Business in the United States) or any successors to such IRS forms). In addition, each of the Issuer, Co-Issuer, the Trustee, Preferred Share Paying Agent or any Paying Agent may require certification acceptable to it to enable the Issuer to qualify for a reduced rate of withholding in any jurisdiction from or through which the Issuer receives payments on its Collateral and otherwise as may be necessary or desirable to ensure compliance with all applicable laws. Each Holder and each beneficial owner of Notes agree to provide any certification requested pursuant to this Section 2.7(d) and to update or replace such form or certification in accordance with its terms or its subsequent amendments. Furthermore, the Issuer shall require, as a condition to payment without the imposition of U.S. withholding tax under the FATCA, information to comply with FATCA or the Cayman FATCA Legislation requirements pursuant to clause (xiv) of the representations and warranties set forth under the third paragraph of Exhibit I-1, as deemed made pursuant to Section 2.5(g), or pursuant to clause (xv) of the representations and warranties set forth under the third paragraph of Exhibit I-2, as deemed made pursuant to Section 2.5(h), or pursuant to clause (xiii) of the representations and warranties set forth under the third paragraph of Exhibit I-3, made pursuant to Section 2.5(i), as applicable. Noteholders shall be required to provide to the Issuer, the Note Administrator or their agents all information, documentation or certifications acceptable to it to permit the Issuer or the Note Administrator to comply with its tax reporting obligations under applicable law (including FATCA and the Cayman FATCA Legislation), including any applicable cost basis reporting obligations. Each Holder is deemed to agree and represent that the Issuer and/or the Trustee or their agents or representatives may (1) provide such information and documentation and any
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other information concerning its investment in such Notes to the Cayman Islands Tax Information Authority, the U.S. Internal Revenue Service and any other relevant tax authority and (2) take such other steps as the deem necessary or helpful to comply with FATCA and the Cayman FATCA Legislation.
(e)    Payments in respect of interest on and principal on the Notes shall be payable by wire transfer in immediately available funds to a Dollar account maintained by the Holder or its nominee; provided that the Holder has provided wiring instructions to the Paying Agent on or before the related Record Date or, if wire transfer cannot be effected, by a Dollar check drawn on a bank in the United States, or by a Dollar check mailed to the Holder at its address in the Notes Register. The Issuer expects that the Depository or its nominee, upon receipt of any payment of principal or interest in respect of a Global Note held by the Depository or its nominee, shall immediately credit the applicable Agent Members’ accounts with payments in amounts proportionate to the respective beneficial interests in such Global Note as shown on the records of the Depository or its nominee. The Issuer also expects that payments by Agent Members to owners of beneficial interests in such Global Note held through Agent Members will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. Such payments will be the responsibility of the Agent Members. Upon final payment due on the Maturity of a Note, the Holder thereof shall present and surrender such Note at the Corporate Trust Office of the Note Administrator or at the office of the Paying Agent (or, to a foreign paying agent appointed by the Note Administrator outside of the United States if then required by applicable law, in the case of a Definitive Note issued in exchange for a beneficial interest in the Regulation S Global Note) on or prior to such Maturity. None of the Issuer, the Co-Issuer, the Trustee, the Note Administrator or the Paying Agent will have any responsibility or liability with respect to any records maintained by the Holder of any Note with respect to the beneficial holders thereof or payments made thereby on account of beneficial interests held therein. In the case where any final payment of principal and interest is to be made on any Note (other than on the Stated Maturity Date thereof) the Issuer or, upon Issuer Request, the Note Administrator, in the name and at the expense of the Issuer, shall not more than thirty (30) nor fewer than five (5) Business Days prior to the date on which such payment is to be made, mail to the Persons entitled thereto at their addresses appearing on the Notes Register, a notice which shall state the date on which such payment will be made and the amount of such payment and shall specify the place where such Notes may be presented and surrendered for such payment.
(f)    Subject to the provisions of Sections 2.7(a) and Section 2.7(e), Holders of Notes as of the Record Date in respect of a Payment Date shall be entitled to the interest accrued and payable in accordance with the Priority of Payments and principal payable in accordance with the Priority of Payments on such Payment Date. All such payments that are mailed or wired and returned to the Paying Agent shall be held for payment as herein provided at the office or agency of the Issuer and the Co-Issuer to be maintained as provided in Section 7.2 (or returned to the Trustee).
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(g)    Interest on any Note which is payable, and is punctually paid or duly provided for, on any Payment Date shall be paid to the Person in whose name that Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such interest.
(h)    Payments of principal to Holders of the Notes of each Class shall be made in the proportion that the Aggregate Outstanding Amount of the Notes of such Class registered in the name of each such Holder on such Record Date bears to the Aggregate Outstanding Amount of all Notes of such Class on such Record Date.
(i)    Interest accrued with respect to the Notes shall be calculated as described in the applicable form of Note attached hereto.
(j)    All reductions in the principal amount of a Note (or one or more predecessor Notes) effected by payments of installments of principal made on any Payment Date, Redemption Date or upon Maturity shall be binding upon all future Holders of such Note and of any Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Note.
(k)    Notwithstanding anything contained in this Indenture to the contrary, the obligations of the Issuer under the Notes and the Co-Issuer under the Offered Notes, this Indenture and the other Transaction Documents are limited-recourse obligations of the Issuer and non-recourse obligations of the Co-Issuer. The Class F Notes, the Class F-E Notes, the Class F-X Notes, the Class G Notes, the Class G-E Notes and the Class G-X Notes are limited recourse obligations of the Issuer. The Notes are payable solely from the Collateral and following realization of the Collateral, all obligations of the Co-Issuers, with respect to the Offered Notes, or the Issuer, with respect to the Class F Notes, the Class F-E Notes, the Class F-X Notes, the Class G Notes, the Class G-E Notes and the Class G-X Notes, and any claims of the Noteholders, the Trustee or any other parties to any Transaction Documents shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Notes against any Officer, director, employee, shareholder, limited partner or incorporator of the Issuer, the Co-Issuer or any of their respective successors or assigns for any amounts payable under the Notes or this Indenture. It is understood that the foregoing provisions of this paragraph shall not (i) prevent recourse to the Collateral for the sums due or to become due under any security, instrument or agreement which is part of the Collateral or (ii) constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured by this Indenture (to the extent it relates to the obligation to make payments on the Notes) until such Collateral have been realized, whereupon any outstanding indebtedness or obligation in respect of the Notes, this Indenture and the other Transaction Documents shall be extinguished and shall not thereafter revive. It is further understood that the foregoing provisions of this paragraph shall not limit the right of any Person to name the Issuer or the Co-Issuer as a party defendant in any Proceeding or in the exercise of any other remedy under the Notes or this Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
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(l)    Subject to the foregoing provisions of this Section 2.7, each Note delivered under this Indenture and upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights of unpaid interest and principal that were carried by such other Note.
(m)    Notwithstanding any of the foregoing provisions with respect to payments of principal of and interest on the Notes (but subject to Sections 2.7(f) and (i)), if the Notes have become or been declared due and payable following an Event of Default and such acceleration of Maturity and its consequences have not been rescinded and annulled and the provisions of Section 5.5 are not applicable, then payments of principal of and interest on such Notes shall be made in accordance with Section 5.7.
(n)    Payments in respect of the Preferred Shares as contemplated by Sections 11.1(a)(i)(20), 11.1(a)(ii)(18) and 11.1(a)(iii)(19) shall be made by the Paying Agent to the Preferred Share Paying Agent.
Section 2.8    Persons Deemed Owners. The Issuer, the Co-Issuer, the Trustee, the Note Administrator, the Servicer, the Special Servicer, and any of their respective agents may treat as the owner of a Note the Person in whose name such Note is registered on the Notes Register on the applicable Record Date for the purpose of receiving payments of principal of and interest and other amounts on such Note and on any other date for all other purposes whatsoever (whether or not such Note is overdue), and none of the Note Administrator, the Servicer, the Special Servicer, or any of their respective agents shall be affected by notice to the contrary; provided, however, that the Depository, or its nominee, shall be deemed the owner of the Global Notes, and owners of beneficial interests in Global Notes will not be considered the owners of any Notes for the purpose of receiving notices. With respect to the Preferred Shares, on any Payment Date, the Note Administrator shall deliver to the Preferred Share Paying Agent the distributions thereon for distribution to the Preferred Shareholders.
Section 2.9    Cancellation. All Notes surrendered for payment, registration of transfer, exchange or redemption, or deemed lost or stolen, shall, upon delivery to the Notes Registrar, be promptly canceled by the Notes Registrar and may not be reissued or resold. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section 2.9, except as expressly permitted by this Indenture. All canceled Notes held by the Notes Registrar shall be destroyed or held by the Notes Registrar in accordance with its standard retention policy. Notes of the most senior Class Outstanding that are held by the Issuer, the Co-Issuer, the Collateral Manager or any of their respective Affiliates (and not Notes of any other Class) may be submitted to the Notes Registrar for cancellation at any time.
Section 2.10    Global Notes; Definitive Notes; Temporary Notes.
(a)    Definitive Notes. Definitive Notes shall only be issued in the following limited circumstances:
(i)    at the discretion of the Issuer, at the direction of the Collateral Manager, with respect to any Class of Notes,
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(ii)    upon Transfer of Global Notes to an IAI or a QIB in accordance with the procedures set forth in Section 2.5(e)(ii), Section 2.5(e)(iii) or Section 2.5(e)(vi);
(iii)    if a holder of a Definitive Note wishes at any time to exchange such Definitive Note for one or more Definitive Notes or transfer such Definitive Note to a transferee who wishes to take delivery thereof in the form of a Definitive Note in accordance with this Section 2.10, such holder may effect such exchange or transfer upon receipt by the Notes Registrar of (A) a Holder’s Definitive Note properly endorsed for assignment to the transferee, and (B) duly completed certificates in substantially the form set forth in Exhibit I-3, upon receipt of which the Notes Registrar shall then cancel such Definitive Note in accordance herewith, record the transfer in the Notes Register in accordance with Section 2.5(a) and upon execution by the Co-Issuers, the Authenticating Agent shall authenticate and deliver one or more Definitive Notes bearing the same designation as the Definitive Note endorsed for transfer, registered in the names specified in the assignment described in clause (A) above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the Definitive Note surrendered by the transferor);
(iv)    in the event that the Depository notifies the Issuer and, with respect to the Offered Notes, the Co-Issuer that it is unwilling or unable to continue as Depository for a Global Note or if at any time such Depository ceases to be a “Clearing Agency” registered under the Exchange Act and a successor depository is not appointed by the Issuer within ninety (90) days of such notice, the Global Notes deposited with the Depository pursuant to Section 2.2 shall be transferred to the beneficial owners thereof subject to the procedures and conditions set forth in this Section 2.10.
(b)    Any Global Note that is exchanged for a Definitive Note shall be surrendered by the Depository to the Note Administrator’s Corporate Trust Office together with necessary instruction for the registration and delivery of a Definitive Note to the beneficial owners (or such owner’s nominee) holding the ownership interests in such Global Note. Any such transfer shall be made, without charge, and the Authenticating Agent shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of the same Class and authorized denominations. Any Definitive Notes delivered in exchange for an interest in a Global Note shall, except as otherwise provided by Section 2.5(f), bear the applicable legend set forth in Exhibits A-2, B-2, C-2, D-2, E-2, F-2, G-2, G-4, G-6, H-2, H-4 and H-6, as applicable, and shall be subject to the transfer restrictions referred to in such applicable legend. The Holder of each such registered individual Global Note may transfer such Global Note by surrendering it at the Corporate Trust Office of the Note Administrator, or at the office of the Paying Agent.
(c)    Subject to the provisions of Section 2.10(b), the registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(d)    [Reserved].
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(e)    In the event of the occurrence of either of the events specified in Section 2.10(a), the Issuer and the Co-Issuer shall promptly make available to the Notes Registrar a reasonable supply of Definitive Notes.
Pending the preparation of Definitive Notes pursuant to this Section 2.10, the Issuer and, with respect to the Offered Notes, the Co-Issuer may execute and, upon Issuer Order, the Authenticating Agent shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized denomination, substantially of the tenor of the Definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Definitive Notes may determine, as conclusively evidenced by their execution of such Definitive Notes.
If temporary Definitive Notes are issued, the Issuer and the Co-Issuer shall cause permanent Definitive Notes to be prepared without unreasonable delay. The Definitive Notes shall be printed, lithographed, typewritten or otherwise reproduced, or provided by any combination thereof, or in any other manner permitted by the rules and regulations of any applicable notes exchange, all as determined by the Officers executing such Definitive Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the applicable temporary Definitive Notes at the office or agency maintained by the Issuer and the Co-Issuer for such purpose, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Definitive Note, the Issuer and, with respect to the Offered Notes, the Co-Issuer shall execute, and the Authenticating Agent shall authenticate and deliver, in exchange therefor the same aggregate principal amount of Definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes.
Section 2.11    U.S. Tax Treatment of Notes and the Issuer; AML Compliance.
(a)    Each of the Issuer and the Co-Issuer intends that, for U.S. federal income tax purposes, the Notes (unless held by BRSP Sub-REIT or any entity disregarded into BRSP Sub-REIT) be treated as debt and that the Issuer be treated as a Qualified REIT Subsidiary (unless the Issuer has received a No Entity-Level Tax Opinion). Each prospective purchaser and any subsequent transferee of a Note or any interest therein shall, by virtue of its purchase or other acquisition of such Note or interest therein, be deemed to have agreed to treat such Note in a manner consistent with the preceding sentence for U.S. federal income tax purposes.
(b)    The Issuer and, with respect to the Offered Notes, the Co-Issuer shall account for the Notes, and prepare any reports to Noteholders and tax authorities consistent with the intentions expressed in Section 2.11(a).
(c)    Each Holder of Notes shall timely furnish to the Issuer and the Co-Issuer or their respective agents any completed U.S. federal income tax form or certification (such as IRS Form W-8BEN (Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)), IRS Form W-8BEN-E (Certificate of Foreign Status of Beneficial Owner for the United States Tax Withholding and Reporting (Entities)), IRS
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Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting), IRS Form W-9 (Request for Taxpayer Identification Number and Certification), or IRS Form W-8ECI (Certificate of Foreign Person’s Claim that Income is Effectively Connected with the Conduct of a Trade or Business in the United States)) or any successors to such IRS forms that the Issuer, the Co-Issuer or their respective agents may reasonably request and shall update or replace such forms or certification in accordance with its terms or its subsequent amendments. Furthermore, Noteholders shall timely furnish any information required pursuant to Section 2.7(d).
(d)    Each Holder will provide the Issuer or its agents with such information and documentation that may be required for the Issuer to achieve AML Compliance and shall update or replace such information or documentation, as may be necessary (the “Holder AML Obligations”).
Section 2.12    Authenticating Agents. Upon the request of the Issuer and, with respect to the Offered Notes, the Co-Issuer, the Note Administrator shall, and if the Note Administrator so chooses the Note Administrator may, pursuant to this Indenture, appoint one (1) or more Authenticating Agents with power to act on its behalf and subject to its direction in the authentication of Notes in connection with issuance, transfers and exchanges under Sections 2.4, 2.5, 2.6 and 8.5, as fully to all intents and purposes as though each such Authenticating Agent had been expressly authorized by such Sections to authenticate such Notes. For all purposes of this Indenture, the authentication of Notes by an Authenticating Agent pursuant to this Section 2.12 shall be deemed to be the authentication of Notes by the Note Administrator.
Any corporation or banking association into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation or banking association resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, without the execution or filing of any further act on the part of the parties hereto or such Authenticating Agent or such successor corporation. Any Authenticating Agent may at any time resign by giving written notice of resignation to the Note Administrator, the Trustee, the Issuer and the Co-Issuer. The Note Administrator may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent, the Trustee, the Issuer and the Co-Issuer. Upon receiving such notice of resignation or upon such a termination, the Note Administrator shall promptly appoint a successor Authenticating Agent and shall give written notice of such appointment to the Issuer.
The Note Administrator agrees to pay to each Authenticating Agent appointed by it from time to time reasonable compensation for its services, and reimbursement for its reasonable expenses relating thereto and the Note Administrator shall be entitled to be reimbursed for such payments, subject to Section 6.7. The provisions of Sections 2.9, 6.4 and 6.5 shall be applicable to any Authenticating Agent.
Section 2.13    Forced Sale on Failure to Comply with Restrictions.
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(a)    Notwithstanding anything to the contrary elsewhere in this Indenture, any transfer of a Note or interest therein to a U.S. Person who is determined not to have been both (i) a QIB or an IAI and (ii) a Qualified Purchaser at the time of acquisition of the Note or interest therein shall be null and void and any such proposed transfer of which the Issuer, the Co-Issuer, the Note Administrator or the Trustee shall have written notice (which includes via electronic mail) may be disregarded by the Issuer, the Co-Issuer, the Note Administrator and the Trustee for all purposes.
(b)    If the Issuer determines that any Holder of a Note has not satisfied the applicable requirement described in Section 2.13(a) (any such Person a “Non-Permitted Holder”), then the Issuer shall promptly after discovery that such Person is a Non-Permitted Holder by the Issuer, the Co-Issuer, a Trust Officer of the Note Administrator or a Trust Officer of the Trustee (and notice by the Note Administrator or the Trustee to the Issuer (if a Trust Officer has actual knowledge and makes such discovery)), send notice to such Non-Permitted Holder demanding that such Non-Permitted Holder transfer its interest to a Person that is not a Non-Permitted Holder within thirty (30) days (10 days in the case of a Non-Permitted Holder for ERISA-related reasons) of the date of such notice. If such Non-Permitted Holder fails to so transfer its Note or interest therein, the Issuer shall have the right, without further notice to the Non-Permitted Holder, to sell such Note or interest therein to a purchaser selected by the Issuer that is not a Non-Permitted Holder on such terms as the Issuer may choose. The Issuer, or a third party acting on behalf of the Issuer, may select the purchaser by soliciting one or more bids from one or more brokers or other market professionals that regularly deal in securities similar to the Note, and selling such Note to the highest such bidder. However, the Issuer may select a purchaser by any other means determined by it in its sole discretion. The Holder of such Note, the Non-Permitted Holder and each other Person in the chain of title from the Holder to the Non-Permitted Holder, by its acceptance of an interest in the Note, agrees to cooperate with the Issuer and the Note Administrator to effect such transfers. The proceeds of such sale, net of any commissions, expenses and taxes due in connection with such sale shall be remitted to the Non-Permitted Holder. The terms and conditions of any sale under this Section 2.13(b) shall be determined in the sole discretion of the Issuer, and the Issuer shall not be liable to any Person having an interest in the Note sold as a result of any such sale or exercise of such discretion.
(c)    If a Holder of a Note fails for any reason to (i) comply with the Holder AML Obligations (ii) such information or documentation is not accurate or complete, or (iii) the Issuer otherwise reasonably determines that such Holder’s acquisition, holding or transfer of an interest in any Note would cause the Issuer to be unable to achieve AML Compliance, the Issuer (or any intermediary on the Issuer’s behalf) shall have the right to (x) compel the relevant Holder to sell its interest in such Note or (y) sell such interest on such Holder’s behalf. The Issuer shall not compel sales for failure to provide such other information or documentation as may be required under the Cayman AML Regulations unless the Issuer reasonably determines the Holder’s acquisition, holding or transfer of an interest in such Note would result in a materially adverse effect on the Issuer.
Section 2.14    No Gross Up. The Issuer shall not be obligated to pay any additional amounts to the Holders or beneficial owners of the Notes as a result of any withholding or
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deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges.
Section 2.15    Credit Risk Retention. The EU/UK Retention Holder shall timely deliver (or cause to be timely delivered) to the Trustee (via email to cmbstrustee@wilmingtontrust.com) and the Note Administrator (via email to trustadministrationgroup@wellsfargo.com and cts.cmbs.bond.admin@wellsfargo.com) any notices contemplated by Section 10.12(a)(v).
Section 2.16    Exchangeable Notes; Exchange of MASCOT Notes.
(a)    At any time on or after the Initial MASCOT Note Issuance Date all or a portion of the Class F Notes and the Class G Notes (such Notes to be exchanged, the “Exchangeable Notes”) may be exchanged for proportionate interests in one or more classes of certain other Notes and vice versa (such Notes received in such an exchange, the “Exchanged Notes”). The Exchangeable Notes may be exchanged by the Holders thereof for (i) a corresponding MASCOT P&I Note with the same principal balance as the Class F Note or the Class G Note, as applicable, surrendered in the exchange but with a reduced Note Interest Rate, and (ii) an MASCOT Interest Only Note that has a notional balance equal to the principal balance of the MASCOT P&I Note received in such exchange with a fixed interest rate equal to such reduction in Note Interest Rate. Specifically, with respect to the exchange of the Class F Notes or the Class G Notes for corresponding MASCOT Notes, the per annum interest rates payable on the MASCOT P&I Notes and the MASCOT Interest Only Notes shall be determined, on the date of such exchange, by the holder of the Class F Notes or the Class G Notes, as applicable, surrendered in such exchange. The aggregate interest rates of the Exchanged Notes received in the exchange shall equal the aggregate interest rate of the Exchangeable Notes surrendered for exchange. The MASCOT Interest Only Notes are not entitled to any payments of principal and shall have an Aggregate Outstanding Amount of zero.
(b)    (i) With respect to the exchange of the Class F Notes or the Class G Notes for corresponding MASCOT Notes, each of (A) the Aggregate Outstanding Amount of the MASCOT P&I Note received in the exchange and (B) the Aggregate Outstanding Notional Amount of the MASCOT Interest Only Notes received in the exchange shall equal the Aggregate Outstanding Amount of the Class F Notes or the Class G Notes, as applicable, exchanged. The MASCOT Interest Only Notes are not entitled to any payments of principal and have an Aggregate Outstanding Amount of zero.
(ii)    The aggregate Note Interest Rates of the Exchanged Notes received in the exchange must equal the aggregate Note Interest Rate of the Exchangeable Notes surrendered for exchange.
(c)    Exchanges of the Class F Notes or the Class G Notes for MASCOT Notes and any subsequent exchange of such MASCOT Notes for the Class F Notes or the Class G Notes may occur repeatedly.
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(d)    With respect to an exchange of some or all of the Class F Notes or the Class G Notes, as applicable, the Holders of such MASCOT P&I Notes shall be entitled to exercise all the voting rights (including any rights as the Controlling Class) and objection rights that are allocated to such exchanged Class F Notes or Class G Notes, as applicable, and the Aggregate Outstanding Amount of such MASCOT P&I Notes shall be used to determine if the requisite percentage of Holders under this Indenture has voted, consented or otherwise given direction; provided that, in connection with any supplemental indenture that affects a Class of MASCOT Notes in a manner that is materially different from the effect of such supplemental indenture on the Class F Notes or the Class G Notes, as applicable, the Holders of the applicable MASCOT Notes shall vote as a separate class.
(e)    The Class F-X Notes and the Class G-X Notes are interest only notes that receive interest payments but do not receive principal payments. Interest on the MASCOT Interest Only Notes is calculated on a balance equal to the “Aggregate Outstanding Notional Amount,” which shall, as of any date, equal the Aggregate Outstanding Amount on such date of the related MASCOT P&I Note.
(f)    In order to effect an exchange of Exchangeable Notes, the Holder shall submit a duly executed Officer’s Certificate in substantially the form set forth in Exhibit T to the Note Administrator no earlier than ten (10) Business Days before the proposed exchange date and no later than five (5) Business Days before the proposed exchange date. Such Officer’s Certificate shall be in writing, and shall be sent to the Trustee and Note Administrator at its Corporate Trust Office. The Officer’s Certificate must be on the Holder’s letterhead, carry a medallion stamp guarantee and set forth the following information: (i) the CUSIP number of each Exchangeable Note and Exchanged Note; (ii) the Aggregate Outstanding Amount and the Aggregate Outstanding Notional Amount, as applicable, of the Notes to be exchanged; (iii) the Holder’s DTC participant name and number to be debited and credited; and (iv) the proposed exchange date. The exchange date with respect to any exchange may be any Business Day other than (1) the first or last Business Day of the month, (2) any Payment Date, (3) any Record Date or (4) any day between a Record Date and the next Payment Date. Any such notice shall become irrevocable on the second Business Day before the proposed exchange date. The Holder must pay the Note Administrator a fee equal to $5,000 for each exchange request and such fee must be received by the Note Administrator prior to the exchange date or such exchange shall not be effected. In addition, any Holder wishing to effect such an exchange must pay any other expenses related to such exchange, including any fees charged by DTC. The Note Administrator shall make the first payment on any Exchanged Note received by a Holder in an exchange transaction on the Payment Date related to the next Record Date following the effective date of such exchange. If the Exchanged Notes are Global Notes, such exchange shall be subject to the rules and procedures of DTC, and the Note Administrator shall have no responsibility with respect to the CUSIP eligibility of such Exchanged Notes. Any Holder requesting an exchange shall deliver any documents or information requested by the Issuer or Note Administrator in connection with such exchange. Upon compliance by the Holder with the foregoing requirements, the Note Administrator shall approve the instructions at DTC to effect any such exchange.
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Section 2.17    Effect of Benchmark Transition Event.
(a)    After the occurrence of a Benchmark Transition Event and the related Benchmark Replacement Date with respect to the then-current Benchmark, such Benchmark and the related Benchmark Determination Date for such Benchmark shall be replaced with the applicable Benchmark Replacement on the Benchmark Determination Date for such Benchmark Replacement as determined by the Designated Transaction Representative. The Designated Transaction Representative shall provide written notice of such determination of the Benchmark Replacement to the Issuer, the Co-Issuer, the Advancing Agent, the Trustee, the Note Administrator (who will post such notice to the Note Administrator’s Website), the Servicer, the Calculation Agent (if different from the Note Administrator), the Collateral Manager and the 17g-5 Information Provider (who shall promptly post such notice to the 17g-5 Website) no later than the earlier of (i) five (5) Business Days after such determination of the Benchmark Replacement and (ii) five (5) Business Days before the related Benchmark Replacement Date. Notwithstanding the occurrence of any Benchmark Transition Event, amounts payable on the Notes shall be determined with respect to the then-current Benchmark (which may be LIBOR as determined in accordance with methods specified in this Indenture) until the occurrence of the related Benchmark Replacement Date.
(b)    [Reserved].
(c)    In connection with the selection of a Benchmark Replacement, the Designated Transaction Representative shall direct the parties hereto to enter into a supplemental indenture in accordance with Section 8.1(b)(iv) to make any Benchmark Replacement Conforming Changes that the Designated Transaction Representative determines may be necessary or desirable to administer, implement or adopt the applicable Benchmark or the Benchmark Replacement and the related Benchmark Replacement Adjustment. Any failure to supplement this Indenture pursuant to Section 8.1(b)(iv) on or prior to the Benchmark Replacement Date shall not affect the implementation of a Benchmark Replacement on such Benchmark Replacement Date, it being understood such matters shall be binding upon the parties as described in clause (e) below pending the execution and delivery of any such amendment.
(d)    Any determination, implementation, adoption, decision, proposal or election that may be made by the Designated Transaction Representative pursuant to this Section 2.17, with respect to any Benchmark Transition Event, Benchmark Replacement Date, Benchmark Replacement, Benchmark Replacement Adjustment or Benchmark Replacement Conforming Changes including any determination with respect to a tenor, observation period, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, shall be conclusive and binding on the parties hereto and the Noteholders absent manifest error, may be made in the sole discretion of the Designated Transaction Representative and may be relied upon by the Issuer, the Co-Issuer, the Note Administrator, the Trustee, the Calculation Agent, the Collateral Manager, the Servicer and the Special Servicer without investigation. If the Calculation Agent is not able to calculate the Benchmark Replacement designated by the Designated Transaction
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Representative, then the Designated Transaction Representative shall provide, on a monthly basis, to the Calculation Agent, the rate determined using such Benchmark Replacement.
(e)    Notwithstanding anything to the contrary in this Indenture, the Designated Transaction Representative may send any notices with respect to any Benchmark Transition Event, Benchmark Replacement Date, Benchmark Replacement, Benchmark Replacement Adjustment, Benchmark Replacement Conforming Changes or any other determination or selection made under this Section 2.17, by email (or other electronic communication).
(f)    Each holder of an interest in any Note or Preferred Share, by the acceptance of its interest, shall be deemed to have irrevocably (i) agreed to the provisions of this Section 2.17, (ii) agreed that the Designated Transaction Representative shall have no liability for any action taken or omitted by it or its agents in the performance of its role as Designated Transaction Representative and (iii) released the Designated Transaction Representative from any claim or action whatsoever relating to its performance as Designated Transaction Representative.
ARTICLE 3

CONDITIONS PRECEDENT; PLEDGED COLLATERAL INTERESTS
Section 3.1    General Provisions. The Notes to be issued on the Closing Date shall be executed by the Issuer and the Co-Issuer, with respect to the Offered Notes, or the Issuer, with respect to the Class F Notes and the Class G Notes, upon compliance with Section 3.2 and shall be delivered to the Authenticating Agent for authentication and thereupon the same shall be authenticated and delivered by the Authenticating Agent upon Issuer Request. The Issuer shall cause the following items to be delivered to the Trustee on or prior to the Closing Date:
(a)    an Officer’s Certificate of the Issuer (i) evidencing the authorization by Board Resolution of the execution and delivery of this Indenture, the Servicing Agreement, the Future Funding Agreement, the Placement Agreement and related documents, the execution, authentication and delivery of the Notes and specifying the Stated Maturity Date of each Class of Notes, the principal amount of each Class of Notes and the applicable Note Interest Rate of each Class of Notes to be authenticated and delivered, and (ii) certifying that (A) the attached copy of the Board Resolution is a true and complete copy thereof, (B) such resolutions have not been rescinded and are in full force and effect on and as of the Closing Date and (C) the Directors authorized to execute and deliver such documents hold the offices and have the signatures indicated thereon;
(b)    an Officer’s Certificate of the Co-Issuer (i) evidencing the authorization by Board Resolution of the execution and delivery of this Indenture and related documents, the execution, authentication and delivery of the Offered Notes and specifying the Stated Maturity Date of each Class of Offered Notes, the principal amount of each Class of Offered Notes and the applicable Note Interest Rate of each Class of Offered Notes to be authenticated and delivered, and (ii) certifying that (A) the attached copy of the Board Resolution is a true and complete copy thereof, (B) such resolutions have not been rescinded and are in full force and effect on and as of
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the Closing Date and (C) each Officer authorized to execute and deliver the documents referenced in clause (b)(i) above holds the office and has the signature indicated thereon;
(c)    an opinion of Dechert LLP, special U.S. counsel to the Co-Issuers, the Seller, the Collateral Manager, the Retention Holder and certain Affiliates thereof (which opinions may be limited to the laws of the State of New York and the federal law of the United States and may assume, among other things, the correctness of the representations and warranties made or deemed made by the owners of Notes pursuant to Sections 2.5(g), (h) and (i)) dated the Closing Date, as to certain enforceability matters of New York law and certain 1940 Act issues, United States federal income tax and securities law matters, in a form satisfactory to the Placement Agents;
(d)    an opinion of Dechert LLP, special counsel to the Co-Issuers dated the Closing Date, relating to the validity of the Grant hereunder and the perfection of the Trustee’s security interest in the Collateral;
(e)    opinions of Dechert LLP, U.S. counsel to the Issuer and the Co-Issuer dated the Closing Date, relating to certain bankruptcy matters, including opinions regarding certain true sale and non-consolidation matters, in each case, in a form satisfactory to the Placement Agents;
(f)    an opinion of Dechert LLP, counsel to Seller dated the Closing Date, relating to certain U.S. credit risk retention rules, in a form satisfactory to the Placement Agents;
(g)    (i) opinions of Hogan Lovells, special counsel to BRSP Sub-REIT, dated as of the Closing Date, regarding certain 1940 Act issues and qualification and taxation of BRSP Sub-REIT as a REIT and (ii) an opinion of Hogan Lovells, special counsel to BrightSpire Capital, Inc. (f/k/a Colony Credit Real Estate, Inc.), dated as of the Closing Date, regarding certain 1940 Act issues;
(h)    [reserved];
(i)    an opinion of Maples and Calder (Cayman) LLP, Cayman Islands counsel to the Issuer, dated the Closing Date, regarding certain issues of Cayman Islands law;
(j)    opinions of Richards, Layton & Finger P.A., special Delaware counsel to the Co-Issuer and the Retention Holder, dated the Closing Date, regarding certain issues of Delaware law and regarding authority to file bankruptcy;
(k)    an opinion of Richards, Layton & Finger P.A., special Delaware counsel to the Seller, the Securitization Sponsor, the Advancing Agent, the Future Funding Indemnitor, the Special Servicer, and the Collateral Manager, dated the Closing Date, regarding certain issues of Delaware law;
(l)    an opinion of Polsinelli P.C., counsel to the Servicer, dated the Closing Date, regarding certain issues of United States and New York law, entity matters and enforceability of agreements to which the Servicer is a party;
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